text:
    No. 12,112.
    William M. Aiken vs. Widow Mary P. Gatlin.
    An ex parte waiver of proof of a substantial fact, by the defendant tutor, from which it may be interred that he consents to the judgment prayed lor, against his ward, may not be considered by the District Court. It may require that in lieu proof he offered in. open court (to sustain the prool waived) on an application to confirm a default,
    A PPBAL from the Oivil District Court for the Parish of Orleans, il Monroe, J.

      Wall & Watt for Plaintiff, Appellant.
    No appearance in Supreme.Court for Defendaut, Appellee.
    Argued and submitted April 25, 1896.
    Opinion handed down May 4, 1896.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued as sole legatee of the late Shepherd Brown, Mrs. Mary P. Gatlin, surviving spouse of James S. Gatlin, now wife of John P. Mangin.

The suit was brought against her individually and against her as tutrix and against her present husband, as co-tutor of the minor, James A. Gatlin, for lands, plaintiff alleged, was in their possession. The service was personal upon the defendants; they filed no appearance. On motion, regularly made, a default was entered of record.

In due time on the application to confirm the default, the judge of the District Court dismissed the suit and gave for reason: that the defendants failed to answer, but made affidavit individually and as representing the minor, to the effect that they are in possession of the land claimed, and that upon this and other evidence, it is proposed to confirm the-judgment by default against them and their ward; that the judgment, if thus rendered, will be, substantially, a consent judgment against a minor, and as such, at variance with the letter and spirit of the law, and further, that the plaintiff who claims as universal legatee of Shepherd Brown has failed to offer or file the judgment under which he claims, and that he has not shown that the lands said to be swamp lands, ceded by the United States Government to the State* and by the latter sold to them, have ever been listed and approved to the State by the proper officers of the United States Government.

From the judgment, dismissing the suit, the plaintiff prosecutes this appeal.

The admission of the defendants that they were in possession of the land claimed, as alleged, was signed by them on the 16th day of December, 1895. It was offered as evidence on hearing for confirmation of default on January 10, 1896. The form of the admission, the fact admitted and the date, (being the day on which the papers were served), are, in effect, a consent, to a judgment, particularly when it is borne in mind that no objection whatever was interposed to the suit. A real right was involved, one which a tutor is not authorized under the law to waive, or in any manner gratuitously abandon. It has been said of the tutor in the matter of the abandonment of the right of a ward: Qui non potest donare, non potest confiten. The tutor may make judicial avowals provided they are within the bounds of his authority, but he is without authority to confess judgment or to sign an acknowledgment in advance (without judicial sanction whatever) of a fact to be used in a suit against his ward.

The property of minors is administered under the diieetion of the courts through tutors who are their agents (particularly of the District Court), to whom they primarily owe an account of their gestión.

In confirming a default it is preferable, as a precedent, that the District Judge should have the opportunity to judge for himself; by the examination in his presence of witnesses who testify in support of material facts, or after an examination of witnesses contradictorily with the opposing party.

It is a question of practice of no great significance, possibly, in this case, and which called for no explanation from the worthy counsel, who acted in the utmost good faith and violated no rule' of propriety in accepting the admission tendered.

We feel constrained solely on the ground we have stated to agree with the District Court. We think when minors are concerned, it is decidedly advisable to avoid even the appearance of an ex parte consent. With reference to the evidence on other points we deem it unnecessary, at this time, to express an opinion.

It is therefore ordered and decreed that the judgment appealed from is affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,944.
    J. M. Hoyle et al. vs. Southern Athletic Club.
    When the requirements of the statute providing for notices to delinquent taxpayers are carried out, it would not follow that the notices were ineffectual because they did not reach the parties for whom intended. Citations properly made at domicile are well made, though not handed to the person intended to be served.
    When property is assessed in the name of an “ Estate of J. M. Hoyle,” a notice addressed by the tax collector to the “Estate of J. Bl. Hoyle,” placed and prepaid in the post-office, is not a compliance by the tax collector w.itli the requirements of law.
    A PPEAL from the Civil District Court for the Parish of Orleans. ^ Ellis, J.

      Frank, L. Richardson and Kernan & Wall for Plaintiffs, Appellees.

      J. Zach. Spearing, J. J. McLoughlin and Lloyd Posey for Defendants, Appellants.
    Argued and submitted March 11, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused May 18, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs’ action is petitory. Their petition refers to certain tax sales as those under which defendant claimed to hold, but they are referred to as absolute nullities and are asked to be so •decreed. Defendants’ possession is admitted.

The tax sales which defendants set up as those -under which they assert ownership are declared by plaintiffs to be absolutely null on two grounds:

1. Because the property was improperly assessed and sold as a half and as a third of certain squares instead of an undivided half •and an undivided third of those squares.

2. Because no notice was given in the tax proceedings to the succession of J. M. Hoyle or to the heirs of J. M. and Rebecca Hoyle, as required by Art. 210 of the Constitution. The deeds of sale are on printed forms prepared in advance to apply to all sales which might be made in tax proceedings in the First District of New Orleans. These forms contain blanks intended to be filled up so as to-make each particular form, when used, made to apply to some-special case which had arisen. After the usual recitals of acts of sale stating the appearance of the parties before the notary and the-capacities in which they appeared, one of the deeds to the State-proceeds to say that the deputy State rax collector of the First District of New Orleans declared “that acting by virtue of the power vested in him by Act No. 77 of the Legislature of 1880, the tax or-assessment rolls of the parish of Orleans on real estate were duly filed and recorded in the moi'igage office of the parish and with him,, the tax collector; that as soon as the said rolls were thus filed he, the said tax collector, published a notice once a week for-two weeks in a paper published in the parish of Orleans, setting-forth in substance that the taxes assessed on real 'estate in the-said parish in the year 1881 are set forth in said tax rolls on file in said tax collector’s office and in the said mortgage office; that f-he-said taxes are due and would become delinquent on December 31,. 1881; that the same will draw interest from said December 31, 1881 (we insert the dates as mentioned in one of the deeds so as to make the description of the acts clearer), until paid or sold in accordance with Act 210 of the Constitution. * * * And the said tax collector further declared that as soon after the second day of January, 188-, as possible he addressed to each taxpayer who had not paid his or her taxes on immovable property for said year 1881 a written or printed notice, setting forth in substance that the State and city taxes assessed to and against said taxpayer on immovable property in said parish (stating in said notice the assessed value of each specific piece of said property and the taxes due thereon) fell due the day the tax rolls were filed in the mortgage office, stating the date of such filing, and that the same should have been paid in full on or before the first of the month succeeding said filing; that said taxpayers became delinquent for said taxes on the first day of said month; that the said taxes will bear interest at the rate of eight, per cent, per annum after December 31,1881, until paid in full; that, after the expiration of twenty days from the date of said notices he, the tax collector, will advertise for sale each specific piece of immovable property on which said taxes are due in the manner and form provided for judicial sales; that at the principal front door of the Civil District Court of said parish he will sell within the legal hours for judicial sales, for cash and without appraisement, such portion of each specific piece of property as the debtor shall point out, and that in case the taxpayer will not point out sufficient property he, the said tax collector, will at once sell for cash and without appraisement the least quantity of said specific property which any bidder will buy for the amount of said taxes, interest and costs.

And the said tax collector further declared that he delivered to each taxpayer in person or left at his residence or place of business or mailed to him by registered letter, postage prepaid, addressed to the post office of said taxpayer; one of the foregoing mentioned notices >>****

The act goes on to recite the fact of the publication in a newspaper in New Orleans of a general notice, substantially of the same form, addressed to all known and unknown owners of immovable property in said district, which is described on the tax rolls; “ that at the expiration of twenty days, counting from the day the last of said notices were delivered, mailed, published or posted, the tax collector proceeded to advertise for sale in two newspapers mentioned in the manner provided for judicial advertisements and in the form prescribed by law (and after having complied with all the other requisites of law), all the immovable property on which said taxes were due, being the properties hereinafter described to enforce the payment of State taxes due on same for the year 1881, the said properties being advertised in the names of person or persons on which each piece was respectively assessed. That after said publication * * ■ each piece was separately offered for|sale to enforce the payment of said taxes due on same * * that after repeated offerings and after a strict compliance with all other requirements of law, the same, together with all improvements thereon, were each separately bid in for and adjudicated to the State by said tax collector, no one having offered to pay said tax or bid on said property at all or any portion thereof, which saidproperties so adjudicated are hereinafter separately described. “ Immediately following each description ” (so the deed declares) “ is the name of the person or persons in whose name the said property was assessed for the said year 1881, together with the total amount for which said properties were respectively offered and for which in default of any bid or any offer to pay each specific piece of property hereinafter described was respectively and separately adjudicated to the State ” * * *

Below followed the description of one of the properties claimed by the defendant in this suit — that described as one-half of square No. 838 as above stated. Immediately following the description is the recital “ which said property was duly and legally assessed for 188— and advertised in the name of Est. J. M. Hoyle.

“ Total amount for which above property was adjudicated to the State, including taxes of 1881, interest on same to date of adjudication, costs, fees, commission, advertisement, etc., eleven and 65-100 dollars. * * * And in pursuance of said adjudication and by virtue of the'provisions of said Act No. 77 of 1880, and the law for such cases provided, the said tax collector, and in the name and on behalf of the State of Louisiana, does by these presents, grant, bargain, sell, assign, transfer, set over and deliver unto the State of Louisiana the property hereinbefore described, with the right to be put into actual possession thereof by order of any court of competent jurisdiction.” The recitals in the deed for the second piece of property were substantially the same as those just given; the act under which the tax collector declared he was proceeding being Act No. 96 of 1882.

The recital as to the first notice sent out after the filing of the tax rolls in the Recorder’s office was a general statement that after the second day of January, 188 — , he addressed and mailed to each taxpayer who had not paid his or her taxes, for said year 1882, a notice setting forth in substance that the State taxes assessed to and against said taxpayer for said year 1882 on immovable property in said parish (stating in said notice the property assessed and the assessed value of said property and taxes due thereon) were then due; that the rolls had been filed in the mortgage office; that said taxes must be paid within twenty days after the mailing of said notices; that after the expiration of twenty days from the date of the mailing the property would be advertised, etc. This is followed by a recital that “one of said notices, correct in form and substance, was duly and legally mailed to the delinquent taxpayer hereinafter named.”

The only mention made of the name of Hoyle in either deed is to be found in that portion in which it is declared that the properties were assessed in the name of “Esc. of J. M. Hoyle.”

W. D. Hoyle, one of the sons of J. M. Hoyle, and who was appointed tutor of his minor brothers and sisters, was twice placed upon the stand as a witness to prove that he had never, either indi - vidually or as tutor, received the notices referred to in the deeds of the tax collector. When first on the stand his statement was simply that he had no recollection of having received the notices. On his second examination he stated that since his first examination he had refreshed his memory and he was then certain he had not done so. While the reasons which he assigns as those which had caused him to become fixed in his opinion did not, we think, furnish a very satisfactory basis for him to have done [so, none the less the case comes to us with a positive denial on his part, to which the District Judge, who saw and heard the witness, gave credit. The different heirs who have become of age were also placed on the stand and each made as to himself and herself a similar denial.

We do not think this testimony by itself would conclusively settle the question of notice as entering as a factor in determining the legality of the tax s ales. It might well be that in point of fact no notices were actually received by any of the parties and yet the sales could stand, for if the assessments were properly made and the tax collector in giving the notices conformed to the requirements of the statute and of the law, it would not follow that they would be ineffectual because they did not reach the parties they were intended to reach. It frequently happens that citations made through service at the domicile are mislaid or are not handed to the person to be cited — none the less the citations are well made. Again, in matters of notice of dishonor of notes, if the requirements of a statute be followed as to the time, place and mode of service, as for instance by placing a letter properly addressed and prepaid in the postoffice within the time fixed by law, it has been held that it is not necessary to prove that the letter was received and that miscarriage would not prejudice the party giving notice (see Woods Byles on Bills, p. 282, Eighth Edition). We are, therefore, to inquire whether there be evidence before us going to show that notice was properly sent. It will be noticed, as we have said, that in neither of the deeds is the name of Hoyle mentioned in any place other than that where the property is referred to as having been assessed “Est. of J. M. Hoyle.” It is nowhere intimated that the tax collector knew or had taken any trouble to ascertain who the administrator or representatives of J. M. Hoyle were. There is no direct averment or recital that the Estate of Hoyle was delinquent for the taxes for the year in which the property was sold; that fact is only reached inferentially and there is no attempt by the tax collector to come down to particulars in reference to notices. There is a general sweeping recital that notices to all delinquent taxpayers on the rolls were given, but there is no special mention of any particular person or persons having been notified and no attempt to show to whom any particular mailed notice was addressed. Acting on mere presumptions as we have to do, we would have to assume that the notices were placed in the postoffice, addressed to “ Est. of J. M. Hoyle ” that is, the tax collector, in giving the notice, followed the assessment. Would such a notice so sent fulfil the requirements of the law ? Asa matter of course, on the face of the papers, the.collector was advised he had to deal with a succession. The assessment roll itself disclosed that fact to him.

Under Sec. 35 of Act No. 77 of 1880, the tax collector was directed to either deliver a notice to each taxpayer in person or to leave one at his residence, or to mail him one by registered letter, postage prepaid, addressed to the postoffi.ee of said taxpayer.

Under Sec. 50 of Act No. 96 of 1882, the tax collector was directed to either deliver a notice to each taxpayer in person or to leave one at his residence or place of business, or to mail him notice by postal card, addressed to the postoffice of said taxpayer.

Was a letter addressed to “Estate of J. M. Hoyle,” and placed prepaid in the postofflee, a fair and reasonable compliance by the tax collector with the requirements of law. Article 210 of the Constitution, in requiring that notice should be given to the taxpayer, evidently contemplated that reasonably diligent steps should be taken to make the notice effectual. It has always been recognized that a strict observance of the formalities called for by the law is exacted in matters of tax sales — a stricter observance in fact than in almost any forced proceeding under and through which ownership of property is made to shift. In view of this fact we have examined authorities, bearing upon the mode of addressing notices in matters other than tax proceedings. In matters of the notice of bills we find that it was held in Massachusetts Bank vs. Oliver, 10 Cush. (Mass.) 557, that a notice of dishonor addressed “ to the estate ” of the deceased endorser without inquiry shows lack of diligence, and is therefore bad. In Christmas vs. Fluker, 7 Rob. 13, a notice £' to the legal representatives” of a deceased endorser was pronounced insufficient... In that case the heirs had been placed in possession of the succession before the maturity of the note.

In the present ease the heirs (with the exception of one who was tutor of the others) were all minors, who under the law itself were made to accept the succession of their father and mother under benefit of inventory. There is no evidence of their having been recognized as heirs or placed in possession.

In Louisiana State Bank vs. Dumartrait, 4 An. 483, it was held that where the death of an endorser was known and his succession was represented by an executor, notice should be sent to him and a letter addressed to the deceased was bad.

■ In Maspero vs. Pedesclaux, 22 An. 227, this court held that a notice of dishonor, though addressed to a deceased endorser, would hold the heirs if it could be shown as an actual fact that they had received the notice. In the case at bar, the parties swear they did not receive the notice.

In City of New Orleans vs. Heirs of Schmidt, 10 An. 771, it was held that an advertisement (to effect notice) in the name of the “Heirs of Schmidt” was insufficient on account of vagueness. To the same effect is City vs. Heirs of St. Romes, 28 An. 17. In City vs. Estate of Samuel Stewart, 28 An. 180, the executrix of the succession of Stewart appealed from a judgment against “ the estate of Samuel Stewart ” for taxes due the city of New Orleans, on the ground that the citation (by publication) was not sufficient, because an estate was a thing and not a person. The judgment below was affirmed. In City vs. Ferguson, 28 An. 240, defendant pleaded that the assessement or publication was improperly made in the name of Mrs. J. A. Ferguson simply, and the words “Estate of’- ’ were not added as they should have been, seeing that the assessment was made after her decease. The court in reply said that the object in giving the name at all was obvious, the sole purpose being to describe or identify the property taxed and the tax assessed by the use of the name of Mrs. J. A. Ferguson, which would have been sufficient, if she were still living — that after her decease the word “Estate” would no more clearly indicate that the property taxed was that known as Mrs. Ferguson’s.

In Irvin vs. City, 28 An. 670, publication was made in the name of Richard Murphy, who had been dead for sever.al years. Judgment by default Was confirmed on this publication as a citation. An injunction issued against a sale of the property on behalf of a minor, Richard Murphy, who acquired the property from Richard Murphy, having been set aside by the District Court, this judgment was affirmed on appeal. Mr. Justice Wyly dissenting.

It will be noticed that in these cases the parties in interest came forward and contested prior to a sale of their property, showing they were fully advised of the claims set up against it.

After consideration of this case we have reached the conclusion that the adjudication to the State must be held to have conveyed no title to it for want of proper notice. The State having no title conveyed none to the defendant.

The judgment appealed from is affirmed.


author: Miller, J.

text:
    No. 11,999.
    W. R. Wadsworth vs. The City of New Orleans.
    The court again affirms the conditions of transfers of claims against the city of New Orleans for payment out of budgeted appropriations, prescribed by previous decisions. 42 An. 164; 43 An. 78; 46 An. 545.
    Creditors of the city claiming payment under appropriations of an amended budget have no exclusive rights of payment from the revenues placed on such budget. Acts 1877, Extra Session, No. 30, Sec. 3; Act No. 20 of 1882, Sec. 66; Act No 88 of 1884; No. 109 of 1886; 36 An. 938.
    Tlio court again affirms that the items on the original budget have the right of priority of payment over creditors claiming under the original budget. Ibid.

    And it is again affirmed that the parties seeking payment from budgeted appropriations are restricted to such appropriations, and have no action against the city until there are funds to the credit of such appropriations. 46 An. 545, and cates there cited.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.

      Louque & Pomés for Plaintiff, Appellant.

      E. A. O’Sullivan, City Attorney, Henry Renshaw and Horace L. Du-four, Assistant City Attorneys, for Defendant, Appellee.
    Argued and submitted April 7, 1896.
    Opinion handed down May 4, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his suit to recover on certificates of appropriation issued by the city for wages of laborers, and on claims alleged to have been acquired by plaintiff against the city.

The defences are that the plaintiff has not proved ownership of the certificates or claims; that if that proof is deemed administered the claims and certificates are payable only out of the revenues of the year in which the claims accrued, or for which the certificates issued, and, finally, that there are no funds from which the plaintiff can demand payment.

In previous decisions we have maintained that, in order to acquire rights against the city for amounts due for wages of laborers, or to otherparbies specified in the ordinances or carried on the pay rolls, the receipt of the original creditor for the certificate or his signature to the transfer of his claim must be furnished to the city. This is a rule of protection to the city, and is, in terms, exacted by the ordinance under which the certificates sued on were issued. Neugass vs. City of New Orleans, 42 An. 164; Wadsworth vs. City, 46 An. 445; Neugass vs. City, 43 An. 78. In this respect we do not perceive that this record is materially different from that before us on the plaintiff’s previous appeal. The plaintiff has produced testimony that the claims mainly, if not all for laborers’ wages, were acquired from them by plaintiff’s transferee, but as we appreciate the testimony, none of these laborers have placed their names on transfers on the books of the city or on transfers on file in the proper department of the city government. Nor is the case different in respect to the certificates. We gather from the record that the orders or transfers from the primary creditor of the city were brought to a broker, who furnished money on the faith of their orders, and who obtained the certificates, with no acquittance or receipt to the city from the original creditor or without even leaving on file with the comptroller or other officer the order or transfer of the creditor. This method of business, if recognized, would, in our view, expose the city to loss and be a departure from the mode implied, if not expressed, by the charter, and our decisions. But on this issue of ownership, we think it proper to reserve plaintiff’s rights. We do this the more readily, because, in our view, he has no right to present payment, and on another trial he may supply the testimony deemed essential on the issue of ownership. Here we might close the opinion, but to guard .against the renewal of useless litigation, we think it proper to again express our views as to the right of action of creditors of the city claiming payment from budget appropriations.

The petition not only asserts the right of payment out of the revenues of 1882, but claims an absolute judgment for the amount of the claims and certificates. We think our jurisprudence, based on express legislation, is that claims of the character, whatever their form, are restricted for payment to the revenues of the year in which the claims accrued or certificates were issued. Act 1877, Extra Session, No. 30; City Charter, Act No. 20 of 1882, Sec. 66; No. 88 of 1884; 109 of 1886; Barber Co. vs. City, 43 An. 464.

' Another contention of plaintiff is, that as his claims are based on the appropriations in the amended budget of the city, of 1882, he is entitled to payment from the revenues placed on that budget, of which he claims there is a sufficiency to pay him. It appears that the city has on hand of these revenues of 1882, six thousand five hundred dollars, but thirty-four thousand dollars of the items on the original budget of that year are unpaid. The revenues on the amended budget were the anticipated excess of the appropriations on the original budget, and estimated income of the year from other sources. The plaintiff’s theory is: two budgets and two classes of creditors of the same year, corresponding with the budgets. If this classification of separate creditors and separate budgets is to be introduced, it would, in our view, be in marked contrast with the simplicity and economy proposed to be,secured in the financial administration by our law in providing for one annual budget with suitable provision, not to be exceeded for all creditors of the city entitled to payment from the budget appropriations. (Authorities cited above.) The contests in the courts of transferees of claims against the city and holders of city certificates competing for payment from budgeted appropriations, under laws designed to secure economy and an orderly administration of the city finances, have imposed huge expenses wholly extraneous to the legitimate purposes of municipal government. The litigation of the city would in our view, be largely increased by the classification of creditors and of assets for their payment, we are asked to recognize in this case. We can find no warrant in our law to give parties claiming to be paid from appropriations on the amended ■budget, any exclusive or special rights on the revenues placed on that budget. Our predecessors held that amended budgets were permissible, but that the items on the original budget were to be first paid, and hence the payment of any appropriation on the amended budget was enjoined until payment of the expenditure provided for on the original budget. That obstacle to plaintiff confronts him. In that case the injunction sought was by parties holding claims under the original'budget to restrain payment to those whose rights were based on the amended budget. The case necessarily involved the question presented here, in respect to the application of the supposed surplus of the appropriations. The principle of the decision extends as well, we think, to sources of income not brought on the original budget. The budget, as first framed, was entitled to be first paid, is the leading idea of the decision; and all the annual revenues are pledged for the purpose. Shotwell vs. The City, 36 An. 938, and especially top paragraph on page 940. The decision, it is said, is not binding, except as between the parties. To give effect to plaintiff’s pretensions would be to disturb that effect. Irrespective of that, we adopt the principle there laid down. The Shotwell decree was in the interest of private parties. In the public interest requiring one budget and forbidding an amended budget conferring special rights on those claiming under it, in our opinion, the pretensions of the plaintiff must be rejected.

We have held and again hold that parties like plaintiff have no action against the city unless there are funds to the credit of the appropriations out of which they are entitled to be paid. The record shows no such fund. 46 An. 345 and cases there cited.

We gather from the record that the revenues claimed to be exclusively applicable to the items on the amended budget, as well as those on the original budget, have been applied to no other purpose than as directed in the Shotwell decision; that is, to the appropriations on the first budget. This answers, we think, the contentions that the city is liable because of an alleged diversion of funds. The argument for plaintiff, in this respect, simply is another form of assertion of exclusive rights on the revenues brought on the amended budget.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled and reversed, and that there be judgment now rendered against plaintiff as in case of non suit — costs to< be paid by him.


author: Watkins, J.

text:
    No. 12,035.
    J. M. Billgery et als. vs. Land Trust of Indianapolis.
    An adjudication of real estate at a public judicial sate, made under and in pursuance of the provisions of Act 82 of 1884, is bound to pay all the taxes due thereon at the time of sale, and which were theretofore assessed under current revenue laws since 1880, and which he had assumed and was legally bound to assume as a part of the purchase price thereof.
    But in the absence of any pertinent decision of this court to the contrary at the time such adjudication was made, it was competent for the Circuit Court of the United States, holding sessions in the State of Louisiana and having jurisdiction inpersonam of one of the parties to a litigation involving such an adjudication, to place such interpretation upon the provisions of said legislative act as in its judgment was thought to be legal and just.
    And such judgment will be held binding by this court between the parties thereto .and their vendees and assigns, notwithstanding it has, in other cases since, put & somewhat different interpretation upon that statute.
    <A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Frank L. Richardson and William, WinansWall for Plaintiffs, Appellants.

      F. Howard MeCaleb for Defendant, Appellee.
    Argued and submitted March 26, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused May 18, 1896.
   The opinion of the court was delivered by •

Watkins, J.

The object of this suit is the annulment and revocation of a tax sale of certain described improved real estate, situated in New Orleans, of which the plaintiffs claim to have derived title by inheritance from Joseph and Margaret Billgery, their deceased ifather and mother, and their averment is, that they acquired same .at.sheriff’s sale at the suit of the city of New Orleans against one JLacroix on the 30th of September, 1874, as evidenced by a sheriff’s jproees verbal, duly recorded in the conveyance office.

Petitioners aver .that the defendant sets up a claim of ownership to said property, through and by virtue of a tax sale made to Doaningo Negrotto, who conveyed same to the Western Land and Emigration Company, from whom defendant claims to have derived title.

That Negrotto became adjudicatee thereof at a judicial sale made by the tax collector in the year 1888, under and by virtue of the authority of Act 82 of 1884; but that same was absolutely null and void, because the tax collector was without authority to execute a deed to him until he had complied with the essential condition precedent of that statute, to-wit: “the payment of all taxes due both city and State upon said property subsequent to the year 1880,” which he and his vendees had failed to do, thus producing a cloud upon their title.

They then aver that since the aforesaid adjudication to Negrotto, they have obtained a certificate of redemption from the auditor, having paid all of the taxes which had been assessed against said property since 1880, prior to the aforesaid adjudication; and that, in consequence of said payment of taxes, and redemption thereof from the auditor, their ancient title by inheritance had revived and become established.

The prayer of their petition is, that there be “ judgment restraining defendant from further slandering petitioner’s title by setting up any claims of ownership; decreeing their alleged title null and void; and erasing and canceling the same from the records of the conveyance office.”

For answer the defendant pleads a general denial and specially denies that plaintiffs are the owners and possessors of the property; and assuming the character of plaintiffs in reconvention, it alleges full and complete ownership thereof, “having acquired same from the Western Land and Emigration Company, which company purchased from Domingo Negrotto, who acquired the same at tax sale made by the State tax collector, under provisions of Act 82 of 1884.

“ That all the taxes subsequent to the year 1880, both city and State, due and owing on the said property and assumed by the purchaser, were paid. That the certificates of redemption referred to in the plaintiffs’ petition were issued after .the payment of said taxes, assumed and due by the purchaser at said sale, and in violation of a judgment and decree of the United States Circuit Court, rendered in the case of Western Land and Emigration Company vs. George Guinault, C. Harrison Parker and Isaac L. Patton, State Tax Collectors, No. U. S. Circuit Oourt, which decree is binding upon the State; and appearer pleads the same as res judicata.”

The defendant further pleads the prescription of three and five years in bar of plaintiffs’ demand.

The prayer is for judgment rejecting the plaintiffs’ demand, and for judgment upon its reconventional demand decreeing it to be the true and lawful owner of the property, and maintained and quieted in the possession thereof.

The parties agreed upon a statement of facts 'upon which the case was submitted; and upon the trial thereof there was judgment pronounced in favor of the defendant, and the plaintiffs have appealed.

From the statement of facts we find that the admissions conform to the allegations of the petition and answer, and the transcript otherwise discloses that the heirs of Billgery paid into the State treasury the amount of the taxes of 1880, 1881, 1882 and 1883 which had been assessed against the property in dispute, and obtained the auditor’s certificates of redemption therefor, bearing date May 18, 1884.

That on the 23d of August, 1886, said property was, by the tax collector, adjudicated to Domingo Negrotto, under and in pursuance of the terms and provisions of Act 82 of 1884, in,the forced collection of the taxes assessed against the same for the years 1875, 1876, 1877 and 1888, and remaining unpaid; and upon 15th of December, 1888, the tax collector executed an act of sale therefor in favor of the Western Land and Emigration Company as the assignee of Ne-grotto, which was registered in the book of conveyances immediately afterward.

That the act of sale, amongst other things, declares that, as part of the purchase price, ‘ ‘ the said purchaser hereby assumes and promises to pay all the State, city, parish and municipal taxes on said property for the year 1880 and subsequent years, together with all interest, penalties, costs, charges, fees and commissions which may be due and not paid.”

That the certificate of the tax collector bearing date January 10 1894, shows that the taxes which were assessed against this property in years prior to 1879 were paid and satisfied by the act of sale above described; and those for the years 1880, 18.81, 1882 and 1884, aggregating five dollars, were satisfied by the heirs of Billgery, and form the basis of the auditor’s certificate of redemption; all other taxes having been paid by the defendant and its predecessors in title.

That this property was adjudicated to the State by the tax collector on the 29th of November, 1895, in satisfaction of delinquent taxes of 1898, and the title was duly recorded soon afterward.

It appears from the transcript of the cause, which is in evidence, that on the 81st of December, 1888 — immediately after its acquisition of the property — the purchaser instituted a suit in the Circuit Court of the United States, entitled The Western Land and Emigration Company vs. George Guinault et als., bearing docket No. 11,764, the object and purport of which, in so far as it has a bearing upon the issues in this suit, may be summarized as follows, viz.:

That the taxes, tax mortgages, and the tax privileges in favor of the State of Louisiana and the city of New Orleans for the years 1880, 1881, 1882 and 1888, were extinguished by the prescription of three and five years; and “ that the time for the acquisition of said prescription had elapsed and run out before it became the owner of said properties,” including the property in suit.

That the complainant had paid all the State and city taxes due upon said properties which had been assessed against it for the years 1884, 1885, 1886,1887 and 1888, in the name of the estate of Billgery, being the five years previous to the adjudication to Negrotto under Act 82 of 1884.

That complainant had demanded of the Recorder of Mortgages the cancellation and erasure of the inscription of said tax liens and mortgages for the years specified without avail; and, on that account, he averred that same had the effect of casting a cloud upon his title which should be removed therefrom.

That the city officers who are charged by law with the collection of city taxes, and the State tax collector for the district in which said property is situated, pretend and assert that said taxes are still due and owing, and threaten to advertise for sale, and sell said property for the payment thereof, if same are not immediately paid, notwithstanding same have been extinguished by prescription.

That complainant prayed for and obtaiaed an injunction against each one and all of said officers, restraining and prohibiting any such advertisement or sale as contemplated, and for an appropriate decree perpetuating same, and commanding the recorder to cancel said interfering inscriptions for the grounds and reasons therein stated.

That on final hearing of complainant’s bill the injunction was perpetuated, and the tax collectors enjoined from any further proceeding looking to the collection of said taxes of 1880, 1881, 1882 and 1883, on the ground and for the reason that same were prescribed; and it also was decreed that the Recorder of Mortgages should cancel and erase from the books of his office the aforesaid tax inscriptions against said property.

On this state of facts we have distinctly raised the question of law, whether or not the defendant’s title is shielded and protected by that judgment and decree, from the demands and pretensions of the plaintiffs under their auditor’s certificate of redemption, procured five years thereafter and founded upon a payment of the identical taxes which it decreed to have been prescribed at the time of Negrotto’s acquisition under Act 82 of 1884.

The Oircuit Oourt in said cause decided “ that the meaning of Sec. 5 of Act 82 of 1884 is, that the property sold at tax sale should pass to the purchaser subject to such liens for unpaid taxes as could have been enforced against the same in the hands of the former owner in case there had been no sale; and that it was not the intention of the legislation in said act to revive against property sold for taxes any lien that had already ceased to exist thereon.”

That decree was rendered in March 1889 — more than one year prior to the decision of the case of State ex rel. Martinez vs. Tax Collector, 42 An. 677, which was decided in May 1890. Western Land and Emigration Company vs. Guinault, Recorder, 38 Federal Reporter, 287.

Consequently, anything that was said in the Martinez case could not be given any retrospective effect, and control the decision of the Oircuit Oourt in Che case of the land and immigration company.

The law of this State applicable to tax inscriptions, as interpreted by this court immediately previous to the. decision of the Circuit Court, was, that they were prescriptible by the lapse of three years, under the statute of 1877. Succession of Stewart, 41 An. 127.

That decision involved taxes and tax inscriptions of 1880, 1881, 1882 and 1883, just as the decision of the Circuit Court did — and it was rendered in the month of February, 1889, just one month prior to the Circuit Court decree, and it was, therefore, a precedent for that court, in rendering its decree.

This case differs essentially from that of Remick vs. Lang, 47 An. 914, in that in the adjudication therein, the purchaser assumed and promised to pay the taxes for the years 1880, 1881, 1882, 1883 and 1884, as part of the purchase price; and he subsequently defaulted in paying the taxes subsequently assessed for the years 1885, 1886, 1887, 1888, 1889, 1890, 1891 and 1893; the plaintiff, as original owner, making payment of them all in 1893 and procuring a certificate of redemption from the auditor reinstating his primordial title.

On the contrary, the Western Land and Emigration Company filed; the aforesaid suit for the cancellation and erasure of the taxes of 1880,. 1881, 1882 and 1883, and procured a decree of the Circuit Court adjudging said taxes to have been prescribed at the time the tax sale-was made; and said company, at onee, paid all the remaining taxes for-the years 1884,1885,' 1886,1887 and 1888 — the adjudication under Act 82 of 1884 taking place in December of 1888 — and it caused the-property to be thereafter assessed in its name and paid annually the-taxes thereon assessed.

The property was in this situation in 1894, when the plaintiffs, assuming the Circuit Court decree to have been absolutely void, paid to the State treasurer, voluntarily, the taxes it had adjudged to be-prescribed, and upon presentation of his receipt to the auditor, he issued a certificate of redemption to them — said taxes being one dollar for 1880, one dollar for 1882, and one dollar and one-half for the years 1883 and 1884, that is to say, five dollars in all.

And this was done in the face of the fact that the Circuit Court had jurisdiction of that suit ratione persones, by reason, the complainant being domiciled in and a citizen of another State-than Louisiana;, and of the fact that the complainant had subsequently sold and conveyed, by a duly recorded title, the property in controversy to a citizen of another State — being herein represented by a curator ad hoe — who had made its purchase upon the faith of the decree of the Circuit Court and prior decisions of this court interpreting the tax statutes of this State applicable thereto.

Section 34 of Act 98 of 1886 provides that “ all taxes, tax mortgages and tax privileges shall be prescribed by three years -from the date of filing the tax rolls,” etc.

That statute applies to the taxes under consideration here, the payment of which Negrotto assumed as a part of the price he was to pay, and from the effect of which his vendee was relieved by the decree of the Circuit Court; and the decree of that court finds an exact parallel in the case of State ex rel. Powers vs. Recorder, 45 An. 566, in which this court said in passing upon a similar question:

‘‘Consequently, we find that the inscriptions of liens or mortgages securing city taxes against the property for and during the years 1877 to 1886, inclusive, should be canceled and erased from the mortgage records of the parish ” — nothwithstanding the relator had assumed the payment of all the taxes assessed against the property as part of the price of his acquisition from the State, through the auditor’s deed of sale.

But it is argued on the part of plaintiffs that the Circuit Court had no jurisdiction as to the State, as she could not be sued without her consent previously obtained; and that the tax collector did not have the capacity to represent her in the premises.

In so far as the capacity of the tax collector is concerned there can be no serious question, because he was attempting to collect those taxes by seizure and sale of the property in dispute when he was met by the complainant’s injunction issued out of the Circuit Court.

Possessing a duly recorded title thereto, the company was certainly entitled to thus restrain his further proceeding, charging, as it believed, and as that court subsequently decided, that the taxes of the years which have been particularly mentioned were in fact prescribed.

But it is insisted that the complainant’s title was, to a certain extent, involved, and quoad hoc the State could not be represented by the tax collector. This is not correct. The complainant’s title was not involved, except incidentally; and in Smith vs. City, 43 An. 727, this court entertained and decided a question of title, contradictorily with the tax collector alone.

It is further insisted that the judgment of the Circuit Court was not binding on the plaintiffs, because they were not cited.

They were not necessary parties because the action did not involve their title; and,further, because, at the time of the institution of the suit in 1888, their title had been completely divested by the adjudication to Negrotto first, and to the complainant afterward; and the title evidenced by the auditor’s certificate of redemption was not acquired until 1896 — just eight years afterward.

On the whole, it is evident that the Circuit Court had jurisdiction in personam and that necessarily attracted to it jurisdiction ratione materise of the question under consideration, the property being only incidentally affected, and the defendants being within its jurisdiction territorially.

The complainants in the Circuit Court and the “Heirs of Billgery in this court represent the same cause of action — the taxes of 1880, 1881, 1882, 1883, which were assessed against the property in dispute, the contention of the former having been that same were prescribed at the date of the adjudication under Act 82 of 1884, and, consequently, formed no part of the purchase price which Negrotto agreed to pay; and the contention of the plaintiffs is that those taxes were not prescribed and were never paid by Negrotto, but have been paid by them and serve as the foundation of their present title by redemption.

Is not the thing demanded in each case, identically the same? The claim set up in the former suit by the tax collector is the same that plaintiffs set up in this; the demand of the complainant in the former suit is the same that the defendant is asserting in this.

The demand asserted in each suit is “founded upon the same cause of action.”

The demand is “between the same parties and formed by them against each other in the same quality.” R. O. C. 2286.

And that article of the Oode declares that, when these conditions coexist, * “the authority of the thing adjudged takes place with'respect to what was the object of the judgment.”

And the following article declares that in such case a “ legal presumption dispenses with all other proof in favor of him for whom it exists.” R. O. O. 2287.

That the demand is formed between the same parties is fully evidenced by the fact that the property in controversy was adjudicated to the State in November, 1898, for the alleged delinquent taxes of 1883— which are among those which the Circuit Court decreed to have been prescribed — and in January, 1896, plaintiffs volunteered to pay same to the State Treasurer, and thereafter procured the auditor’s certificate of redemption therefor — less than two months having intervened.

This suit is intended and expected to accomplish through- the instrumentality of that redemption the revocation of the defendant’s title, on the sole ground that the decree of the Circuit Court is not binding and effectual with respect to them or their title of redemption; for upon the maintenance of that contention alone, confessedly depends the applicability of the principles announced in Remick vs. Lang.

It is quite evident from the foregoing statement that as the State never had any title to the property in suit until November, 1895, —near ten years after same had been adjudicated to Negrotto— and only held title for little more than one month when the plaintiffs obtained a certificate of redemption, that the title of the.State is but an inconsequential factor in this controversy; therefore,-we have neither quoted from nor analyzed the following authorities which are referred to in plaintiffs’ brief. Carr vs. United States, 98 U. S. 433; United States vs. Lee, 106 U. S. 222; The Siren, 7 Wallace, 152; The Davis, 10 Wallace, 15.

As in this case it appears that there was no decision of this court defining what legal effect and interpretation was to be given to such an assumption as that which the provisions of Act 82 of 1884 required of a purchaser thereunder, at the date of the decree of the Circuit Court, it is quite clear that that court rightly decided it with the lights it had on the subject. It was bound necessarily to act upon its own judgment and adopt its own interpretation of the law applicable to the case; notwithstanding this court might subsequently take a different view of the question.

But the judgment of the Circuit Court is binding upon the parties before it in that suit and their vendees and assigns; and it ihust be respected and upheld as the law of that case, and of the- subject matter of that litigation.

In Burgess vs. Seligman, 107 U. S. 20, the Supreme Court of the United States laid down briefly the rules defining the extent to which the Federal courts are bound by the State decisions, as follows:

“ The Federal courts have an independent jurisdiction in the administration of State laws, co-ordinate with, and not subordinate to, that of the State courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the State courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of State constitutions and statutes. Such established rules are always regarded by the Federal courts, no less than by the State courts themselves, as authoritative decisions of what the law is. But where the law has not been thus settled it is the right and duty of the Federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the State tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the State courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean toward an agreement of views with the State courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunal, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well considered decisions of the State courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals, which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in oases not foreclosed by previous adjudication.” The American Law Register and Review, 186.

. Accepting that statement as the settled jurisprudence of the Supreme Oourt on the question, as did the judge of the lower court, we concur in his finding.

Judgment affirmed.


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    No. 12,045.
    J. M. Hoyle et al. vs. Southern Athletic Club.
    Heirs of Billgery vs. Land Trust of Indianapolis, Ante., p. 890, affirmed.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J,

      Frank L. Richardson and Kernan & Wall for Plaintiffs, Appellants.

      J. Zach. Spearing and J, J. McLaughlin for Defendant, Appellee.
    Argued and submitted March 26, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused May 18, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs, as the heirs of John M. Hoyle, deceased, alleging the ancient title of the deceased and their title by inheritance of the properties described in their petition, aver that the defendant claims to be the owner thereof by devolution of title and mesne conveyances, from the Western Land and Emigration Company, which corporation claims to have acquired same on the 15th of December, 1888, at tax sale and adjudication under and in pursuance of Act 82 of 1884.

They further aver that said adjudication is and was null and void upon the following grounds, viz.:

1. For want of notice to them; and that in so far as said act authorized the sale of their property without notice, same is unconstitutional, null and void.

2. That the tax collector was without authority to make the deed of sale to the adjudicatee until the taxes subsequent to the year 1880 had been paid in accordance with its assumption, same being a part of the purchase price.

The prayer of the petition is that they be decreed the owners of said property; and that the titles of the defendant be annulled and canceled and erased from the conveyance records.

The issues presented are the same substantially as those raised in the ease of Heirs of Billgery vs. Land Trust of Indianapolis, and the defendant presents the same issues as the grounds of its defence as those set up in that case.

The question of the unconstitutionality of Act 82 of 1884 was raised in the matter of Orloff Lake, 40 An. 142, and overruled; and that decision has since been continuously maintained. Henderson vs. Ellerman, 47 An. 306; Augusti vs. Lawless, 45 An. 1370; Martin vs. Langenstein, 43 An. 791, and other cases.

On the trial there was judgment in favor of the defendant, and plaintiffs appealed.

It is therefore ordered and decreed that for the reasons assigned in our petition in Heirs of Billgery vs. Land Trust of Indianapolis, the judgment appealed from in this case is affirmed.


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    No. 12,138.
    State of Louisiana vs. M. M. Magee.
    Motions for new trials are universally conceded to rest within the exercise oí the sound judicial discretion of trial judges; and same will not be disturbed by an appellate court except in clear cases of abuse or misdiscretion.
    APPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Reid, J.

      M. J. Cunningham, Attorney General, Bolivar Edwards, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      J. A. Reid, P. B. Carter and Geo. E. Williams for Defendant, Appellant.
    Argued and submitted April 25, 1896.
    Opinion handed down May 4, 1896.
    Rehearing refused May 18, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant appeals from a verdict convicting him of petty larceny, and sentence to imprisonment at hard labor in the penitentiary for one year; relying solely upon che refusal of the trial judge to grant him a new trial.

The grounds of the motion are of the following tenor, viz.:

1. That the verdict of the jury is contrary to the law and evidence.

2. That during the progress of the tiial, the jury being under instructions from the court not to read any public or private communications, or documents, either written or printed, the foreman received from the hands of a deputy sheriff a sealed letter, which he opened and read in violation and disregard of such instructions, to his injury and prejudice.

3. That the judge erred in permitting testimony to be adduced as to the ownership of a hog belonging to Dr. C. W. Yarnado, after Dr. Varnado and another witness had testified on the part of the State, that the hog he (defendant) is alleged to have stolen was property jointly and equally owned between them in partnership. .

4. That the jury commissioners who drew the venire from which the panel which tried his case was drawn were not summoned in the form and manner required by law; and that some of them, by reason of said irregularity and their failure to receive due notification, were not present at the drawing of said jury at all.

5. That the grand jury who found and returned the bill of indictment against him was likewise thus irregularly drawn.

6. That J. N. Yarnado, one of the jury commissioners who was present and participated in the drawing of the said venire, was a nephew of Dr. G. W. Yarnado, the prosecuting witness against him (defendant), and took great interest in the prosecution against him.

7. That the jury separated during the trial.

8. That one of the jurors who tried the case' was related to the accused by affinity within the degree prohibited by law, notwithstanding he answered in the negative interrogatories propounded to him by counsel in the course of his examination upon his voir dire; and that the truth of the matter was not made known to him (defendant) until since the trial was closed, and verdict had been rendered.

9. That one of the jurors who was empaneled and participated in his trial and conviction was himself under indictment at the time, and therefore incompetent to serve as a member of the aforesaid jury.

For the foregoing reasons defendant alleges himself entitled to a new trial of said cause. On the trial of the motion a number of witnesses were sworn, and their testimony was reduced to writing and it appears in the record; and in the course of said trial the defendant’s counsel retained seven bills of exception.

I..

With regard to the first one nothing need be said, as we have frequently held that this is not good ground for a new trial.

II.

With regard to this objection it is sufficient to say, that the testimony discloses that the letter referred to was wholly unimportant and had no reference to the case under consideration; and as the defendant was accused of a minor offence, this was a trifling and unimportant irregularity not prejudicially affecting his interest.

III.

In so far as the alleged error with regard to the judge having allowed certain objectionable testimony to go the jury is concerned, it. is sufficient answer to say that defendant’s counsel should have interposed timely objection at the trial of the merits, it is too late to raise the objection, for the first time, upon a motion for a new trial.

IV,V and VI.

We can not perceive that the venire was in any way prejudically affected by the fact that some of -the jury commissioners were not served with written summonses; and that one of them was not present and took no part in the proceedings. There were four out of five commissioners present and they participated in the selection of the venire; and it is presumably regular and was legally constituted.

The testimony fully satisfies' as that the jury commissioner, Varnado — of whose action the defendant complains — did not say anything to unduly or improperly influence his associates in placing upon the venire persons who were inimical to the interest of the defendant. This jury commissioner and his nephew, who was on the petit jury who convicted the accused, were both interrogated as witnesses on the trial of the defendant’s motion for a new trial, and their testimony completely exonerates them from any improper action or influence against the accused.

In our opinion this case does not present the same issue as that raised and decided in State vs. Duncan, 47 An. 1025.

VII.

It is of no consequence that the jury should, in a case of this sort, have been permitted to separate under the instructions of the judge.

VIII.

The contention of the defendant, that one of the jurors who assisted in the trial and participated in his conviction was disqualified by reason of the fact that he was at the time under indictment before the same court for the commission of two different offences, ought to have been urged at the trial, and comes too late, it being for the first time urged upon a motion for a new trial.

It appears from the testimony adduced upon the trial of the motion that two indictments against the juror in question were on file in the clerk’s office of the parish of Washington, wherein the defendant was being prosecuted, and that this information was easily attainable.

It further appears that one of the defendant’s attorneys in this case was one of the attorneys for the defendant in the two cases mentioned and relied upon.

Upon this state of facts it was the plain duty of the counsel for the accused to have procured and adduced this evidence on the trial of the merits; and to have predicated thereon an objection to the aforesaid juror on the ground of his disqualification.

The objection is out of time.

IX.

The testimony fails to support the defendant’s contention that one of the jurors who tried the case was related to him by affinity within the degree prohibited by statute; on the contrary, it discloses that the juror in question was remotely related to the wife of the accused, but not to the accused him self.

The foregoing are all the grounds that are enumerated in the defendant’s motion, and a careful consideration of them has con-' vinced us that they are without merit.

The seven bills of exception which defendant’s counsel, ex industria, retained to rulings of the trial judge during the progress of the trial of his motion for new trial appear to be technical and of similar tenor; and as they are germane to the several grounds of the motion which we have examined and^ disposed of, they must share the same fate.

Judgment affirmed.


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    No. 12,130.
    State ex rel. Illinois Central Railroad Company vs. The Judges of the Fourth Circuit Court of Appeals.
    A j udgment must be read and signed by the judge in open court, unless there is an agreement oí the parties, or fcbeir counsel, that he may taire the cause under advisement and sign, a judgment in chambers after the term of court has adjourned.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Farrar, Leake & Lemle for Relator.
    Submitted on briefs April 20, 1896.
    Opinion handed down May 4, 1896.
   The opinion of the court was delivered by

Watkins, J.

The representations of the relator are, that one Ellen Johnson instituted suit against it for two thousand dollars damages for alleged injuries received, and that on trial there was judgment rendered in plaintiff’s favor for the full amount claimed, from which relator suspensively appealed to the respondents’ court at its session to be held in the parish of Tangipahoa-on the second Monday of February, 1895.

That at said term said cause was duly argued and submitted to the respondents, and that at the time of the submission it was agreed that the respondents should decide the case at chambers, each party having the right to apply for a rehearing within ten days from the filing of the judgment in the clerk’s office of said parish.

That respondents held said cause under advisement from February, 1895, to the February term of 1896, when they announced their inability to agree; and they thereupon appointed J. M. Wilson, Esq., of Greensburg, to act as judge ad hoc, and soon thereafter adjourned their court sine die.

That it made objection, at once, to the selection and appointment of said judge ad hoc, and gave to the respondents due and timely notice thereof; and further notified them that its consent and agreement to permit said cause to be decided in chambers only applied to them personally, and did not apply to the aforesaid judge ad hoe; and that it could not and would not agree to the court, as at present constituted, hearing and deciding the case in chambers.

That it urgently insisted upon respondents’ assigning the case for reargument in open court, at its next regular session in the parish of Tangipahoa, on the second Monday of July, 1896, when it desired to tender to the court a plea of recusation of the aforesaid judge ad hoe; and that it was subsequently informed by one of the respondents that, after having had a conference with his associate, it had been determined to refuse its request, but that they would convene their court in Amite City on the first Monday of April, 1896, to pass upon such motion for the recusation of the judge ad hoc as it should desire to tender.

That it was further informed that respondents could, in the event its motion was disallowed, at once proceed, with the assistance of said judge ad hoc to decide the case, after hearing argument; and, in the event its motion should be sustained, to appoint some other attorney at law, and proceed, with his assistance, to decide the case, after hearing argument.

Thereupon relator avers that respondents have no right, or power to hold a regular or special term of the Court of Appeals on the first Monday of April, 1896, and that their action is at variance with the provisions of the Constitution, which fixes the terms of said court in the parish of Tangipahoa on the second Mondays in February and July of each year. Const., Arts. 98 and 99.

That all final judgments must be .rendered in open court (O. P. 543), and it necessarily follows that their judgment must be rendered in term time, as indicated in the Constitution, unless there is an agreement to the contrary.

Wherefore the prayer of the relator is for the issuance and maintenance of the writs of certiorari and prohibition.

One of the respondents returns that the averments of the relator are substantially correct, and submits the matter to the court; and the other respondent made like return, with this exception, that the agreement of counsel that the cause be decided at chambers comprehended, in the opinion and practice of their court, “ all proceedings necessary to be had in said cause (up) to final judgment.”

On this statement of the case two propositions are evident: (1) that the respondents are without power to convene their court for the transaction of business at any other places or times than those which are particularly designated in the Oonsitution; (2) that causes at issue in their court can not be taken under advisement by them and decided in chambers without a specific agreement of parties, or their counsel, of record, to that effect.

The Oonstitution designates the times and places at which respondents must hold sessions of their court; and it has been frequently decided by this court that the signing of final judgments by a judge is a judicial act which can only be performed in term time; and that his signature affixed to a final judgment out of term time will have no legal effect. Culver vs. Leovy, 21 An. 306; Hernandez vs. James,23 An. 483; State ex rel. Dixon vs. Judge, 26 An. 119; Succession of Bougére, 29 An. 378; Laurent vs. Beelman, 30 An. 363.

The Code of Practice declares, in terms, that all judgments must be read and signed by the judge, in open court.” Art. 543.

But it has been decided that it is competent for the parties to a suit, or their counsel of record, to make an agreement that the judge who tries the case shall take it under advisement and render a judgment, and sign it after the court shall have adjqurned.”

Morrison vs. Citizens Bank, 27 An. 401; Green vs. Reagan, 32 An 974; City vs. Gauthreaux, 32 An. 1126; Rust vs. Faust, 15 An. 477.

This record furnishes no proof of an agreement to permit the respondents to take relator’s case under advisement, and render and sign a final judgment in chambers, except what we have quoted from the petition and return.

It may well be — and that is relator’s contention — that when the agreement was made, it was not within the contemplation of the parties that a disagreement between respondents would necessitate the selection of a judge ad hoc.

We are of opinion that relator has stated a ease entitling it to relief.

It is therefore ordered and decreed that the provisional writ of prohibition be made peremptory at the cost of respondents.


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    No. 12,096.
    George Harris vs. Geo. P. Minvielle.
    No man may disparage the reputation of another. Every man has a right to have his goo,d name maintained unimpaired. His right is a jus in rem; a right that is absolute and good against the world.
    Words which produce any perceptible injury to the reputation oí another, are defamatory, and, if false, are actionable.
    Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action in damages for slander and defamation of character. “ Tale-bearers are as bad as tale-makers.’’ And it is no defence that the speaker did not originate the scandal, but repeated what he had heard from another, even as a rumor, and he, in good faith, believed it to be true. Nor is it any defence that such person gave the name of the author.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Foster & Broussard and Thorpe & Thorpe for Plaintiff, Appellant.

      Walter J. Burke and A. & G. Fontelieu for Defendant, Appellee.
    Argued and submitted April 22, 1896.
    Opinion handed down May 4, 1896.
   . The opinion of the court was delivered by

Watkins, J.

This is a suit for the recovery of ten thousand dollars damages for slander and defamation of character, and from the verdict of a jury in favor of the defendant and a judgment thereon based, the plaintiff has appealed.

The following are, substantially, the grounds of plaintiff’s action, to-wit:

That he is and has been a public merchant engaged in business in the town of Jeanerette, in the parish of Iberia, and upon the income of his business he is, exclusively, dependent for the maintenance of himself and family.

That his character has always been of the best, his social standing: good and irreproachable, and his rating as a merchant solvent, undoubted and honorable; and that his success in business was and is dependent upon his standing and character in the community in which he lives.

That he has been for very many years a member of the Masonic fraternity in good standing.

That the defendant did, upon the public streets of said town of Jeanerette, during the month of February, 1895, “unlawfully, wantonly, maliciously and without probable cause, defame and publicly slander your petitioner by openly declaring to Fred. Ansley, in the presence of John T. White and Leo Frank, that your petitioner was a ‘ c — k s — r,’ and that he could prove it.”

That on or about the 5th of February, 1895, the defendant did, on the streets of said town of Jeanerette, publicly proclaim said slanderous and defamatory statement, in the presence and hearing of J. W. Redmond, George W. Whitworth and many others — accompanying such “untruthful slander with abusive and violent language, cursing and maligning him without cause.”

That the slanders thus publicly proclaimed by the defendant as above set forth, “have caused his friends, the members of the Masonic fraternity, the community in which he lives, and the general public to doubt his virtue, his manhood, and his honor; to ostracize his motherless children, to view him as a Pariah — a thing of disgusting infamy — thereby causing him heavy, permanent and irredeemable pecuniary loss, damaging his business reputation, and causing him deep mortification, annoyance and mental anguish.”

Petitioner shows that the iniquity of the charges herein has become so publicly notorious that the State (of Louisiana), in the furtherance of justice and good morals, has criminally indicted (the defendant) for maliciously slandering him;” and in proof of this averment he annexes the bill of indictment to his petition.

He claims of the defendant the sum of two thousand five hundred dollars for the actual loss and damage he has suffered by direct injury to his commercial business through the instrumentality of the slander thus circulated; and the further sum of seven thousand five hundred dollars by reason of the mortification, annoyance, public contempt and odium'it has occasioned him, as well as the social ostracism it has occasioned his family.

For answer the defendant avers that he is not the author of the reports which are charged in plaintiff’s petition as coming from him; but that these were current reports in the town of Jeanerette; and that whatever he did say relative thereto was said to a committee of the Masonic fraternity who were investigating the aforesaid charges, at the instance and solicitation of the plaintiff, who is a member of said organization, submitting to its rules and regulations.

He avers that the aforesaid communications were and are of a privileged nature; and whatever other remarks he may have made upon the subject at issue were made in answer to questions propounded by the plaintiff to him.

On these issues the parties went to trial, and the following is a fair 'summary of the evidence which is disclosed by the record, viz.:

John Redmond, the leading and principal witness for the plaintiff states, that the defendant told him, in February, 1895, that the plaintiff was a e-k-s-r, and gave him the names of the parties who furnished him that information. This conversation took place on one of the principal streets of Jeanerette, near Ur. McGowan’s drug store.

That defendant came to him (witness) and made this statement confidentially, and requested him to say nothing about it. That he said he knew nothing, positively, but had heard it from certain persons whose names he gave — that of Abner Smith being the only one whose name he could recall; though he said they were all negroes.

This witness said that he had lived in Jeanerette for some time, but had never heard of this charge against plaintiff prior to that interview.

Another witness states that he has resided in Jeanerette for eighteen years, and has known the plaintiff for fifteen years, but had never heard of the charge against him until February, 1895. That he had not heard the defendant make the statement, but had heard that he had made it in a public manner. That Mr. Redmond was the first person from whom he had heard anything of the affair; but that soon afterward “every one was talking about it;” that it “ took immediate circulation.”

Being requested to mention the names of some of the persons he had heard speaking of it, he said there were so many of them that he could not recall even a few of them, but he gave the name of Leo Frank.

He states that, up to the time of this disclosure, plaintiff’s reputation had been good, and that he had been several times elected a member of the Oity Council of Jeanerette, and that he had stood well with the people of the parish in local politics. That he had always appeared to be a fairly successful man in business enterprises. That his credit and social . standing had been good, but “ since the circulation of these rumors plaintiff and his family had been almost wholly ostracized.”

Leo Frank — the witness named above — says he has resided in Jeanerette for the past eight years, and has known both the parties to this suit during that time. That the defendant had said to him that he had heard the aforesaid charges against the plaintiff. He said that plaintiff’s social standing and character were good up to the time, this report was put in circulation in February, 1895. That same had considerable effect upon him “ for the worse.”

He said that he had first heard the report from Mr. Redmond, but that soon after, so many persons were talking about it that he could not remember their names. That the defendant told him that from all the reports he had heard, and from all the rumors, he believed the charge to be true, and made this declaration publicly. He further states that when this rumor was put in circulation, an informal committee of Masons began to investigate the matter, and that it was subsequently that the defendant spoke to him about it, but that he obtained his information from Mr. Redmon l prior to the organization of this informal committee.

Another witness says he heard the defendant affirm his belief in these charges against the plaintiff upon information he had received. That he heard him make this statement in several different places and in the presence of several different persons.

Another witness states that the day after the meeting of the informal committee a colloquy occurred between the plaintiff and the defendant in reference to the charges which had been put in circulation. That the plain iff “in a tone of wrath began to denounce the defendant, accusing him of starting these reports upon him and demanding retraction. The defendant said he did not originate these reports, but that he believed every word of them, and that the plaintiff ought to be drummed out of the community and despised by every decent man.”

In other respects the statement of this witness is similar in import to that of other witnesses, and they all agree that subsequently a formal committee of investigation was appointed by the Masonic Lodge of the town of Jeanerette, upon its own motion, and not at the suggestion or request of plaintiff, notwithstanding he was a member of that organization.

They concur in the statement that Abner Smith and the other negroes who were mentioned by the defendant as the persons from whom he had derived the information, on the faith of which he had made the confidential communication to Mr. Redmond, had been produced before that committee and had made a statement to them..

At the conclusion of the plaintiff’s testimony by other witnesses,, the plaintiff was, himself, placed upon the witness stand; and in the course of his evidence he emphatically and circumstantially denied the aforesaid charges, and affirmed his entire innocence of them. He says that the circulation of the rumor commenced with Mr. Red - mond. That he never heard of it before, or as coming from any other source.

In other respects, this witness corroborates the averments of his petition, and supports his allegations of injury and damage at the hands of the defendant. In this his testimony is supported by that of his other witnesses.

But, as a matter of fact, is it true, that the alleged slanderous and defamatory statements of the defendant were made to the committee of the Masonic fraternity, as he avers in his answer.

Circumstantially, this statement is contradicted by several witnesses ; and from the testimony of another leading witness we quote the following, viz.:

“Q. Did you, as a member of the informal committee, or as a member of the regular committee, have the defendant before you?
“A. No, sir.
“Q,. Did he ever appear as a witness, or in any other capacity, before either committee?
“A. He did not.
“Q. Was he in the neighborhood, or was he close enough to the deliberations of the committee, that you could have heard, as a member of that committee, what he said, if anything he did say?
“A. No, sir.”

The foregoing statement, and the result of the committee’s investigation, completely sets that pretension at rest, and the sequel is illustrated by a criminal indictment which was found against the defendant on that account.

The trend of the defendant’s evidence is to show that a similar rumor to the one recently circulated was extant several years ago; but [same was traced directly to the man Abner Smith and two or three other negroes, of whom nothing was affirmed by defendant’s witnesses except their hearsay declarations. Neither of these parties were.produced by the defendant as his witnesses.

One of the defendant’s witnesses — a justice of the peace in the town of Jeanerette — testified that the plaintiff caused Abner Smith to be arrested for criminal libel, and brought before his court for trial; and that he, in the presence and hearing of defendant and a number of persons, went down on his knees and swore to the truth of the charges he had made against the plaintiff — giving the most shocking details.

But strange to say only one of those people could be, or was produced as a witness to affirm the truthfulness of the statement. Yet, on the contrary, Abner Simth was placed on the stand by the plaintiff in rebuttal, and he circumstantially denied the truth of the testimony of the justice of the peace. And one of the defendant’s witnesses who affirmed its truth and made the statement that the plaintiff was present in the justice court and heard the declaration of Abner Smith was flatly contradicted by the plaintiff, who took the stand in rebuttal and said the witness’ statement was “false from beginning to end; ” and that the testimony of both of those witnesses at the criminal trial was entirely different.

But it is a striking and noteworthy fact that the defendant did not take the stand as a witness in his own behalf, and contradict or explain the damaging charges which were brought against him by the witnesses of plaintiff.

The law of slander and defamation of character is plain, unambiguous and of easy application to the evidence adduced.

Odgers, in his treatise on the law of libel and slander, says:

“No man may disparage the reputation of another. Every man has a right to have his good name maintained unimpaired. This right is jus in rem; a right that is absolute and good against the world.
“Words which produce any perceptible injury to the reputation of another are called defamatory; (and) defamatory words, if false, are actionable.
“Words which on the face of them must be injurious to the reputation of the person to whom they refer are clearly defamatory and, if false, are actionable, without proof that any particular damage has followed from their use” (pp. 1 and 18).

The principle adopted by the English courts, and which is announced by Odgers as having received the sanction of American courts as well, is words are actionable as slanderous, “whenever they sound to the disreputation of the person of whom they were spoken.” Button vs. Hayward, 8 Mod. 24.

That the charge preferred against the plaintiff comes clearly within that principle will not be denied — could not be, under the defendant’s answer — in view of the fact that, under our law and jurisprudence, the courts of this State are not bound by the technical distinctions of the common law, as to words actionable per se and not actionable per se,” etc.

Spotorno vs. Fourichon,40 An. 423; Miller vs. Holstein, 16 La. 389; Daly vs. Van Benthuysen, 3 An. 69; Tresca vs. Maddox, 11 An. 206.

But the defendant seeks to justify himself on the ground that the disclosures he made were privileged because they were made to a public investigating committee and in the interest of the public. The proof shows, however, that this position is untenable in point of fact; and the most that can be said in this behalf is, that some of defendant’s reiterations of the rumor which was so quickly spread abroad were made contemporaneously with the investigation.

Mr. Odgers says:

“It is a defence to an action of libel or slander to prove that the circumstances under which the defamatory words were written or spoken afforded an excuse for their employment. And this is so, even though the words be proved or admitted to be false. Circumstances will afford an excuse for writing or speaking defamatory words whenever the occasion is such as to cast upon the defendant a duty, whether legal or moral, of stating what he honestly believes to be the plaintiff’s character, and of speaking his mind fully and freely concerning him. In such case the occasion is said to be privileged, and the employment of the defamatory words on such priv.ileged occasion is, in the interest of the public, excused” (p. 182).

But that author, in amplifying the doctrine, in treating of the exercise of the qualified privilege, says :

“In less important matters, however, when the interests of the public do not demand that the speaker should be freed from all responsibility, but merely require that he should be protected, so far as he is speaking honestly for the common good; in these the privilege is said not to be absolute but qualified only; and the plaintiff will recover damages in spite of the privilege” if he can prove that the words were not used bona fide, but that the defendant availed himself •of the privileged occasion wilfully and knowingly to defame the plaintiff.” Id., p. 183.

In the first place, the evidence does not bring the defendant within the operation of the privilege; but even if that were doubtful, we are of the opinion that the testimony fairly discloses that the defendant sought to shelter himself under the plea of privilege subsequent to his having both confidentially and publicly put the charge against the plaintiff in circulation.

This is, in the sense of the law, a slander, a defamation of character that is actionable.

But the defendant makes an attempt at justification, on the ground that the charges plaintiff complains of were of longstanding; that he only repeated a rumor, that had been previously circulated by others,

Odgers says:

“Evidence of the truth of the slander or libel is, therefore, inadmissible, unless a justification is pleaded. Evidence of a rumor that the plaintiff had, in fact, committed the offence charged against him, clearly falls short of justification, and is, moreover, objectionable as hearsay.” Id., p. 304.

And another author, in treating of the repetition of slanders originated by others, says:

“Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action. ‘Tale-bearers are as bad as tale-makers.’ And it is no defence that the speaker did not originate the scandal, but heard of it from another, even though it was a current rumor, and he, in good faith, believed it to be true. Nor is it any defence that the speaker-at the time named the person from whom he had heard the scandal.” Newell on Defamation, Slander and Libel, p. 350.

That author says that it is no answer for a defendant to say: “There was such a story in circulation; I but repeated what I heartl- and had no design to circulate or confirm it.” Id., p. 351.

The text of that treatise is in keeping with the decisions of the highest courts in several of the States.

Por instance, it was said in Kinney vs. McLaughlin, in 71 Massachusetts 3, viz.:

“ The story uttered or repeated by the defendant contained a charge against the plaintiff of a nature to destroy her reputation. It is no answer, in any form, to say that she only repeated the story as she heard it. If it was false and slanderous she must repeat it at-her own peril. There is safety in no other rule. Often the origin of slander can not be traced. If it were, possibly it might be harmless. He who gives it circulation gives it power of mischief. Ic is-the successive repetitions that do the work. A falsehood often repeated gets to be believed.”

See also to the same effect the following cases, viz.: Frank vs. Browly, 112 Ind. 190; Wheeler vs. Shields, 2 Scappe (Ill.) 348; Dale vs. Lyon, 10 Johns (N. Y.) 447; Hastings vs. Stetson, 126 Mass. 329.

We have given this ease special attention and examined it with care, and have reached the conclusion that plaintiff has clearly established the charges his petition prefers against the defendant, and that he is entitled to be compensated in damages.

In such a case as this, the charges made by the defendant are so far-reaching in their consequences and effect that it is a task of great difficulty for a court of justice to place an estimate upon the-damage plaintiff has suffered in consequence of them; but, in our-opinion, the sum of one thousand dollars will be sufficient to punish the defendant, and deter him from publishing libellous statements in the future, though it fall far short of repairing the injury he has done the plaintiff.

It is therefore ordered and decreed that the verdict of the jury and' the judgment of the court thereon based be annulled and reversed; and it is further ordered and decreed that the plaintiff do have and recover of and from the defendant the sum of one thousand dollars, and that he be taxed with the costs of both courts.


author: McEnery, J.

text:
    No. 12,125.
    L. J. Trosclair vs. Mrs. Felix Lasseigne.
    'There is only a question o£ fact at issue in this case, whether or not the property could he divided in kind.
    APPEAL from the Eighteenth Judicial District Court for the ParisV of Lafourche. Caillouet, J.

      ■Clay Knobloeh & Son for Plaintiff, Appellee.

      .Beattie & Beattie for Defendant, Appellant,
    Submitted on briefs April 24, 1896.
    Opinion handed down May 4, 1896.
   The opinion of the court was delivered by

McEnery, J.

The judgment appealed from decreed a partition by Imitation, and the seed cane was recognized as plaintiff’s property, with the right reserved to him to have it sold separately from the property and to appropriate the proceeds, or to take possession of the cane, at his option. The claim for compensation of the stubble was rejected.

The record shows that it is impracticable for a division in kind to be made. A division of this kind wonld give all the buildings to plaintiff, as they are located on the lower side oi the main tract. The canal is a necessary adjunct or appendage to the property. It can not be divided, and its exclusive ownership by one of the parties would greatly decrease the value of the property.

The District Judge, who is acquainted with the location, and was in a position to give full weight to the testimony, says: “ It is impossible to make a division in kind of the whole property.”

The defendant offered to waive her claim to the buildings on the main tract. This same proposition was made by defendants in the case of Soniat vs. Supple, 48 An. 296, and in that case we decided that such a proposition was in the nature of a convention to be made by the parties to the suit, and could not be entertained by the court to influence the judgment to be rendered.

The stubble gave no permanent improvement to the place, and the evidence, as the trial judge states, did not clearly establish that the stubble gave any increased value to the property. The seed cane is the plaintiff’s separate property. It had been cultivated and raised by him, and can be disposed of by him at his pleasure.

Judgment affirmed.