text:
    No. 13,120.
    Interdiction of Marie G. Haaf.
    SAU.LABUS.
    1. Acceptance of a portion of the property inherited. An heir, anxious to equalize her portion of the inheritance, in accepting the succession, accepted only to the extent that she knew the <le cujus intended her to accept.
    2. Renunciation of a portion. She renounced the remainder of the succession in favor of her co-heir in conformity with the intention of the de cujus.

    Held : That the renunciation was not a donation. It had not the form and essentials to make it a donation.
    3. Good faith. In renouncing, the heir complied, in good faith, with the wishes of the one from whom she inherited.
    4. Rot a donation. It is quite exceptional, on the part of an heir, to renounce an advantage in order to equalize shares, and the effect of the renunciation is not to he construed as an act of donation different from that intended by the one renouncing.
    5. Expenditures not unauthorizedly made. The properties were sold in accordance with an order of court and it does not appear that they were sold, as charged by the defendants, to pay a judgment against the interdict for expenditures m excess of her revenues.
    6. Amount of indebtedness justified sale. The claims against the interdict were' sufficient in amount to justify the sale.
    7. The orders of the court justified the sale. The title offered to the adjudi-catee was good and valid and not one which can be subjected hereafter to any'claim against the vendor by her heirs for having donated property in excess of the disposable quantum.

    APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      Bernard McCloshey and Percy 8. Benedict for Curator, Plaintiff in Buie, Appellee.

      Hice & Montgomery and Charles F. Claiborne for Paul Pace, Adju-dicatee, Defendant in Buie, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Judgment was pronounced in the District Court against the defendant in rule, filed to compel him to show cause why he should not accept the title tendered to property adjudicated to him at a public auction. Prom the judgment the defendant appeals, and urges on appeal that the title -vf the interdict to the property thus adjudicated to him is derived from a donation; that the properties were sold to pay a judgment against the interdict for expenditures in excess of her revenues, and that the claims against her are not sufficient in amount to justify the sale of all the property of the interdict.

The facts are that the late- Charles Haaf, father of the interdict, died leaving a widow and two heirs, viz: The interdict, Marie G. Haaf, and Philippine Mathilde Zimmerman, a grand daughter. In an act of partition of property between the heirs of Charles Haaf and his widow, the latter acquired six lots numbered two to seven. Mrs. Ohalin, nee Philippine Mathilde Zimmerman, acquired lot number one, and Marie Ilaaf lot number eight.

Some time after this partition had been made, Widow Charles Haaf donated lots two, three, and four to her grand-daughter, Mrs. Ohalin. She, the widow, married Francis Schuller, after the death of her husband. She died in 1883. Schuller became the executor of her succession and provoked a partition. To the proceedings Louis F. Ohalin, executor of Marie Haaf, interdicted, was a party.

A family meeting was held on behalf of the interdict in July, 1883. The members set out as part of their deliberations that the widow of Charles Haaf and deceased wife of Francis Schuller, in April, 1872, donated to hen. grand-daughter, Philippine M. Zimmerman, wife of Louis F. Ohalin, three lots of ground (Nos. 2, 3 and 4) situated in the Fourth District of the City of New Orleans, and that Mrs. Schuller had expressed the desire and intention in the presence of her granddaughter, Mrs. Ohalin, of making a similar donation to Marie Haaf, her daughter, interdicted, but that she failed to carry out her intention, and that to equalize the shares of the heirs in the successsion of Mrs. Schuller, Mrs. Ohalin, her grand-daughter, desired to carry out the intention of her grand-mother and to transfer and put the interdicted, Marie Haaf, in possession of the whole of the three lots of ground situated in the Fourth District of New Orleans, in square No. 160.

Upon this, the members of the family meeting advised that the transfer of the three lots of ground by Mrs. Ohalin to the interdict bo accepted. The proceedings were approved by an order of court. Afterwards, by act before Notary Oommagere, Philippine Mathilde Zimmerman, wife of Louis Ohalin, declared that, whereas his grandmother, widow of Charles Haaf, and wife, by the second marriage, of Francis Schuller, had donated to her three lots of ground (Nos. 2, 3 and 4) situated in the Fourth District of the City of New Orleans, and whereas at the time of the donation Mrs. Schuller had expressed the desire and intentions of making a similar donation to her cousin, Marie G. Iiaaf, but failed to carry out her intention, the appearer in the act, Mrs. Ohalin, declared that in order to.equalize the shares of the heirs at law in the succession of Mrs. Schuller, and also in order to conform herself to the recommendations of the family meeting before referred to, she transferred and assigned to Marie G. Iiaaf, the interdict, represented by her under-curator, accepting for her and acknowledging possession, the lots of ground designated by the numbers 5, 6 and 7.

The defendants in rule contend that this was a donation; that Mrs. Louis F. Ohalin has children; that the donation may be reduced; and the title is, therefore, precarious and not such as the purchaser may be condemned to take. In other words, that it might be subject to the objections found in the case of Tessier vs. Roussel, 41st Ann., 474, to complete the validity of such an act as the act of sale proposed by plaintiff in rule.

The effect of the acceptance by Mrs. Louis F. Ohalin, defendants urge, is not and could not be limited to a part of the succession; that a succession can not be accepted in part and renounced in part for the reason that an heir is bound to accept or renounce for the whole, citing Article 1024 of the Civil Code. The law upon this score leaves very little to interpretation. It is manifest that the heir can not divide his acceptance and accept only a part, yet we think that he may renounce a part of the succession to one of his co-heirs, particularly as in this case, in order to equalize the share of each. lie is bound as having- accepted .the whole succession, but it does not follow that, as between him and his co-heirs, he may not renounce, and this without making an act of donation.

It is in evidence before us that the grandmother desired and in-1 ended to make a donation to Marie G. Haaf, her grand-daughter, interdicted.

Moved by this 'desire of the grandmother, the grand-daughter, Mrs. Ohalin, while accepting the succession, renounced her right to the property she knew that her grandmother intended Marie G. Iiaaf should have. There was, as we take it, a natural obligation to comply with the expressed wish of the grandmother. It is true that the inten-tiou was not put down in writing, none the less, if the grand-daughter was positive that it was the wish of her grandparent to equalize the inheritance she left, there existed an obligation on her part to carry out the desire, and that obligation should not be termed less than natural.

“There is, also, a natural obligation on the part of those who inherit an estate,- either under a will, or by legal inheritance, to execute the donations or other dispositions which the former owner had made.”

Although the intention is conveyed in a form absolutely defective, there is a natural obligation which may become binding by executing the donation. Where an heir knows and is thoroughly convinced of the intention and expressed desire of the one from whom he inherits, the obligation in foro conscieniiae is as binding as if it had not been written in a form, entirely defective and of no possible effect as a legal obligation in its original form.

Our learned brother of the District Court rested his conclusion on another ground, as we shall see by the following:

“In 1884, when of full age and married, Mrs. Chalin renounced the advantage of said donation and, being duly authorized by her husband, transferred said lots to the interdict to equalize the heirship and carry out her grandmother’s' wish. Said act of transfer of 1884, therefore, seems to me, not an act of donation, but a mere renunciation of interest made in settlement of the grandmother’s estate.

“How far the natural obligation to respect her grandmother’s wishes may enter as a factor, may give food for reflection, but I do not follow up the suggestion. I place my decision on the ground that the act on its face, in its form, and for its express purpose, is not an act of donation, and on the further ground that an heir may renounce or collate an advantage, to the end, that an equitable partition may be effected, or may even renounce it in toioS’

We have copied the foregoing from the opinion for the reason that it presents conclusive grounds, we think, to sustain his judgment. .

The right to renounce a portion of a succession in order to bring about an equitable division among co-heirs is governed by different rules from those relating to the right to make a donation.

Among heirs, the renunciation is subjected to no special form; it may be made and accepted in all sorts of acts authentic or sous seing prive. We do not think that wo should construe the act of renunciation into a donation and thereby bring it within the effect of the law regarding' tile disposable portion. This renunciation is not a gratuitous transfer made without consideration and merely for liberality’s sake.

The second ground urged by appellant to set aside the judgment is that the properties .were sold to pay a judgment against the interdict for expenditures in excess of her revenues and based on speculations with her funds.

The facts upon this point are as follows:

The inventory of the property of the interdict consists of property valued at three hundred dollars.

Louis Chalin was appointed curator of the interdict on July 14th, 1882. On July 16th, 1882, Chalin filed a petition in court for the settlement of the succession of Maria Ursula Schuller and asked that a family meeting should be convened for the purpose of advising regarding the rights of the interdict and on what terms the property should be sold and what investment should be made of the cash. The family meeting- was held and it recommended that it was in the interest of all to sell all the real estate described as forming part of the proces verbal of the proceedings, for the reason that the proceeds of the sale could be invested for her interest and that thereby it would be protected, and they recommended the making of improvements on the three lots transferred to her by Mrs. Chalin, as before stated. T he properties were sold at public auction in accordance with the recommendation made to the court. The curator' received $3,132.-11 for the interdict. He received her share in the movables, $3,301.25. ‘ This makes a total of $6,433.66.

The curator made improvements on the properties; after paying for them and meeting other alleged disbursements for the minor, there remained a balance due by the interdict of two thousand one hundred and fifty-two dollars ($2,152). The curator represented to the court that it was to the interest of the interdict that the amount be secured by mortgage which would in course of time be met by rents and row lines.

The family meeting advised the making of a mortgage as asked for, and it was done. These proceedings were instituted in 1885.

In the course of time an amount was paid on this indebtedness, but there still remained due the sum of two thousand one hundred and fifty-two dollars and interest. This amount was approved by a judgment of the court rendered contradictorily with the under-curator. The curator, Chalin, having withdrawn from his trust, another eirator, Williams, was appointed, and, under the letters of administration, as curator, a family meeting was convened and property of the interdict was sold to pay her indebtedness. The sale took place under the order of court. This is the sale at which the defendant in ruio became the adjudieatee of part of the property sold. The proceedings axe in regular form and were conducted before a court of competent jurisdiction. Family meetings were called and thej advised regarding the sales, and every step taken received the sanction of the court. If there were any irregularities or illegalities committed in the course of these proceedings, they are not evident. In any case they are not such as can affect the interest of a third person, adjudieatee of the property. The different orders and judgments timely rendered are enough to protect the title. Succession of Hawkins, 35th Ann., 591.

Appellant assumes that the parties here are parties to asserted illegal proceedings and that, in consequence, the rule, laid down in repeated decisions when third parties, as adjudicatees of property, are concerned, is without force or effect. But even from that standpoint it would not be possible where fraud or wrong of some sort does not appear, to hold collaterally that all the proceedings are null and void.

The curator, however, is not a party against whom these proceedings are conducted. The adjudieatee has naught to do with his responsibility to the interdict. He, Ohalin, curator, may not be piotected by the different proceedings of the court, hut the adjudieatee, and appellant here, certainly is protected.

The third ground of defence is, that the claims against the interdict aro not sufficient in amount to justify the sale of all the property of the interdict. The total amount of the debts is about $4,600. The whole property sold for $6,100, more by one hundred dollars ($100) than the amount at which it had been appraised. The difference between the price of the sale and the value of the property is not sufficiently great to justify us in setting aside the sale. The family meeting had advised the sale of the. whole property. The result shows that it was not extravagant or unreasonable, and not in the least prejudicial to the interest of the interdict.

We, therefore, conclude that it is to the interest of the interdict to affirm the judgment. ' ■

It, is ordered, adjudged and decreed that the judgment he affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,270.
    State ex rel. R. B. Trowbridge vs. Hon. Isaac Mayer, Judge of the Third Ward Justice Court for the Parish of St. Mary et al.
    Syllabus.
    The district court has Jurisdiction.
    The court of the first instance lias some discretion in determining whether or not the cause of plaintiff in ejectment proceedings, was one based on a lease. The district court lias jurisdiction to correct any error in this respect.
    The writs of certiorari and prohibition are to be issued only in cases of manifest necessity, and after a fruitless application for relief to the court to which the ease is appealable.
    ^PPLIOATION for writs of certiorari and prohibition.

      Charles A. O’Niell and Placide P. Sigur for Relator.
    Respondent Judge pro se.

      Milling & Sanders and John B. Roberts for W. D. Trowbridge, also Respondent.
   The opinion of the court was delivered by

Breaux, J.

Relator complains of a judgment rendered by the respondent, and applies for a writ of prohibition to he directed to the justice of the peace, forbidding him to proceed further, for the reason that the cognizance of the cause does not belong to the Third Ward Justice Court, over which the respondent presides as justice of the peace.

ITe also applies for a writ of certiorari, commanding him to send up to this court a certified copy of the proceedings.

Tie prays that after due proceedings, there be judgment in his favor, as relator, against the justice of the peace, the constable of the court, and the one in whose favor judgment was rendered, maintaining the writ for which he applies, and that the proceedings had in the cause complained of, including the judgment, be decreed null and void.

In bis answer and return to tbe order nisi, issued by this court, the respondent avers that on the twelfth day of September, 1899, Willard D. Trowbridge brought an action against Roswell B. Trowbridge to eject him from his premises, in the town of Franklin, and that the defendant in the proceedings before him interposed the following exceptions:

That the defendant occupied the premises as owner, not as tenant, and that he had a suit pending in the District Court claiming the ownership of the property.

, To sustain the last ground of defence, defendant, in the ejectment suit before the justice court, introduced in evidence the entire record of the proceedings had in the District Court, for the purpose of showing the wending of the proceedings, and to show, further, that the defendant was not occupying as a lessee, nor as a tenant at will, but as an owner.

Oral testimony, also, was offered and admitted in support of the ownership claimed by the defendant, and, as we gather, there was, also, evidence offered on behalf of plaintiff in the ejectment proceedings.

Objections which were overruled were offered to the admission of this testimony. Subsequently, the court decided against the defendant’s position, and overruled the plea urged by the defendant as to -the jurisdiction of the court. In other words, after having heard the evidence, the justice of the peace held that defendant was a tenant, and, thereafter treating the exception as an answer, rendered judgment so as to oust the defendant from his possession as tenant.

After the judgment had been rendered, the defendant applied for a suspensive appeal from the judgment of the justice of the peace, to the District Court, which the justice of the peace declined to grant, holding that the defendant in the proceedings to eject had a right to a devolutive, but not to a suspensive appeal, and referred to the article of the Revised Statutes, which provides that no appeal shall suspend the execution of the judgment rendered in proceedings to oust a tenant, unless the defendant has filed a special defence, supported by his oath, that all the facts contained in his answer, are true, and that they entitle him to retain possession.

In meeting this position relator avers that he did not make afiD davit to any defence made by him in the justice court, because he did not have any opportunity, and did not, and could not, lawfully, make any defence to the merits of the proceedings, because the justice of the peace was not competent to try the case, as he had no jurisdiction.

We will not indicate other issues than those disclosed by the foregoing. That statement is complete enough to serve as ground for our reasons for declining to grant the writs petitioned for by the relator.

The possibility that the defendant, in the lower court, is the owner of the property which the plaintiff declares he, the, defendant, holds as tenant, does not, at this time, furnish reason enough to justify us in granting the writs.

The defendant may be a tenant, and in that case the court would have jurisdiction. If the court has erred in holding that he was a tenant, that error may be corrected on appeal to the District Court, contradictorily with the parties concerned.

But here, on conflicting statements presented ex parte, we can not very well assume to decide that defendant was not a tenant, but the owner of the property.

An appeal is the principal mode of obtaining a review of a judicial decision.' Upon appeal from the court of the justice of the peace to the District Court, the cause is to be heard anew. ' It is decided upon evidence, newly introduced, and in the same manner as if it had not been previously decided. The appeal entirely removes the ■ cause. The facts, as well as the law, are to be reviewed, but the writ of prohibition removes nothing but a point of law.

In this case, the point of law forms part of the merits. It is, as we infer, the only point at issue, and the merits will have been disposed of as relates to the question of “tenant” vel non, when it shall have been determined that defendant, in the ejectment proceedings, was not a tenant.

The appellate jurisdiction of the District Court includes questions as to the jurisdiction of the inferior court,. as well as any other questions which may arise on the merits, and includes all the questions presented in the application before us at this time. The plea to the jurisdiction may be considered at any time during the trial. The court may, even ex proprio motu, dismiss the case, if it should conclude that the court of first instance had no jurisdiction.

In the interest of celerity, if for no other purpose, we think that the issue, such as that presented here, should come up and be considered with the merits, and be disposed of on appeal. If, after having- considered the facts, it should appear that jurisdiction was wanting-, the parties would not, as we take it, be without a remedy.

In view of this, the Supreme Court has decided that “prohibition is not a proper remedy where relief can be reached through appeal or injunction.” State ex rel. Shaw vs. Judge, 47 Ann., 1602; State ex rel. Reid vs. Judge, 45 Ann., 947; State ex rel. Rozier vs. Judge, 50 Ann., 21.

This court finds no reasonable way to the conclusion that a litigant has exhausted all other remedies when he has so many opportunities to be heard before the court of original jurisdiction, and before the District Oourt regarding his plea of want of jurisdiction.

The relator; it must be borne in mind, is not seeking to take advantage of the want of jurisdiction, growing out of any formal defect in the process not connected with the merits, nor of the want of jurisdiction over the person, or ratione maleriae apparent on the face of the record, but an alleged want of jurisdiction growing out of the facts of the case and turning entirely upon whether the facts are as relator contends they are, or as the justice of the peace says they are. In our judgment, the controversy is clearly within the jurisdiction of the District Court, and we have concluded to refer the parties and their differences to it. The want of jurisdiction does not clearly appear from the record.

We must give some consideration to the judgment of the court a qua in determining facts regarding the jurisdiction and the merits. We must decline to annul its judgment without a complete showing of error. Such showing has not, at this stage of the case, been made.

It is, therefore, ordered, adjudged and decreed, that the rule nisi, which was issued, be recalled and cancelled, and that relator’s application for writs of certiorari and prohibition he, and the same is hereby rejected.

Rehearing refused.


author: BLANCHARD, J.

text:
    No. 13,127.
    Ovide Landry vs. The Adeline Sugar Factory Company, Limited.
    Syllabus.
    1. Tlie contract between a cane grower and sugar factory for the sale and delivery of cane at the factory failed to mention upon whom the obligation was to provide the railway cars for tile transportation of the cane, whether the cane grower was to look to the railroad, or whether the arrangement for the cars was to be made by the buyer of the cane: Held, the omission of mention of this left it open for proof and the weight of the testimony being that the buyer undertook to look after the same, he must suffer the consequences of the failure to seasonably provide the ears.
    2. This is strengthened by the fact that it was the custom of the country in contracts of this character that sugar factories buying cane would arrange with the railway company for the cars and thereafter control their movement and destination.
    APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.

      Donelson Oaffery & Bon and J. Bully Martel for Plaintiff, Appellee.

      Philip H. Mentz and Carroll & Carroll for Defendant, Appellant.
   The opinion of the court was delivered by

BLANCHARD, J.

Plaintiff is a cane grower; defendant a manufacturer of sugar from cane. On the 8th of October, 1894, they entered into a contract by which the former undertook to deliver to the latter the product of about seventy acres of cane, say 1050 tons óf 2000 pounds each, of good, sound, unfrozen cane. The delivery was to be made over the Southern Pacific Railway at the factory, which was distant from plaintiff’s cane field some fifteen or eighteen miles. The place from which the shipment was to be made was the Brerard Station, or Switch. The delivery of the cane was to begin not earlier than October 15th and not later than October 30th at the buyer’s option, and it was to be delivered at the rate of about sixteen tons per day. Defendant agreed to pay for the cane at the rate per ton of eighty-five cents for every cent prime yellow clarified sugars might sell for on the New Orleans market, and an additional eighty-five cents per ton for every cent of bounty received on account of the' manufacture of the sugar.

Under this arrangement the freight charges — fifty cents per ton--from the Brerard Switch 'to the factory were to be borne by the shipper.

Defendant Factory began to make sugar that year on October 20th.

A portion of plaintiff’s crop of cane was delivered under the contract, but on and after January 12, 1895, the Factory shut down and refused thereafter to receive further offerings of cane. The-ground of this refusal was that the cane at and around the Brerard Switch had become injured by freezing and was unfit for sugar making.

On or about December 24th, 1894, freezing weather had supervened, in consequence of which much cane had perished.

Whether plaintiff’s cane was so injured by the cold as to make it unfit for use, under the terms of the contract, is an issue herein.

Defendant contends it.was; plaintiff affirms it was not.

The fact remained that the cane grower lost the greater part of his crop of cane. So did other cane growers who, likewise, had contracted to deliver cane' from the Brerard Switch to defendant factory.

Litigation followed. This suit and one by Rene F. Delajioussaye were instituted. They were consolidated and tried together.. From adverse judgments by the trial court, plaintiffs appealed here.

The judgment in the Delahoussaye case was reversed and defendant held liable for the loss of the cane.

This for the reasons assigned in the opinion of the court in 50 La. Ann. 544.

The judgment in the other case (plaintiff’s) was reversed and the case remanded, the court not being entirely satisfied that the evidence as to the situation with regard to the Ovide Landry contract warranted the same conclusion arrived at with respect to the Delahous-saye contract. See 50 La. Ann. 542.

The case was remanded on all the issues, but more particularly that additional testimony might .be adduced on the point of defendant’s obligation to provide, or see to the provision, of sufficient cars to seasonably transport the contract cane from the Brerard Switch to the factory.

Plaintiff’s contention is that defendant company assumed the obligation of providing the cars for the shipment of the cane; that the company dealt with the railroad with regard to the cars; that eighteen cars were stipulated to be furnished for the accommodation of the cane shippers at Brerard; that that number of cars were supplied by the railroad, cribbed by defendant company for the carriage of cane and labeled for exclusive use at the Brerard Switch; that this would have given and was intended to give six cars a .day at the Switch; but that some of these care so intended for Brerard Switch were diverted to other points; and that because of this there was a dearth of cars at the Switch, causing a failure of the means of transporting the cane to the mill and the consequent loss to plaintiff of 900 tons of cane, which he was ready and anxious to deliver, and offered to deliver, and which could have been delivered before the factory closed down had the cars been provided.

He contends further that before the freeze of December 24th came, he had windrowed his cane, and that by this timely action the cane had not been injured by the freeze and was good, sound, unfrozen cane, within the meaning of the contract, at the time the mill closed down and defendant company refused to receive further shipments of cane.

lie charges negligence and fault on part of defendant and sues for the value of 900 tons of cane which he avers to be $3 per ton, or $2700.

The defence is that alone from the contract between the parties is to be deduced the obligation assumed by the company, and that no where is it stipulated cars were to he provided by defendant; that it was to the railroad plaintiff was to look for the necessary cars to transport his cane; that his obligation was to deliver the cane at the factory; that beyond cribbing' the cars defendant had assumed no obligation in respect thereto; that eighteen cars had been cribbed and labeled for use at the Brerard 'Switch; and that thereafter the cars were under the control of the railroad officials and not of defendant, and the latter is not responsible for their non-delivery at the Switch.

It is denied that plaintiff’s cane was not injured by the freeze, and the contention of the defendant is it was frozen and unfit for use at the time the factory closed down.

Judgment on the second trial in the District Court was in favor of plaintiff, who was decreed to recover of defendant $2,108.40.

The latter appeals.

The case turns mainly On a question of fact — the same discussed and sustained, as to the plaintiff’s side of it, in the Delahoussaye case, supra. ■ In view of the discussion there and the reasoning by which the court sustained the conclusion arrived at, it is deemed unnecessary to go over the ground again here.

We find from a preponderance of testimony that on defendant company was the obligation to see to it that sufficient cars (six daily) were provided at the Brerard Switch for the accommodation of its contract cane shippers there, among whom was Landry, the plaintiff.

We find, further, that defendant company did not meet its obligation fully in this regard, and to this and to the refusal to receive cane after January 12, 1895, is attributable the loss which the plaintiff has suffered.

The evidence by no means satisfies us that defendant company was warranted in refusing plaintiff’s cane -on and after January 12th on the ground that it was frozen and not up to the contract requirement.

On the contrary, we think it reasonably established that his cane was good. A sufficient test was made at another mill, after defendant’s refusal to receive, to demonstrate this. In the Delahoussaye case, supra, the cane had not been windrowed and was, consequently, frozen.

Defendant’s action in declining, after the freeze, to receive plaintiff’s cane, which had been protected from the cold by windrowing, im-iwesses us as arbitrary.

The conclusion arrived at, that defendant company had assumed the obligation of furnishing the necessary cars at the Brerard Switch to save the cane of its patrons there,, in no way conflicts with the written contract made on the 8th of,,October with the plaintiff and other parties.

Nothing is said in the contract as to the furnishing’ of the cars— who was to do this, whether the cane growers were to look to the railroad, or whether the arrangement for the cars was to be made by the buyers of the cane. The omission of mention of this left it open for proof, and the weight of the testimony is that defendant company undertook to look after the same.

It is also proven that such was the custom of the country in contracts of this character — that the factories buying cane for sugar making purposes would arrange with the railroad for cars, crib or crate the same, and then give the orders as to where — what points— the cars should be .dispatched .for cane. In this sense the buyers of cane controlled the cars.

This is not militated against by the stipulation in -the contract that the cane growers should deliver the cane at the factory. Tes, they were to deliver it there, but in cars that the buyers agreed .to supply. " ,

This stipulation as to delivery at the factory threw upon the sellers the onus of paying the freight charges on the cane, and this sufficiently accounts for the insistence by the buyer upon the insertion of this clause in the contract.

This view is strengthened by the fact that defendant company employed an agent at the Brerard Switch, who weighed the cane as it was brought to the switch in the carts of the contractors, and saw to the loading of the same in the railway cars. The freight charges were deducted by the buyer from the price of the cane and paid by the buyer to the transportation company.

The trial court estimated plaintiff had lost the product of thirty arpents of cane and that' the yield per arpent was twenty-eight tons. This is sustained by the evidence as to the number of arpents and the yield per arpent.

ITe figured the number of tons of cane lost at 840 and the-value thereof, under the contract, at $2.51, which is correct. This gave the sum of $2,108.40 for which judgment was rendered against defendant.

But it appears from the testimony of the plaintiff that after the refusal of defendant company to receive any more cane, he disposed of eighteen tons of cane to Octave Romero, who owned and conducted a small sugar mill in the neighborhood. These eighteen tons were not lost to plaintiff, and to the extent thereof there should be a reduction of the amount awarded against defendant. The eighteen tons were worth, at $2.51 per ton, $45.18.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof by the sum of forty-five dollars and eighteen cents, and that as thus amended the said judgment be and the same is affirmed, costs of appeal to bo borne by plaintiff and appellee.

Mokroe, J., takes no part.


author: UlaxohaRD, J.

text:
    No. 13,239.
    Mrs. Irene Davenport, Tutrix, vs. Wm. Adler & Co.; Mrs. Irene Davenport, Tutrix, vs. Wm. Adler & Co. (Consolidated.)
    IN RE Mrs. Irene Davenport, Tutrix, Applying for Oertirorari, or Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Syllabus.
    1. Once tile writ of review to tRe Court of Appeals is granted and a case is brought here, this court has the same jurisdiction to determine as to its faets, as well as to the law applicable thereto, as it would have were the case directly appealable here.
    2. with regard to a case resting on facts affirmed on one side and denied on the other to constitute a sale and delivery of movable property, made by a man who died the next day thereafter, a succession creditor, even the minor in necessitous circumstances, can claim no greater right than cpuld a creditor of the deceased who had attached the properly after the alleged sale and before the man died. And the rule is that whenever the owner has parted with his control over the property and cannot change its destination, his creditors cannot attach.

      William, Andrew Qollins for Mrs. Irene Davenport, Tutrix, Plaintiff.

      Farrar & Lethle for Win. Adler & Co'., Defendants.
   The opinion of the court was delivered by

UlaxohaRD, J.

The ease is before us for review on the following order made by the present organ of the court at the close of the late term, viz:

“Considering the character of this case, the fact of division among the .Judges of the Court of Appeals thereon (two of whom concur in reversing the judgment appealed from, the other dissenting and taking the view of the case presented by the district judge), and considering that there is drawn in question wliat interpretation of Art. 2458, O. 0. is sustained by the jurisprudence of the State as established by the decisions of this court, and, therefore, that the question’ of uniformity of jurisprudence arises, it is ordered that the writ of review do issue, that the record of the case'be sent up, and that the judges of the Court of Appeals -and the attorneys of plaintiff and defendants be notified, and that a delay of thirty days from the date of this order be granted the litigants to file briefs.”

In the brief of counsel for defendants it is stated that the difference between the Court of Appeals and the District Court was due to the weight the respective courts gave to the evidence, more than to a different view of the law entertained; and, hence, that plaintiff, by her application for the writ of review, in effect requests this court to review the evidence and to hold that the Court of Appeals erred in arriving at the conclusion it did relative to the facts. Counsel then go on to say this court has several times taken occasion to assert that certiorari under Art. 101 of the Constitution, will not lie to review decisions of the Court of Appeals as to facts.

That the writ lies only to review questions of law, is a mistaken conception of the article of the Constitution, which declares “it shall be competent for the Supreme Court to require by certiorari, or otherwise, any case to he certified from the Courts of Appeal to it for its review and determination, with the same power and authority in the case as if it had been carried directly by appeal to the said court.”

By that portion of the quotation we have italicised it plainly appears that once the writ is granted and the, ease is before us, we have exactly the same jurisdiction to determine as to its facts, as well as to the law applicable thereto, as we have in cases directly appeal-able here. And in Toole vs'. Minge, 50 La. Ann. 748, which was the first case to construe Art. 101 of the Constitution, and which announced the rule the court would follow in granting or withholding the writ, it Vas said “the power thus lodged in the Supreme Court should be exercised only in special or extreme cases, whose peculiar circumstances as to the facts or the law governing the same justify, in the opinion of this court, a resort to it.”

As against this counsel quotes from the syllabi of cases decided here since the decision in the Toole case, but an examination of those eases show the statement in the syllabi to be too broad — more so than the texts of the opinions warrant.

The case at bar, therefore, is considered to he before us for judgment on the evidence as to the establishment of facts, and for judgment on the law as applicable to ‘the facts.

The action is to recover the value of eleven bales of cotton and five tons of cotton seed. The' allegation is that the same were illegally abstracted by defendants from the Succession of R. Oliver McDowell.

The defense is that the cotton and cotton seed in question were purchased by defendants from McDowell before his death.

There is an admission as to the value of the property, $370, and also that credit therefor was not given to McDowell upon the books of defendant until after his death.

McDowell was a farmer and owed defendants a supply account for the year in which the cotton was raised. This account was credited with the proceeds of the cotton and seed, leaving a balance still due by ,McDowell or his succession.

The controlling facts, as we appreciate them, are: — The cotton was raised on a small farm near the town of Bonita in the parish of More-house, which McDowell had leased for the year 1894. He resided on another farm some 10 or 12 miles from Bonita. When the cotton on the leased farm was all open and ready for picking, McDowell brought his hands over from his home place and .gathered the crop, hauling it direct to a public gin at Bonita as it was picked. He was engaged with his hands three or four days gathering the cotton and hauling the same to the gin. He engaged the services of the gin to gin and press the cotton. The gin began upon the cotton, but after ginning a few bales the machinery became disabled and the gin was stopped for repairs.

Defendants, who are a commercial partnership, doing business in New Orleans, conducted a branch house at Bonita, which was under the management of J. A. Williams and M. F. Williams, who were partners therein.

McDowell, being a debtor of the firm desired to apply the cotton to the liquidation of the debt pro tanto.

The gin having broken down, and being unable to get the whole lot of the cotton speedily ginned, he bargained its sale to J. A. Williams for the firm of Wm. Adler & Co., the proceeds thereof to be credited on his account. The four bales then already ginned were taken as samples, and Williams agreed to buy the lot, ginned and unginned, and McDowell to sell.

The price agreed upon was five cents per pound, and the gin weights were to be taken as determinative of the quantity. There was a further understanding that in the event the cotton should market for more than five cents per pound, Adler & Co. would allow McDowell the difference on his account.

The seed derived from the cotton were included in the transaction, McDowell consenting to sell, and Williams to buy the same, at the price of $8.00 per ton.

McDowell gave instructions that the weights of the cotton and seed and a statement of his account be forwarded to him by mail to his Post Office at Jones, La.

The public gin at which the cotton then was, was conducted by Buatt & Weiss. McDowell directed Weiss to turn the cotton over to Williams and to collect from him the ginning charges, telling him (Weiss) that he had sold the cotton to Wm. Adler & Co. Weiss was treasurer and principal manager of the gin.

McDowell then left Bonita for his home.

The gin was repaired, the ginning of the McDowell cotton resumed and completed, the cotton was baled, the weights ascertained, both of the cotton and the seed, (estimating two pounds of seed to one of cotton), the same shipped to Adler & Co., sold and the proceeds credited on McDowell’s account.

The bagging and ties for the cotton were furnished by Adler & Co., and the gin charges paid by them.

McDowell owed M. E. Young for the lease of the land on which the cotton was grown, one hundred dollars, for which he had given his note.

This was settled by Adler & Co. the day of the purchase of the oot-ton, by crediting Young with that sum on their books, and charging McDowell’s account therewith. Young also owed the firm. J. A. Williams’ statement is that the amount so credited to Young was “paid on date of delivery as part of purchase price”, and he fixes the date of the sale and delivery as “on or about October 23, in gin at Bonita”.

He says he took possession of the cotton ginned at the gin by McDowell’s. instructions to the ginners to deliver the same to him when ginned.

The day following the sale of the cotton McDowell was assassinated at Wilmot, Arkansas.

He left a minor child, a boy, of whom his grandmother, the present plaintiff, became tutrix.

This child was left in necessitous circumstances. The grandmother and tutrix has received for his account $467.10 from the father’s succession, which has been finally settled and closed. The child has no other property.

There is evidence that M. E. Williams, one of the partners in the branch house of defendants at Bonita, being at the Court House in Morehouse parish at the time the inventory in the Succession of McDowell was taken, had given in to the notary the cotton and seed in the gin at Bonita as that of McDowell. It is urged that this estops defendants from now denying it. We do not think so. It was a mistake of Williams’. The cotton had then been sold and was not in the gin. Besides it is shown that the contract of sale and purchase of the cotton between McDowell and Adler & Co. had been negotiated and consummated for the latter by J. A. Williams, who alone handled the cotton business of the firm, and not by M. F. Williams. If the sale of the cotton and seed to Adler & Oo. had then been already completed, his mistaken action cannot be held to have resulted in undoing what had been done. A second inventory taken of the effects of the succession omitted the cotton and seed.

The Act of 1852 “to provide a homestead for the widow and children of deceased persons” is the law upon which this demand on behalf of the. minor is predicated.

By its terms the minor, being left without property of his own and in necessitous circumstances, may demand and receive from, the succession of his deceased father the sum of $1000, which is to be paid in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.

The issue here presented is, the minor having no property of his own, and being in necessitous circumstances, and having received from the succession of, his father less than the statutory $1000, may he, under the facts of this case, recover from defendants the value of the cotton and seed sued for, and add the same to the sum recovered from the succession in the effort to make up the full complement of the homestead claim.

Its decision turns on the answer to be. given to the question, was the ownership of the cotton in McDowell at the time of his death?

If it were, the cotton forms part of his succession and its value may be recovered on behalf of the minor.

If it were not, it does not form part of the succession and cannot be made amenable to succession claims of any character whatsoever.

If McDowell had parted with the cotton by sale prior to his death, the minor can take nothing herein.

“Succession” is the transmission of the rights and obligations of the deceased to the heirs. C. C. 871.

Therefore, if McDowell, living, could not change the destination of the cotton, nor exercise further dominion and control over it, neither can his succession and heir, for they can have, and claim no greater rights in and to the same than he himself had.

Further, if McDowell had so obligated himself to defendants in regard to this cotton that it had passed out of his power to make another disposition of it, that obligation is of binding' force upon his heir to whom it was transmitted.

A sale is complete and perfect as to the parties thereto as soon as they agree on its terms — the thing and price. But as to persons not parties to it, a delivery must take place before their rights can be affected. 1 R. 26; 3 R. 331; 1 La. Ann. 61; 16 La. Ann. 285; O. 0. 1922, 2247.

If the minor’s claim to the $1000 homestead is by virtue of heir-ship, then before his rights under the law arose this sale was complete and perfect. The minor viewed as heir is not to be considered a third person, and stands, quoad this transaction, in the father’s shoes, and if as between the father and his vendee the sale was complete, so it must be hold to be as between his heir and the vendee. The completeness and perfection of the sale could not be destroyed by the subsequent death of the vendor.

Sales of movable property are void against tona fide purchasers and creditors unless possession is given before such purchaser or creditor acquires his right by possession. C. 0. 2241.

If the minor’s claim to the homestead is that of creditor of the succession, and not in virtue of his heirship, then before he became a creditor, and before any rights as such accrued, this sale was complete and perfect as between the vendor and vendee.

The law seems to give him the status of a privileged creditor of the succession of the father by the fact of the latter dying and leaving him in necessitous circumstances. But the nature of his claim is such that in its last analysis his right is seen to rest for foundation upon the fact of heirship.

In the case under 'consideration before his right as creditor arose that thing had been done which passed the legal title to the cotton from the father to the defendants, and the cotton never became the property of the succession, and not being such cannot be made amenable to the succession debt.

A succession creditor can claim no greater right than could a creditor of McDowell who had attached the cotton after the sale to Adler & Oo. and before the death of McDowell.

The rule is that “whenever the owner has parted with his control over the goods and cannot change their destination, his creditors cannot attach”. 8 La. Ann. 45; 3 La. Ann. 82.

McDowell, here, parted with control over the cotton when he gave directions to the public ginner to deliver tlie same to Williams for Adler & Co. He delivered the cotton at the gin, sold it at five cents per pound to defendants and instructed the ginner to deliver to the latter’s agent who would, he said, settle for the ginning.

This was a parting with the control of the cotton by McDowell and a transfer of the legal title to Adler & Co. Chaffe vs. Heyner, 31 La. Ann. 594-624.

Here was the sale of a determinate thing — a lot of cotton in the Bonita gin which had been placed there by McDowell to be ginned and pressed. If the cotton remained his, the ginning and preessing expenses, including bagging and ties, would have been borne by him. But he sold the lot of cotton to defendants at a price agreed upon, instructed .the ginner to deliver same to them and to collect from them the expenses above. These instructions Were carried out. This cannot be held otherwise than as a sale “perfect between the parties” and the property “of right acquired to the purchaser with regard to the seller”, even though it be conceded for the sake of argument that what took place, as above, did not constitute delivery. C. C. 2456.

After what had occurred could a creditor of McDowell have seized tire cotton in the hands of the ginner as the property of McDowell? We think not.

By selling the lot of cotton belonging to him in the gin at five cents per pound, and directing the ginner to deliver the same to the purchaser, McDowell did that which was tantamount to “the transferring of the thing sold into the power and possession of the buyer”. 0. C. 2477.

Certainly, it manifested the consent of the parties to the delivery and comes within the rule of C. 0. 2476.

We think the case at bar controlled by the principle announced by Mr. Justice Martin as the organ of the court in Shuff vs. Morgan, 9 M. 622.

The decree of the Court of Appeals is found to be correct, and, accordingly, it is ordered that the same remain undisturbed.

(Monroe, J., takes no part).

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,297.
    State ex rel. O. P. Markham vs. S. D. Read, Judge Twelfth Judicial District, Parish of Vernon.
    Syllabus.
    1. The mere reservation of a hill of exceptions In a criminal cause, by entry of such reservation on the minutes, or on the note of evidence, does not suffice. It is necessary there should be a formal bill prepared, and the same be signed by the Judge.
    2. The writ of certiorari does not lie to grant relief where the party convicted of the crime had an adequate remedy by appeal.
    S. This court has appellate jurisdiction in a criminal cause when “imprisonment exceeding six months” is actually imposed.
    4. while final judgments and decrees in criminal causes -should be formally drawn up by the District Attorney and be signed by the trial Judge, and while it is considered bad practice to merely enter the conviction and sentence on the minutes of the court, it has been repeatedly held that the latter course suffices to uphold a criminal sentence. Art. 117 of the Constitution of 1898 is not construed as ordering otherwise.
    ^^PPLICATION for a writ of certiorari.

      James B. Monk and Frank Vaughan for Relator.

      Milton J. Cunningham, Attorney General, and A. B. Mitchell, District Attorney, for Respondent Judge.
   The opinion of the court was delivered by

Blanchard, J.

On November 17, 1898, the grand jury in and for the Parish of Vernon returned a bill of indictment against relator, charging him with bigamy. He was arraigned under the same and pleaded not guilty.

The day following a motion to quash the indictment was filed, tried and sustained.

Whereupon, the District Attorney immediately filed a bill of information reiterating the charge of bigamy. A second arraignment and plea of not guilty followed.

The information charged the bigamy to have been committed on October 14, 1897.

The accused (relator herein) tendered a plea of prescription of one year in bar of the prosecution.

It was tried and overruled.

The minutes of .court show that to this ruling defendant reserved a bill of exceptions, but no bill was in fact drawn, presented or signed. The record discloses none.

The mere reservation of a bill of exceptions in a criminal cause does not suffice. It is necessary there should be a formal bill prepared and signed by the trial judge. State vs. Haines, 51 La. Ann. 731.

On November 25, 1898, the accused was brought to trial and convicted.

Whereupon the court pronounced the following sentence upon him:

“To pay a fine of one hundred dollars and costs, and be incarcerated in the Parish Jail for twelve months, or work on public works of the Parish, and in default of paying such fine and costs, to remain in jail or on public works of the Parish for twelve months longer.”

This sentence appears upon the minutes of the court only, in the form above quoted. The District Attorney seems not to have drawn, nor the trial judge to have signed, a distinct judgment and decree.

Based upon the sentence pronounced as aforesaid, the accused was confined in the Parish jail. There he' remained quietly undergoing the sentence until October 23, 1899, when a petition addressed to this court for its remedial writ of certiorari was prepared.

This was presented to the court on November 3, 1899, and an order for the preliminary writ issued.

On the action thus taken the case is 'now before us.

It thus appears that relator waited nearly twelve months before applying for relief, and at this time (the date of handing down this opinion) he has, provided he has paid the fine of one hundred dollars and costs, served out in the Parish jail his term of incarceration.

His petition for' the writ sets forth his prosecution,, conviction and sentence; avers the fact to be that no formal or written judgment and sentence was signed by the judge; alleges the prescription of the offence by the lapse of more than twelve months from the date of the bigamy charged and before any action of the law officers was taken thereon, and asserts that the bill of information upon which he was tried contained no allegations negativing prescription.

It is further represented that at the date of his prosecution, trial and conviction, Section 800 of the Revised Statutes, which is the Statute under which he was sentenced, was no longer in force, the same having been repealed by Act 93 of 1898.

He charges the nullity of the proceedings had before the respondent judge and that he has for nearly a year been confined illegally in the Parish jail.

He gives as the reason for the delay in the application for relief, his inability to employ counsel, etc.

lie prays that his trial, conviction and sentence be declared illegal and void, and that he be released from confinement.

I.

The writ of certiorari does not lie to grant relator relief because of the prescription of the offence with which he is charged. His remedy was by appeal. 48 La. Ann. 787, 1249; 45 La. Ann. 243. When his plea of prescription was overruled and he reserved his bill of exceptions, he should have followed it up by tendering and having signed a formal bill, and then when sentence was pronounced upon him he should have prosecuted an appeal here. It was an appealable case. This court has appellate jurisdiction in a criminal cause when “imprisonment exceeding six months” is actually imposed. Const. Art. 85.

II.

The sentence pronounced upon relator was based on Section 800 of the Revised Statutes. That section reads: “If any married person shall marry, the former husband or wife being alive, the one so offending shall on conviction, pay a fine not exceeding five hundred dollars, and be imprisoned not exceeding two years.”

Act 93 of 1898, approved July 12, 1898, is now and was at the time of this trial, the law relating to bigamy and its penalty. It prescribes, in its first section, “that any person who shall be convicted of the crime of bigamy in this State shall be imprisoned at hard labor in the State Penitentiary for a period of not more than five years nor less than one year,” and, in its second section, it declares “that all laws or parts of laws in conflict with this Act be and the same are hereby repealed.”

It is clear that the later statute repealed the earlier, one found in Section 800 of R. S. and that the sentence pronounced upon relator is not that of the new law. It was the intention of the General Assembly, by the Act of 1898, to malte the crime of bigamy a felony— to deal with it as a more grievous offense than “the bigamy” defined and denounced in K: S. 800.

But the question arises should not this, too, have been taken advantage of by appeal.

The test is could it have been taken advantage of by appeal. If so, the remedy was by appeal and not by cerliorari.

Undoubtedly it could. Had the case been brought to this court by appeal, it could have been assigned here as error apparent on the face of the record that the sentence pronounced upon the accused, and which had been appealed from, was without warrant of law, was not responsive to the terms of the Statute denouncing a penalty against that crime.

Had this been done, this court might have held the point good, set aside the judgment and sentence and remanded the cause for a legal sentence by the court a qua, the accused meanwhile being held in custody.

The result of this, it is true, would have been to the disadvantage of the accused, since the penalty under the Act of 1898 is more severe than was that under the earlier statute. But that would have been the concern alone of the accused.

Besides all this, the question may well arise whether as to the crime for which relator stands convicted R. 'S. 800 does not apply in respect to the sentence pronounced upon the accused. This, because of the fact that the bigamy was committed while the earlier statute was in force and before the Act of 1898 was passed.

From the point of view of the prosecution it might well be argued, as defense against the relief sought, that to have applied the severer penalty of the later statute would have made such statute amenable to the charge of being ex post facto, and that as against it the accused is within the protection of both the Federal and State Constitutions.

Under the head of ex post facto is included every law that aggravates a crime, or makes it greater than when it was committed. Also every law that changes the punishment and inflicts a severer penalty than was authorized by the law annexed to the crime when committed.

Black’s Law Dictionary.

Relator’s application herein does not go to the length of demanding release on the ground that there is no law under which he may be sentenced for bigamy committed in October, 1897, and, hence, discussion thereof is omitted.

III.

The sentence pronounced upon the accused appears upon the minutes of the court only. There is no separate, distinct judgment and decree in the record.

This is bad practice. Final judgments and decrees in criminal Causes should be formally drawn up by the District Attorney and be signed by the trial judge.

But this is not absolutely essential. State ex rel. Pringle vs. Lake, Sheriff, 84 La. Ann. 1069; State vs. Thomas, lb. 1084,

Nor -do we consider Article 117 of the Constitution of 1898 as ordering otherwise.

For these reasons it is ordered that the preliminary writ herein issued be set aside, the relief sought by relator be denied, and this proceeding be dismissed.


author: BlaNChard, J.

text:
    No. 13,361.
    N. A. McCord, Tutrix, vs. The Vicksburg, Shreveport & Pacific, Rail Road Company.
    IN RE The Vicksburg', Shreveport & Pacific Rail Road Company, , Applying for Geriiorari, or Writ of Review, to the Oourt of Appeals, First Circuit, State of Louisiana.

      Shibls £■ Bussell for Vicksburg, Shreveport and Pacific Rail Road Company, Petitioner.
   The opinion of the court was delivered by

BlaNChard, J.

It is not considered that this case presents those exceptional features, whether of law or fact, which alone, under the rule announced in repeated decisions, justify the granting of the writ of review, and the same is, accordingly, denied.


author: Moxrob, J.

text:
    No. 12,783.
    Succession of Widow Charles Trouilly.
    Syllabus.
    1. Where an appeal is perfected, and the jurisdiction of this court has attached, it cannot be withdrawn by the appellant, without the consent of all the appellees, and of the court, nor will the court permit the withdrawal of a brief, properly filed, in support of such appeal, without the consent of all parties interested.
    2. Where a document, purporting to be an answer to an appeal, and a brief, filed in support thereof, do not deal with matters acted upon by the court «. quabut undertake to inject into the case, new issues of fact, which can not be met in this court by the appellants, and which this court can neither deal with as original matter, nor as matter included in the pending appeal, such document and brief may be ordered withdrawn from the files.
    3. An opponent, who, in a motion for a new trial, “acquiesces” in the judgment rendered, save as to certain particulars, is bound by such judicial admission and acquiescence, and will be heard in this court, only with respect to the particulars not included therein.
    4. The written acknowledgment of the decedent made shortly before her death, of a debt due to a particular opponent, is admissible in evidence as against , the succession and its creditors, and may be supported by the commercial books of the decedent and by oral evidence.
    5. As between appellees, the judgment appealed from must remain undisturbed in this court.
    6. The “delivery” of movable property, sold by an auctioneer in a succession proceeding, and the “collection” of the proceeds of the sale, is not “expert” work, for which the auctioneer is entitled to make a charge in excess of the commission allowed him by law, for making the sale.
    7. Nor, where the property consists of the contents of a store,, which is kept open, at the expense of the succession, and in which persons familiar with the stock are employed and paid up to the date of the sale, will an extra allowance be made to the auctioneer for “lotting” the goods.
    8. where the head of the community dies, leaving an estate consisting of a stock of goods in a going store, and his widow takes possession, as widow in community and usufructuary, and continues the business for a number of years, and the value of the community property, at the date of the death of the master, is shown, and it does not appear that there were any debts at that time, the children of the marriage are creditors of the succession of the surviving parent for the amounts inherited by them from their father.
    9. An executrix has no capacity to appeal on account of creditors, whose claims have been opposed and rejected, and if such creditors fail to appeal, the judgment will not be disturbed for their benefit, by this court, at the instance of the executrix.
    APPEAL from the Civil District Court for the Parish of Orleans. Xing, J.

      Rice & Montgomery and A. E. Billings for Joint Executors, Appellants, and Mrs. Joseph Gotteland, Opponent and Appellee.

      Henry Ghiapella for Frank Zengel, Public Administrator and Dative Testamentary Executor of the Succession of late Mrs. Charlotte Raskin, Appellant; Hughes & Favroi for IT. Genestal & Delzons, Opponents and Appellants; E. Evariste Moise for Edward Curtis, Opponent and Appellant. '

      Henry Renshaw for Henry Ghiapella and for Frank Zengel, Public' Administrator, Dative Testamentary Executor of the Succession of Mrs. Charlotte Raskin, Opponent and Appellant.

      Buck, Walshs & Bucle for Germania Ins. Co., Opponent and Appellee.
   The opinion of the court was delivered by

Moxrob, J.

Widow Charles Trouilly died March 8th, 1897, leaving, as sole heirs, her two daughters, Mrs. (widow) Scheideker and Jeanne Trouilly, wife of Joseph Gotteland. She left, also, an olo-graphic will, whereby she appointed Mrs. Scheideker her executrix, and left the disposable portion of her estate to her. Mrs. Scheideker qualified as executrix, subsequently married Xavier Raskin, and, thereafter, filed her account as executrix. Several parties interested opposed this account and, among others, Mr. and Mrs. Gotteland, and Genestal & Delzons, creditors, residing in France. There was judgment in the District Court ordering the account to be amended in some respects, and, as thus amended, approved. From this judgment Mrs. Raskin appealed, suspensively (by separate motions), as executrix and individually; Genestal & Delzons appealed, suspen-sively, and E. Curtis appealed, devolutively. No other appeals were taken. The transcript was filed May 2nd, 1898. Upon October 8th, 1898, Mrs. Raskin died, and, upon November 9th, 1898, the case was fixed for trial in this court, but was not tried. Thereafter, Mr. and Mrs. Gotteland were appointed joint dative testamentary executors of Widow Charles Trouilly, and Frank Zengel, public administrator, was appointed dative testamentary executor of Mrs. Raskin, and they were made parties to the pending appeal in those capacities, respectively. Following this, in March, 1899. Mr. and Mrs. Gotteland, in their said capacities of joint executors, filed in this court what purports to he an answer to the “appeals herein, by Charlotte Trouilly, wife of Xavier Raskin, testamentary executrix, and personally, and by. others,” which sets up certain matters in regard to the handling of the funds and property of the succession, of which they allege they have become informed since their appointment as joint executors, and, concerning which, there was, consequently, no hearing in the court a qua, and the transcript before us is silent.

MotioN to Disallow and Withdraw, etc.

In this condition of affairs, upon November 7th, 1899, the case being called for argument, the counsel who formerly represented Mrs. Raskin, both individually and as executrix, appearing for Frank Zengel, her dative testamentary executor, and suggesting that Xavier Raskin, her universal legatee, on the one part, and Mrs. Gotteland and her husband, upon the other, had adjusted, settled, and compromised all matters in controversy between them, and that it is therefore proper to withdraw the appeal taken by Mrs. Raskin, individually, from the judgment of the District Court in favor of Mrs. Gotte-land, sustaining her opposition to the account, moved the court “that said suspensive appeal, taken by said late Mrs. Charlotte Raskin, nee Trouilly, and now prosecuted by her said succession, represented by mover, as aforesaid, be disallowed, and withdrawn, as well as the answer to said appeal, filed in this court by said Mrs. Jeanne Gotte-land, nee Trouilly, and Joseph Gotteland, her husband, conjointly, dative testamentary executors of the succession of Widow Charles Trouilly, and that the briefs in support of said appeals and of said answer to the appeal, filed by said parties, respectively, be withdrawn from the files of the said court.”

This motion was heard contradictorily with the counsel representing Mr. and Mrs. Gotteland, joint executors, and individually, who, in behalf of said executors, object to the withdrawal of the appeal and say that the compromise suggested relates solely to personal matters between Xavier Raskin, universal legatee of his deceased wife, and Joseph Gotteland and his wife, in their individual capacities.

Aside from this objection, and whether we consider that Mrs. Raskin, executrix, was an appellee quoad the appeal of Mrs. Raskin, individually, and that Mr. and Mrs. Gotteland, succeeding to the executorship, became,quoad said appeal, appellees, officially, as contra-distinguished from their position as appellees in their individual capacities; or, whether we do not so consider, nevertheless, there are other persons who are appellees, quoad such appeal, and there is no suggestion that they have consented that it shall be withdrawn; under these circumstances, the motion, in so far as it relates to the appeal, should be denied.

C. P., 594, 595, 901; Mdme. de St. Romes vs. Levee Steam Cotton Press, 31 Ann., 228; Wolf vs. Poirier, 19th Ann., 103; Succession of Andrews, 16th Ann., 340.

And, for much the same reason, it should be denied as to the brief filed in support of said appeal, which was properly filed and deals with matters in which others besides Mrs. Raskin and her universal legatee are concerned.

In so far, however, as tine motion relates to the document purporting- to be an answer to the appeals by Mrs. Raskin, as executrix, and individually, and others, and to the brief, filed March 28th, 1899, in support of said document, we think the motion should prevail, for the reasons, that:

Quoad the appeal taken by Mrs. Raskin, as executrix, Mr. and Mrs. Gotteland, as her successors in office, succeed her as appellant, and have no standing- to answer their own appeal.

Quoad the appeal taken by Mrs. Raskin, individually, whilst Mr. and Mrs. Gotteland, both as joint executors and individually, are appellees, and might have answered if they had done so conformably to law, the document which they present as an answer, seeks to inject into the case new issues of fact, which were not presented to, or litigated in, the lower court, and which we can neither deal with as original matter nor review as upon appeal.

Wooten vs. LeBlanc, 32nd Ann., 695; Tanneret vs. Merchants’ Ins. Co., 32nd Ann., 667.

Beyond this, the document was not filed within three days before the case was first fixed for argument in this court, and, therefore, comes too late.

C. P., 890; Converse vs. Steamer Lucy Robinson, 18th Ann., 434.

Not being an answer to the appeals in any legitimate, or legal sense, and not having been filed within the time required for filing an answer, neither the document, nor the brief in support of it, is properly in the record, and they should be withdrawn. It will bo understood, however, that we place no construction upon the compromise referred to in the motion, nor do we prejudge any of the matters set up in the document called an answer to the appeals, since they are not before us for'present action of that character.

OppositioN op Gjbnestal and Delzons.

Opponents, who reside in France, asked, in the opposition originally filed by them, to be recognized as ordinary creditors in the sum of 10,114.74 francs, with interest, the equivalent of which amount is stated to be, in American money, $1,973.63; and they also asked to be paid, pro, rata with other creditors, from the funds of the .estate here in Louisiana. They were recognized in the account as ordinary creditors for 10,050 francs, or $1,951.84, but were relegated to some property in which the decedent is said to have had an interest, in France, for the payment of their claim. The judge a quo found the amount due them to be as stated in the account, and ordered that they be paid as prayed by them. They filed a motion for a new trial, in which they made the following statement, to-witi

“That, while this succession purports to be the succession of Mrs. Charles Trouiliy, it is, in fact, and in law, a settlement of the community of acquets and gains, between Charles Trouiliy and his wife, and the judgment rendered herein should be so amended as to pay your mover before the claim of any of the heirs has been»paid, your mover’s claim being against the community. That in all other respects, your mover acquiesces in the said judgment

This acquiescence, by judicial admission, estops the opponents from contesting the judgment appealed from, except as to the matter reserved by them, to-wit, their claim that they are creditors of the community which existed between the decedent and her pre-deceased husband, and should be paid by preference, etc., and the claim thus reserved is entirely inconsistent with that set up in their opposition; in which they say: — “That they are creditors of the decedent, Mrs. Charles Trouiliy,” and ask to be recognized as such. Moreover, the husband of the decedent died in 1884, and the account ran on with the surviving widow, up to the time of her death, in March, 1897, so that, if the opponents rely upon the position taken in the motion for new trial, the plea of prescription, set up against them, would prevail. In their brief filed in this court, however, opponents’ counsel fall back upon the position as originally taken in their opposition; hence the only point reserved in their appeal being unsound, and being abandoned, there is nothing left for them to bo heard about in this court, except in defense of the judgment in so far as it is in their favor.

The counsel representing the dative testamentary executor of Mrs. Raskin argues, in the brief on file, that the proof in support of the opponents’ claim is _ insufficient. This is rather a peculiar position for them to assume, in view of the fact that the claim of the opponents is recognized, upon the account which we are now considering, which was filed as the account of Mrs. Raskin, executrix, sworn to by her, and was, doubtless, prepared by the counsel themselves.

This recognition, standing alone, might not be sufficient, as against the other creditors, but it ought to be good as against the person who makes it; and, as far as we have been able to discover, there is no other appellant who raises the question. Upon the other hand, as between the appellees, the judgment must remain undisturbed (Hottinger vs. Hottinger, 49th Ann., 1465; Johnson et als. vs. Barelli, 20th Ann., 452). We may say, however, that we agree with the district judge, that the evidence offered was admissible, and was sufficient to establish the claim. That evidence consisted, in part, of entries upon the books of the decedent during a series of years preceding, and up to the date of her death; a letter addressed to the opponents and signed by the decedent only a few months before her death, in which she admits the correctness of the account (after pointing out an error of ten francs to the prejudice of the opponents), and encloses them a sight draft for 1,031.34 francs on account; and the acknowledgment and affidavit of the executrix, who, as the daughter and one of the heirs and creditors of the decedent, was in a position to know that the latter had been dealing with the opponents for many years, and was in their debt. Johnson vs. His Creditors, 16th Ann., 176; Canal & Banking Co. vs. Leeds & Co., Ltd., 49th Ann., 123.

The Olaiji op E. Curtis.

Mr. Cuitis was the. auctioneer, employed to sell the stock of goods held by the decedent at the time of her death. His claim was recognized upon the account as follows, to-wit:

Auctioneer’s commission on sales, 5 per cent.$219 46

Charity Hospital Tax, one-half of 1 per cent. 21 94

Porters, for delivering', collection, lotting, etc. 219 46

Times-Democrat, advertising auction sale. 41 98

Picayune, advertising auction sale. 10 80

New Orleans Bee, "advertising auction sale. 20 68

Total .$836 96

The judge a quo approved all the items thus allowed, with the exception of the item of $219.46 for “Porters for delivery, collections, lotting, etc.,” which was stricken off as unauthorized. ,

Act No. 104 of 1896 provides that “no auctioneer shall demand or receive a higher compensation for his services in sales of real estate, than * * ':i Upon all sales of movables, except stocks and bonds, the commission shall not he more than five per cent.”

It is argued on behalf of the claimant, however, “that he was employed especially to do certain work, not incumbent on him as an auctioneer, which involved his expert knowledge and skill and that of employees in a particular line of business, with all the expenses at-tendont upon a full, fair, and just compliance with his duties as such expert,” and it is said that the item in question represents his claim for services 'in that behalf. The item speaks very largely for itself. The “delivery” of goods sold by an auctioneer, and the "collection” of the amounts for which they were sold, is not “exp>ert” work, but is plainly included in the work for which the five per cent, commission is paid. Whether in a particular case, the executor or administrator might, with the authority of the court, employ experts to prepare goods for sale, is a question which we do not find it necessary to decide in the case before us. The decedent died March 8, 1897; the goods were sold, in the store which she had occupied, in the last days of April of the same year. In the meanwhile, the store had been kept open by the executrix, or under her authority. She had the assistance of Mrs. Gotteland, and of- Miss Labarre, the same’ saleslady who had previously been employed, and they both have been allowed compensation for services, rendered up to the date of the sale. We can see no reason, therefore, why the executrix (or the representatives of the executrix, when the latter was incapacitated by sickness) , with this assistance, should not have prepared and arranged the goods for the sale which was to take place, and we can not, under the circumstances, recognize the necessity for the employment, by the auctioneer, of a porter to do what is called the expert work of “lot-ting the goods.”

Beyond this, if it be true, and we do not dispute it, that “the expert lotting- of goods is. what makes good results,” the auctioneer, as such, whether he understands and attends to that branch of his business or not, certainly has an interest in having- it well done, for the reason that he is paid a commission, and the larger the sale, the larger his compensation.

Again, the item which was disallowed by the judge a quo does not figure on the account as compensation for expert work by the auctioneer, but as an allowance for work done by a porter employed by him, and it is impossible, either from the item itself, or the evidence offered to sustain it, to determine what proportion of the amount is intended as compensation for “lotting, etc." and what proportion for “delivering” the goods and receiving, or “collecting” the amounts for which they were sold.

The testimony, tending to show that the charges, as made, are such -as would be made by the auctioneer for making a sale for an individual, has no proper bearing upon the subject. It was probably because the charges ordinarily made, whether against individuals or otherwise, were regarded as being too high, that the law makers in this State took the matter in hand, so far as judicial sales are concerned, and regulated it. If the regulation is too stringent and the compensation allowed for such sales insufficient, the appeal for relief should be made to the law-making power, and not to the courts.

Tiie Appeal by tiie Executrix.

Mrs. Raskin, individually, has abandoned her appeal, but the appeal taken by her as executrix stands. The only argument which we find in its support, however, is that contained in the brief, filed on behalf of her dative executor, in which are discussed the claims of Genestal & Delzons, Mrs. Gotteland, the Notary Public and the Appraisers.

The matter of the claim of Genestal & Delzons has already been sufficiently considered.

Mrs. Jeanne Trouilly, wife of Joseph Gotteland, is one of the daughters of the decedent, issue of her marriage with Charles Trouilly, who died, as has been before stated, in 1884. The evidence satisfies ns, as it satisfied the judge a quo, that the matrimonial community, of which he was a member, was worth $45,000 at the time of his death. His widow took possession, as widow in community and usufructuary, having- on imperfect usufruct, and, at her death, left assets of a value far below the amount of her deceased husband’s interest in the community, which had been inherited, by his two children. It seems probable, from the evidence in the record, and from the fact that she makes no claim in that behalf, that Mrs. Raskin, the other daughter, received, during the life of her mother, all that was due her from her father’s succession. The evidence, however, fails to show that Mrs. Gotteland received any part of the amount due her and she was, accordingly, recognized by the judgment appealed from as an ordinary creditor of her mother’s succession, on that account, in the sum of' $11,250, and as a privileged creditor in the sum of $40 for services rendered the succession. As to the item of $40 it is sustained by proof, and seems not to have been seriously contested, the contest being waged against the larger claim. Concerning this latter, we are of the opinion that the judgment as rendered is correct. The property of the community, of which the widow and usufructuary took possession, consisted of a stock of goods which, it must be presumed, were consumed during the course of the thirteen years which elapsed before the death of the usufruc-tuary, so that the claim of the heir of the deceased partner is for their value at the time that the usufruct began.

Succession of Blancand, 48th Ann., 579.

The items placed upon the account representing the notary’s and appraiser’s fees were rejected and reduced, respectively, because the evidence, as offered, failed to satisfy the judge of the lower court that they were within the law. Neither the notary nor the appraisers have appealed. We do not understand that the executrix has such an interest as entitles her to be heard in their behalf.

The administrator of a succession has no capacity to “appeal on behalf of parties whom he has placed on his account as creditors, and whose claims have been opposed and rejected by the court.”

Succession of Pettis, 11 Ann., 177; Succession of Iíartigan, 51 Ann., 126.

For these reasons, it is ordered, adjudged, and decreed that the motion herein filed in behalf of Frank Zengel, dative testamentary executor 'of Mrs. Charlotte Trouilly, deceased wife of Xavier Raskin, be made the judgment of the court in so far as that Mr. and Mrs. Joseph Gotteland, joint dative testamentary executors, be directed to withdraw from the files of the court, the document purporting to be an answer to the appeals of “Mrs. Charlotte Trouilly, wife of Xavier Raskin, individually, and as executrix, and others,” and also the brief, filed March 28, 1899, in support thereof, and, in all other respects, that said motion be denied, and the rights of all parties interested, with regard to the custody and administration of the funds of this succession, except in so far as the same may be adjudicated upon herein, and with regard to the compromise effected between Mr. an,d Mrs. Gotteland and Xavier Raskin, universal legatee, be, and the same are, hereby, reserved.

It is further ordered, adjudged and decreed that the judgment appealed from be affirmed at the cost of the appellants, respectively.


author: MoNroe; J.

text:
    No. 13,059.
    Louise Bonnecaze, Curatrix, vs. J. P. Lieux.
    Syllabus.
    1. where a litigant resorts to executory process and is enjoined, and, in answer to the injunction, does not change to a proceeding via ordinaria, but prays that the executory process be maintained, and there is insufficient authentic evidence to sustain such executory process, it will be dismissed.
    2. Where the surviving spouse, as usufructuary of community property, makes no complaint that a mortgage granted by him upon the whole property does not cover the usufruct of the individual half of the deceased spouse, the heirs of the latter, as naked owners, have no standing to make such complaint.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Bart & Kernan for Plaintiff, Defendant in Injunction, Appellant.

      Lazarus & Luce for J. S. Lieux et als., Plaintiffs in Injunction, Appellees.
   The opinion of the court was delivered by

MoNroe; J.

Jean Pierre Lieux, being the husband, in community, of Adeline Samson, acquired certain real estate in New Orleans by purchase in 1864 and 1865. The wife died in 1819, leaving, as the issue of her marriage, six children, the youngest of whom is now about thirty-eight .years of age. She also left an estate consisting of paraphernal property and of her interest in the community. Upon May 18th, 1880, the surviving father effected a settlement with the children with respect to the paraphernal property of their mother, which apipeared to have come into his hands in cash, and the amount of which was fixed at $3,357.09. For the purposes, and as part, of this settlement, he paid to one daughter, her portion, $559.91%, in cash, and to the other five children, he gave his notes, each for $559.91%, dated May 18th, 1880, made payable in five year's, with interest at 8 per cent, from maturity, and secured by mortgage on his undivided half ifiterest iii the real estate hereinbefore mentioned.

Between May 10, 1880, and their maturity, payments were made on account of the notes thus given, so that, in 1885, the aggregate amount due on them had been reduced to something like $2000, or less; and, upon May 28, 1885, August Levis, acting as attorney in fact of Jean Pierre Lieux, borrowed that amount from Emile Bouny, and took them up. In acknowledgment of the debt thus contracted, Levis made a note, in the name of his principal, for $2000, payable in one year, and secured by mortgage executed before Charpentier, Notary, upon the whole of the property, the undivided one-half of which had been. mortgaged the year before. In the last act there inlervened L. P. DeBautte, who presented the outstanding notes issued by Lieux, and they were paid and cancelled, and the notary was authorized to cancel the mortgage by which they were secured, lit on May 21st, 1886, the note given to Bouny having, matured, Lieux borrowed $2000 from the plaintiff, and gave his note therefor, payable in one year, and also secured by mortgage upon the whole property hereinbefore mentioned, the money thus borrowed being used to i ake up the note held by Bouny.

Tt does’not appear that Lieux ever acquired from his children the undivided half interest in the property, thus mortgaged by him, which they had inherited from their mother, or that they ever consented to the mortgage of their interest in said xaroperty, or knew of it, until within a year or two of the institution of the present proceedings. Mr. DeBautte was a traveling salesman who frequently visited Pointe Coupee, where the Lieux family lived, and, about the clam of the Oharpentier mortgage, was requested by- the Lieux heirs to bring' the notes, which they had received from their father, to New Orleans, and to present them to Levis, by whom, their father informed them, they would be paid; and DeBautte did this, as a matter of accommodation. Iiis memory is uncertain as to the details of the matter, but there is -nothing in his testimony or in that of the other witnesses, or in his appearance in the act of mortgage (merely-to acknowledge payment of the notes, and grant acquittance) to justify the belief that the owners of-the notes knew that they were to be paid from the proceeds of a mortgage upon property owned by them. From May, 1887, up to the filing -of the suit thereon, interest was paid on the note given to the plaintiff, and it was extended from time to time; and, on more than one occasion, this was done either by F. O. Lieux, or John S. Lieux, two of the heirs, who had, in the meanwhile, come to New Orleans and gone into business with DeBautte. But they appear, from the evidence, to have acted for their father, and in ignorance of the fact that the mortgage securing said note affected their interest in the property. Finally, in 1897, F. J. Drey-fous, in behalf of the plaintiff, as the holder of the said note, addressed a communication to the maker, on the subject of its payment, and received a reply, warning him that the property mortgaged was community property.

In June, 1897, however, the plaintiff sued out executory process and caused the entire property to be seized and advertised, and thereupon, the six children and heirs of Mrs. Lieux injoined; setting up the title, derived from her, to an individual half interest therein, and alleging that said interest had not been mortgaged by them or by their consent. To this the defendant in injunction replied that J. P. Lieux, the mortgagor, was the owner of the whole property, that the proceeds of the mortgage had been used to satisfy the pre-existing mortgage, executed before Oharpentier, the proceeds of which, in turn, had been used to pay the mortgagor’s notes, given to the plaintiffs in injunction, as the purchase price of their interest in the property, seized, and that, having parted with their interest, and received the price therefor, plaintiffs in injunction should be held estopped to make their present claim. Defendant in injunction further alleged that she had been unable to find the act whereby the plaintiffs sold their said interest to their father, and she accordingly annexed to her answer interrogatories on facts and articles, upon that, and other matters, which she prayed that they be required to answer. She further alleged that, in any event, the usufruct of the father, was covered by her mortgage, and she prayed for judgment authorizing her to proceed via executiva, and reserving her right to damages.

The sale proceeded as to the undivided interest of Jean Pierre Lieux, and as to his usufruct of the entire property, and both were adjudicated to Mr. Dreyfous. • There was a trial of the injunction suit, and a judgment, recognizing plaintiffs in injunction as naked owners of an undivided half interest in the property seized, subject to the usufruct of their father, as surviving spouse; annulling the mortgage and perpetuating the injunction quoad said interest, and restricting the seizure of the same to the usufruct. Defendant in. injunction appealed and the plaintiffs have answered the appeal with a prayer for an amendment of the judgment in' so far as it holds the usufruct subject to the seizure.

In their argument in this court, the counsel for the plaintiff in the executory proceeding have abandoned the position assumed in their answer to the petition for injunction. They admit, in the brief filed by them, that the evidence fails to show that J. P. Lieux ever acquired the interest, in the property mortgaged, which the plaintiffs in injunction inherited from their mother, and, hence, admit (by necessary deduction) that he had no authority to impose a mortgage upon that interest.

They argue, however, that the debt due by Lieux to his children was a community debt, for which the whole property in controversy, as community property, was bound; and that, as the plaintiffs in injunction were paid that debt from the proceeds of the Oharpentier mortgage, and the Oharpentier mortgage was satisfied from the proceeds of the Dreyfous mortgage, the plaintiffs in injunction should be held estopped from now claiming the property, until they have refunded, to the extent that they have been benefited by it, the money received from the Dreyfous mortgage.

We are of opinion that this argument can not be entertained in the present aspect of the case.

First. — Because no such estoppel is set up in the pleadings; the ground of estoppel, relied on in the answer to the injunction, being, that the plaintiffs in injunction had sold their interest in the property and received the price, and conld not now be beard to claim the property.

Second. — Because the proceedings is still via executiva, and the rights of the parties must be governed by the law and the rules of practice regulating proceedings in that form.

Executory process can only be resorted to, when the creditor’s right arises from an act importing- confession of judgment, and which contains a privilege or mortgage in his favor; or when he demands the execution of a judgment rendered by a tribunal of this state other than that in which the execution is sought. C. P., 132.

Plaintiff proceeded, in the instant case, upon what purported to be an act of mortgage; but, quoad the interest of the plaintiffs in injunction, it has been shown that the act was executed without authority. The claim as to them, then, falls to the level of an ordinary demand, insufficiently supported by authentic evidence, which can only lie prosecuted via ordinaria. Courtney vs. Andrews, 10 R., 180; Fowler vs. Beattie, 10 Ann., 275; Roane vs. Wood, 32 Ann., 801.

The proceedings might, no doubt, have been changed into a proceeding- via ordinaria, had the plaintiff so elected, but, in her answer to the maintenance of the executory process, which has been partially executed, she is careful to insist upon her right. Under these circumstances, and as the facts upon which she now seeks to recover, as against the plaintiffs in injunction, are not susceptible of proof by authentic evidence, the relief for which, alone, she prays can not be granted.

Tildon vs. Dees, 1 R., 401; Chambliss vs. Atkinson, 2nd Ann., 488.

We concur, however, with the learned counsel, in the opinion that the plaintiffs in injunction have no standing to question the right of the mortgagee to seize, under her mortgage, the usufruct of the mortgaged property which is vested in the mortgagor. The usufructuary is not complaining, and the plaintiffs in injunction have no such interest, as, under the circumstances of the case presented, entitles them to do so.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be affirmed at the cost of the appellant.