text:
    No. 10,255.
    Amant Bourgeois vs. Octave Jacobs. Mrs. Julia Kunemann, Third Opponent.
    1. The mortgagor is not an essential party to a third opposition by a mortgagee contesting the validity and rank of other mortgages, and an answer on his part is in the nature of an intervention — he having not been cited.
    2. In case the same person is sued by same plaintiff in two different courts at one and the same time, for the same cause of action, and without tendering the declinatory exception of litts pendens, answers both demands, the first judgment rendered by either court would be valid and executory against the party cast in the action.

      5. The Federal jurisprudence on this question is the same as our own.

      4. The judgment of the court a qua having decreed the cancellation of one of the mortgages contested by third opponent, and this mortgagee not having appealed or filed an answer to the appeal, the is without interest this court without jurisdiction to alter it.
    6. The same is true of the purchaser who has appealed.
    6. The judge having directed the sheriff to retain the proceeds of sale subject to the further order of court, and he having acknowledged service and waived citation, the purchaser agreeing to become the stakeholder in his stead and consenting to pay such judgment as may be rendered against him for the proceeds, becomes thereby a party to the suit, and such an agreement is tantamount to a confession of judgment, and no further citation is required.
    APPEAL from the Twenty-second District Oonrt, Parish of St. James. Duffel, J.

      Charles Louque for Third Opponent and Appellee.

      Sims & Poché and E. N. Pugh for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

On the 7th of March, 1878, Octave Jacobs became the purchaser of a sugar plantation in the parish of St. James for-the sum of $42,300, and of this he paid $15,000 in cash, and for the residue he issued a series of promissory notes payable to his own order, and same were by himself endorsed; and to secure the same he stipulated and consented to a special mortgage and recognized the vendor’s lien on the property.

Amongst others, there were three notes — one for $3850, one for $1100 and one for $550 — all of which matured on the 1st of February, 1889; and there was a stipulation in the act that the mortgage securing the payment of those three notes should have preference and priority over the security it gave to all others; in other words, those three notes were concurrently secured by a first mortgage, and all others by a second mortgage.

On the 10th of February, 1888, Amant Bourgeois procured an order of seizure and sale against the mortgaged property in the enforcement and collection of the note of $550 and interest, as secured by said first mortgage and vendor’s lien.

On the 12th of March, 1888, during the pendency of those executory proceedings, Mrs. Julia Kunemann filed a third opposition on the grounds, substantially, viz.:

That she was the holder and owner of another of the series of notes which were issued by Octave Jacobs for $8000, made payable on the 2d of March, 1882, with 8 per cent, per annum interest from date and secured by the second mortgage contained in the act of sale.

That upon the mortgage certificate there appears mention of a mortgage in favor of the Consolidated Association of the Planters of Louisiana to secure the payment of the unpaid portion of the stock of said association, amounting to $40,000; that the shareholders have long since paid in on calls the sum of $612,000, which is and was more than sufficient to meet and discharge the whole of the indebtedness of said bank to its bondholders, or to the State as their subrogees, and no other debt is now due; that same was paid to the officers of the State having the control of the affairs of the bank and is a full discharge and satisfaction of all claims which can be made by the State, or stockholders, and the said mortgage should be canceled and erased.

He prays to be paid from the proceeds of sale by preference over the seizing creditors the full amount of his note, with attorney’s fees, interest and costs, and that the sheriff be ordered to retain said sums subject to the further order of the court; and it was so ordered.

The receiver of the Consolidated Association was cited in March, and the seizing creditor in April, 1888; and on the 26th of April, 1888, Octave Jacobs filed an answer and denied that any interest had run or accrued on the note held by opponent since the 2d of March, 1882, and averred that the act of sale to him contained a stipulation to that effect.

He further avers that, in a suit entitled Widow Csesar Kunemann vs. Octave Jacobs, the plaintiff made claim for interest on said $8000 note, from and after the 1st of March, 1882, and, upon a trial contradictorily had, judgment was pronounced in his favor, rejecting her demand and decreeing that, under the stipulations contained in said act of sale, “no interest could be exacted pending the liquidation of said association.”

He avers further that the affairs of said association have not yet been liquidated, and that neither interest nor capital of said debt can be collected because same are not due, for that reason; and he pleads the said stipulation and covenant in said act of sale and mortgage, and said judgment as res judicata and as evidencing the non-maturity of said debt and interest. He prays for the rejection of plaintiff’s demands in toto.

The seizing creditor answers that his claim — under which the property was sent to sale — is entitled to be paid by preference over that of opponent, from the proceeds of sale, the capital and interest of his note, attorney’s fees and costs.

The receiver filed an exception to the jurisdiction of the court, and, this being overruled, he filed no answer and took no further part in the proceedings.

The judgment confirmed and made final the judgment by default taken against the Consolidated Association, and directed and decreed the recorder of mortgages to cancel and erase from the books of his office any and all mortgages, and assumptions in favor of the same; overruled the various pleas of the defendant, Octave Jacobs, and decreed the opponent entitled to be paid the full amount of his-demand, capital and interest; ordered and decreed that Ellen Mason, wife of Octave Jacobs, purchaser at sheriff’s sale of the mortgaged property, should, under her agreement to keep the proceeds in lieu of the sheriff, pay the same, first to Amant Bourgeois, the amount of his debt, with interest, cost, etc.; and second to Julia Kunemann, opponent, the amount of her debt, interest, attorney’s fees and cost, and directing the cancellation of the mortgages and liens securing same. From this judgment Octave Jacobs appeals, andn either of the appellees has filed an answer or requests any amendment of the decree.

Under this state of facts, it is manifest that no alteration can be made in the judgment, in respect to any one of the appellees. This court has no jurisdiction or power to do so. Inasmuch as the judge a quo found and decided that the stockholders of the Consolidated Association and the State had been fully satisfied, adjudged and decreed that its mortgage should be canceled and erased, and this decree remains unappealed from ,by the association, we are at a loss to perceive on what foundation Jacobs’ right of appeal is predicated. His answer did not and could not deny the existence of the notes he had executed, and the mortgage he consented to secure their payment. It only asserted that the demand of opponent was premature, because the payment of the note she held had been procrastinated by its terms, and a covenant in the act of sale, until the affairs of the Consolidated Association should have been fully liquidated and settled. This, the judgment of the court declared, was an accomplished fact and ordered the cancellation of its mortgage. As he did not owe any part of the debt due the State or the stockholders, this cancellation was all the protection he or his vendee needed.

This legal purpose being attained, his other complaint ceases to be of any importance.

The receiver of the Consolidated Association having been regularly made a party defendant, and cited; he having formally excepted to the jurisdiction of the court ratione personse, and his exception having been overruled, and no bill of exceptions reserved; final judgment having been rendered against him on default, and no-appeal having been taken therefrom — it seems to us quite unreasonable that the debtor should entertain apprehension about the pending suit in the United States Circuit Court; for, most assuredly, a copy of this opinion and decree would be competent evidence therein.

Our Code of Practice provides “that the same cause can not be brought before two separate courts, though they be possessed of concurrent jurisdiction; the judge before whom the action was brought first, shall sustain his jurisdiction, and the defendant shall be entitled to have the case dismissed by the other court, and recover costs.

Nevertheless, if the defendant, instead of claiming to be dismissed, answer in the two actions, in the two separate courts, the first judgment rendered by either of them shall be* valid and executory against the party cast in the action. All proceedings shall be staid in the other court, and the plaintiff dismissed after paying the costs.” Art. 94. Succession of Townsend, 37 An. 409.

On the question of litis pendens, the Federal jurisprudence is the same as our own.

In Stanton vs. Embry, 93 U. S. 554, the Supreme Court held that the pendency of a prior suit in another jurisdiction is no bar to a subseqent suit in a Circuit Court, even though the two suits are for the same cause of action and between the same parties. Gordon vs. Gilfoil, 99 U. S. 169.

But the debtor Jacobs did not urge the plea of lis pendens in either suit and the State court rendered the first judgment, and it is valid and executory, and by it he may be protected in the United States Circuit Court.

This argument and these deductions are just as true and as strictly applicable to the complaint of the purchaser, Mrs. Jacobs, who is also an appellant in her'personal capacity and occupies the relation of a third person to the judgment appealed from, and appears by petition and citation of appeal. The record shows that the property was adjudicated to her at $25,000 during the pendency of the executory proceedings, and with full knowledge of the contents and purport of the certificate of mortgages which is annexed. How she can entertain any hope of relief we cannot conceive. If her appeal is to serve any purpose whatever it would appear to be rather to increase than to lessen the burdens affecting the property purchased, as she has no interest in the disbursement of the purchase price among the parties before the court.

Her complaint of the writ of citation is equally without force. So far as the funds to be distributed are concerned she is but a stockholder, and stands in the room and stead of the sheriff who made the sale under an order of the court, and who was directed and required “ to retain in his hands, subject to the further order of the court, and out of the proceeds of sale * * to pay the sum of $8000, with 8 per cent, per annum interest from March 7, 1882, and 5 per cent, attorney’s fees, and costs.”

The sheriff accepted service and waived citation. At the sale Mrs. Jacobs became the adjudicatee, and for the mutual convenience and security of all parties in interest the following agreement was made:

“Parish of St. James, March 17, 1888.
“Be it known that, on this 17th day of March, 1888, it has been agreed and understood by and between the purchaser of the property, Mrs. Ellen Marson, .wife of Octave Jacobs, and Mrs. Julia Kunemann, that in consideration of the purchaser of the plantation this day sold in the matter of Amant Bourgeois vs. Octave Jacobs, No. 1323 of the docket of the Honorable the Twenty-second Judicial District Court for the parish of St. James, which plantation is fully described in the said proceedings, retaining in her hands the amount of the third opposition claimed herein, said amount to carry interest stipulated in said note from this day, the said purchaser binds herself to pay the amount of the judgment to be rendered on such third opposition.
(Signed) “Sims & Poche,
“Attorneys for Mrs. Octave Jacobs.
“Chas. Louque,
“Attorney for Mrs. Kunemann.’’'’

She has since retained the money in her- hands, and has it now. This paper furnishes the proof of this fact. She occupies just the same position as the sheriff did, and is just as amenable as he is or was “to the further order of the court.” This agreement contains what, to our thinking, is the equivalent of a confession of judgment. Certainly no further or additional citation was contemplated by the parties. The judge of the vicinage had all the parties before him, and was familiar with the parties and all of the incidents of the trial, and as lie seems to have entertained an equitable view of the matter in hand we find no occasion to reverse his finding.

Judgment affirmed.

The Chief Justice and Mir. Justice Breaux, not having been present when this case was submitted, take no part.


source: Caselaw Access Project

author: McBnbrv, J.

license: Public Domain

text:
    No. 11,331.
    The State ex rel. Jean Lamouraine vs. Judge of Division “B,” Civil District Court for the Parish of Orleans.
    In tlie exercise of the supervisory jurisdiction of the Supreme Court over inferior tribunals, we will not, when a judge has voted correctly, although the proceedings were irregular, bub no injury done to the party, remand the case for him to make precisely the same ruling in the regular course of procedure.
    In summary process to obtain possession of leased premises the defendant must comply with Sec. 2157, in order to obtain a suspensive appeal.
    Where the cause of action is not within the jurisdiction granted by law to the tribunal, it can dismiss the suit at any time it is brought to its notice.
    y^PPLICATION for Oertiorari, Mandamus and Prohibition.

      John O. & Ghas. A. Wiehliffe for the Relator.
    Chas. J. Théard and A. N. Fleming for the Respondent.
   The opinion of the court was delivered by

McBnbrv, J.

This is an application for writs of mandamus and prohibition against the respondent judge.

The relator was defendant in a suit instituted against him in the Second Oity Court of New Orleans for the purpose of ejecting him from leased premises. The suit was tried and judgment rendered against him in pursuance of Secs. 2155, 2156,2157, Revised Statutes.

The defendant applied for a suspensive appeal, and tendered the bond. The appeal was denied.

He applied for the necessary writs to the Civil District Oourt, parish of Orleans, to enforce his right of appeal. One of the judges of said court issued an order as follows :

“ Let the petition be filed and let the writs of certiorari, mandamus and prohibition issue as prayed for.”

On the allotment of cases this application went to the judge of Division “B” of said court. The judge of Division !tB ” set aside the order for the writs mentioned, and made the usual order in such cases, commanding the judge of the Second City Oourt to produce the record in the suit for the ejectment of defendant, and to show cause why the writs originally prayed for by defendant should not be granted.

The jfidgees of said city court produced the record with his answer.

The trial of the rule was fixed for the 11th September, 1893. The judge on an inspection of the record became satisfied that the Oivil District Court was without jurisdiction to grant the order for a suspensive appeal, and denied the relief prayed for and discharged the rule. In his answer the respondent judge says that although not personally present the relator and his attorney had full notice and knowledge that their application for said writs would be heard on the day and hour named for the trial of said rule. The relator filed a motion for a new trial, which was heard and overruled.

In the application for the writs to this court the relator avers that more than $25 were in dispute in the ejectment suit, and that he was entitled to an appeal from the judgment rendered against him.

' He complains of the order of the respondent judge in setting aside the order granted by one of the judges of the Oivil District Oourt before the allotment of said case, and of the setting of the rule to show cause for trial without giving the relator due notice of the same.

The order granted in the first instance did not mention any day when the rule asked for by relator should be tried. It ordered that th,e writs prayed for should issue. Had the case been allotted to said judge, he would undoubtedly have had the power to so alter the order as to require the respondent to answer on a day certain why the writs should not be made peremptory. The judge of Division “B” did that which the judge who granted the order could have done. The rights of relator were not in any way affected. His petition for the writs was still pending and on file, and although the first order was set aside, yet it was only for the purpose of granting the order as prayed for by relator. The respondent judge fixed the trial of the rule for a certain day. Plaintiff and his attorney were absent, and although not formally served with notice they knew of the day fixed fcr the trial. But whether this was sufficient notice or not, the entire record was before the judge, and the following facts were before him. None other could have been urged by the relator, as these were shown by the record and were conclusive.

The plaintiff sued for the possession of leased premises. The defendant filed amotion to set aside the order fixing the case for trial. He filed an exception to the jurisdiction of the court, on the sole ground that the “demand of plaintiff fails to show any jurisdiction of this court.” He filed an exception that the full name of the plaintiff had not been dsclosed. These exceptions being overruled, he filed an answer as follows: “Now comes defendant and for answer shows that plaintiff has accepted rent for the premises since the commencement of these proceedings, and is therefore not entitled to prosecute this action. He further makes general denial of plaintiff’s claim. He shows that under his contract with plaintiff he is entitled to still hold the premises in dispute.”

There was judgment for plaintiff, and the defendant filed a motion for a new trial. After the rendition of the judgment the defendant made an affidavit and filed the same, stating that the amount in dispute was over $26. He then applied for a suspensive appeal and tendered his bond. The face of the record shows conclusively that the Civil District Court was without jurisdiction to arrest the judgment by ordering a suspensive appeal. There was no special defence supported by oath of defendant that all the facts contained in the answer were true and entitle him to retain possession of the leased premises, so as to suspend execution of the judgment pending the appeal. The arrest of the judgment could not therefore be ordered by the District Court. This judgment must be executed in accordance with the provisions of the Revised Statutes under the chapter of Landlord and Tenant. But we do not understand the summary process for the ejectment of tenants prevents a devolutive appeal from the judgment where the amount in dispute vests the appellate court with jurisdiction.

The rent was for $30 per month, and the relator alleges in answer that the lease had been continued for another month and that he was entitled under his contract to remain in possession for the unexpired term. But no application was made for a devolutive appeal.

The respondent judge found on his docket an application for writs to compel a suspensive appeal to his court of a case of which he had no jurisdiction. The face of the papers showed that the order had been itnproviolently granted. He would have had in the first instance the power to refuse to order the issue of the alternative writs. He had a right therefore ex proprio motu to dismiss the case for want of jurisdiction at any time it was brought to his notice. 22 Barb. 271; 23 Conn. 172; 2 Ohio, 26; 13 Vt. 175; 4 Ill. 133; 38 An. 704; 41 An. 540.

If the relief prayed for by relator were granted, the result could only be a repetition of the decree rendered by the respondent judge.

Conceding that there was irregularity in the proceedings below in disposing of a case of which he had no jurisdiction to arrest the judgment and grant the relief prayed for, we can not compel him to assume jurisdiction where he has none; nor will we so exercise the supervisory jurisdiction of this court over inferior tribunals so as to compel them to withhold their signatures from a judgment that is correct in eliminating from their dockets cases which have been improperly lodged there. State ex rel. Suberville, 45 An. (just decided).

The relief prayed for is denied and the rule granted herein discharged at relator’s costs.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,314.
    The State ex rel. Louis Suberville vs. Judges of the Court of Appeals.
    The Court oí Appeals has no jurisdiction of a demand for alimony, as it is an accessory to the principal demand in a suit for divorce or separation from bed and board, of which it has no jurisdiction. Arts. 81, 95, Const.
    An inferior court having an application in aid of its appellate jurisdiction for writs of mandamus and prohibition passed upon its jurisdiction, correctly, this court will not do a vain and idle act, in compelling said court by the exercise of its supervisory jurisdiction to pass a second time on said question of jurisdiction.
    y^PPLICATION for Writs of Certiorari and Mandamus.

      J. N. Wolfson and A. L. Tissot for the Relator.
    Respondents in propriis personis.

   The opinion of the court was delivered by

McEnery, J.

The relator alleges that in the suit of Louis Suberville vs. Lorenza Adams, Civil District Court, Parish of Orleans, for divorce, a rule was taken on behalf of defendant, which was made final, ordering plaintiff to pay the defendant wife $60 per month alimony, with interest, on monthly payments; that the rule.was defective in not assigning a domicil for the defendant pendente lite, and that she had occupied said domicil since said assignment, and that she was in need of the necessaries of life; that in consequence of the defects in the allegations of the application for the rule as above stated, the judgment thereon was a nullity. That previous to the expiration of the delay for an appeal an execution issued on said judgment and plaintiff’s property was seized to satisfy the same. That within the period allowed for an appeal relator applied for and obtained an order of appeal from said judgment, returnable to the Court of Appeals for the parish of Orleans, which was perfected by relator, thus divesting the District Court of jurisdiction and giving jurisdiction to the Court of Appeals.

That after giving the appeal bond énd divesting the jurisdiction of the said District Court the defendant took a rule on plaintiff, the relator, to show cause why said order of appeal should not be set aside and execution on the judgment for alimony issue, on the ground that the Court of Appeals was without jurisdiction.

Relator excepted to the rule on the ground that the District Court was without jurisdiction, having divested itself of the same by granting the order of appeal, and that the Court of Appeals, to which an appeal had been taken, was alone vested with the power to determine and pass upon the jurisdiction in said suit.

The rule was made absolute, and an alias execution issued and the property of plaintiff again seized. An application for an order of appeal from this judgment was made by plaintiff and overruled. After these several proceedings the relator applied to the Court of Appeals for the parish of Orleans for writs of mandamus and prohition, directed to the judge of the Civil District Court, to compel the district judge to grant appeals from both judgments on the rules to show cause why alimony should not be allowed defendant, and the judgment setting aside the order of appeal from the judgment on the first rule. The alternative writs issued as prayed for, and on trial of the rule it was discharged and the relief prayed for denied, on the ground that the court had no jurisdiction of the matter in dispute.

The relator now invokes the supervisory jurisdiction of this court to compel the district judge to grant the orders of appeal prayed for, and the Court of Appeals to take jurisdiction.

From the above statement of facts it appears that the relator appealed from the judgment allowing alimony to the defendant wife to a court having no jurisdiction of the principal demand, the suit for divorce.

The demand for alimony grows out of the suit for divorce and is inseparable from it. It is an incident to the principal suit, an accessory to it. It is granted pending the divorce suit, and is not dependent upon the judgment in the case. DeLesdernier vs. Husband, 45 An. —.

The Supreme Court is the only one having appellate jurisdiction of suits for divorce and of separation from bed and board. Article 81 of the Constitution.

But the relator contends that the Court of Appeals, after the order of appeal had been granted, was vested with jurisdiction and that it alone had the power to determine it in the case pending on its docket, and it was error for the judge to set aside the order of appeal from the judgment allowing alimony to the defendant, as the District Court in that decree passed upon the jurisdiction of the Court of Appeals.

The Court of Appeals in the trial of the rule sued out by plaintiff and relator for mandamus and prohibition passed upon this question, and this was all that could be expected if the case had been docketed and the jurisdiction of the court in the matter passed upon. The issue was presented by relator in the application for the writs and the Court of Appeals necessarily had to pass upon its jurisdiction over the case.

We are not called upon to pass upon the ruling of the district judge, as these matters were before the Court of Appeals in matters affecting its appellate jurisdiction under Art. 104 of the Constitution.

The Court of Appeals has already passed upon and decided that it has no jurisdiction of the appeal from the judgment allowing alimony.

As this judgment is correct we can not therefore compel it to assume jurisdiction when it has none.

To compel the court to consider the appeal because it was sent to that court, and to pass upon the question of jurisdiction in its order on the docket, would be doing a vain thing, as it has already, in the judgment in the rules invoked by plaintiff, determined this question.

The relief prayed for is therefore denied, and the rule granted herein discharged.


author: Breaux, J.

text:
    No. 11,317.
    The State ex rel. William H. Stuart vs. Francis A. Monroe, Judge, et als.
    The remedy is by appeal, and not by writs of certiorari and prohibition.
    If the plaintiff does not choose to furnish a bond of release, after ten days have elapsed, subsequent to the sequestration of the property, the defendant is not precluded from the right to bond.
    The right to bond property sequestered is not suspended by a suspensive appeal from a judgment in which that right is not involved.
    ^PPLICATION for Writs of Certiorari and Prohibition.

      Girault Farrar, Henry J. Delesdernier, Joseph Brewer and Horace L, JDufour for the Relators.

      Carroll & Carroll for the Respondents:
    Relators’ petition is fatally defective in that it does not allege that a plea was filed to the jurisdiction of the court below and that the plea was overruled. 29 An. 806; 37 An. 845; 38 An. 596; 38 An. 920; 40 An. 607.
    Even if the allegations as to jurisdiction be sufficient, relators affirmatively show that, on the rule to bond, they raised other defences without reserving the benefit of any plea or objection to the jurisdiction. Such pleading waives the plea to the jurisdiction even if it had been filed. 10 L. 228; 18 An. 339; 30 An. 596; 32 An. 1148; 41 An. 141.
    As a matter of fact, relators have full and adequate remedy by appeal. 5 N. S. 42; 26 An. 65; 35 An. 515.
    Certiorari and prohibition do not lie when there is remedy by way of appeal. 6 N. S. 382; 11 An. 698; 32 An. 1182; 32 An. 1092; 33 An. 923; Eouque, p. 593, No. 21.
    The judgment allowing Sutcliffe to bond in no manner interferes with the pending appeal from the judgment on the merits previously rendered. The Civil District Court is the only court to which Sutcliffe could have made application, as any such action on his part in the Supreme Court would have brought the matter for the first time before that tribunal, making it a court of original instead of appellate jurisdiction. The Civil District Court was seized of jurisdiction,, and the writs lie only when the court below has no jurisdiction. O. P. 845, et seq.

    The authorities cited by counsel do not sustain the doctrines for which they contend. These authorities are discussed in detail.
    As to the civil sheriff, the writs can not issue against him unless he be a “necessary adjunct to the proceedings against the judge.” 34 An. 653; 33 An. 794. Inasmuch as the proceedings against the judge are not well taken, those against the sheriff must fall.
    This brief contains no discussion of the points raised in relators’ petition and brief as to the respective rights of the parties to bond the sequestration, or the loss of Sutcliffe’s right by not acting within ten days, or the terms of the judgment allowing him to bond. The Civil District Court having jurisdiction in the-premises, the action of that court can not be reviewed in proceedings of this character. This court will not in such proceedings examine into the details or correctness of the judgment rendered below, otherwise its supervisory powers would be confounded with its appellate jurisdiction. 35 An. 655; 38 An. 377; 38 An. 921.
   The opinion of the court was delivered by

Breaux, J.

The testamentary executors and forced heirs of the late William Stewart are plaintiffs in a case against William W. Sutcliffe et al., in which they sued for and obtained a sequestration of a certain policy of insurance, No. 960, issued by the Mutual Life Insurance Company of New York.

The ease was tried and a final judgment was rendered by the respondent judge, which was signed on the 9th day of March, 1893, awarding to the defendants, Sutcliffe et al., the sum of $5000, with interest at 6 per cent, thereon, from the proceeds of the sequestered policy.

On the 17th day of March, 1893, the plaintiffs in that case took a suspensive appeal to this court, which is now pending for decision.

On the 20th of June, 1893, the defendant Sutcliffe applied to bond the property sequestered, to which the' defendant in rule objected on the grounds that a suspensive appeal in effect limits the jurisdiction of the court a qua to tests of the solvency of the surety, or to the sufficiency of the appeal bond; that an order to bond sequestered property, after final judgment has been rendered and a suspensive appeal therefrom perfected, is ultra the authority of the court a qua; that the defendant has only ten days within which he may exercise the right to bond; that the article of the code defining the conditions of the forthcoming bond preclude the idea that sequestei ed property having been converted into money the money can be bonded.

After a legal hearing the court issued an order authorizing the plaintiff to furnish a forthcoming bond in the sum of $5750.

The defendant Sutcliffe, after due notice, applied to this court for writs of certiorari and prohibition.

Remedy by Appeal.

The relator did not exhaust his remedy before applying for these writs.

He had a right of appeal, which he did not choose to exercise. DeBaillon vs. Ponsony, 5 N. S. 42; State ex rel. Taylor vs. Judge, 26 An. 65; State ex rel. Sweet vs. Judge, 35 An. 515; State ex rel. Roth vs. Judge, 37 An. 846.

The relator is therefore without right to the writ. State ex rel. Chamber vs. Kruttschnitt, Judge ad hoc, 44 An. 567; State ex rel. Street vs. Rightor, Judge, 35 An. 515; State ex rel. Weber et al. vs. Skinner, Judge, 32 An. 1092; State ex rel. Monroe, 33 An. 923; State ex rel. Hernandez vs. Monroe, 33 An. 923.

Defendant’s Right to Bond.

Moreover, waiving this view of. the case and conceding that the issues are before us on appeal, the result is the same.

The plaintiff not having availed himself of the right to bond the property after ten days subsequent to the sequestration had elapsed, the defendant was not absolutely precluded from all right to furnish a forthcoming bond.

The law authorizes the plaintiff to bond if defendant fails to bond the property within ten days.

It does not exclude the defendant from bonding when the plaintiff does not choose to exercise the right after the ten days have elapsed.

Jurisdiction.

A suspensive appeal from a final judgment and the filing of the appeal bond exhausts the jurisdiction of the court in all matters appertaining to the appeal, save questions relating to the sufficiency and solvency of the appeal bond.

• The effect of the appeal, however, does not divest the court of jurisdiction to issue an order authorizing a forthcoming bond, and thereby restore the property to commerce and to use.

This court has no authority to issue such an order; only the court of original jurisdiction has the authority to issue such an order.

The right to bond would be in abeyance during the appeal if the court a qua had no jurisdiction.

There would be a contradiction in terms.

In one case the right to bond is declared to exist throughout the trial.

In the other it would be held in suspense on appeal.

The law granting the right to furnish a forthcoming bond does not lay down any such limitations.

The rules regarding jurisdiction apply generally to the conservatory writs.

In case of the State ex rel. Leon Gerson vs. Richardson, Judge, 37 An. 261 (a case in which a writ of attachment was issued), the court held that it was possible to exercise the right to bond in every stage of the suit,” and no exception is suggested because of an appeal.

In that case it was also decided that the proceeds of the property takes its place and is subject to the right to bond.

The relator directs our attention to the following cases: Smelser vs. Blanchard, 15 An. 254; State ex rel. Graham, Auditor, vs. Judge, 24 An. 598; State ex rel. Dubuclet vs. Judge, 24 An. 600; State ex rel. Mahan vs. Judge, 25 An. 666; State ex rel. Gourgotte vs. Porter, 27 An. 431.

In the first case a suspensive appeal was taken from an order on a rule against the executrix to sell property for the payment of debts.

Nevertheless, pending the appeal, the clerk issued a commission to sell.

'The sale of the property was an issue ‘on appeal, which appeal superseded the power of the District Oourt to sell. The question involved was not remote from the issues, but one of the issues presented on appeal. In the second ease it was announced that when an appeal has once been taken, the consent of the parties is ineffectual to dismiss it without the action of the court.

In the third case, that of Dubuelet relator, the court held that after an appeal had been granted, the court a qua is without jurisdiction to pass upon the question whether the appeal is a nullity. Only the appellate court could pass upon the validity of the appeal.

In the fourth case, Mahan relator, the lower court assumed to sell property, the sale of which had been enjoined. The property was actually under a seizure the illegality of which was urged on appeal.

In the last case to which our attention is invited, 27 An. 431, the relator had furnished a release bond.

Without notice to him, the court a qua declared the bond not solvent and the plaintiff was permitted to bond the property.

From the last order ousting him from his possession the relator appealed.

Notwithstanding the appeal the plaintiff and appellee persisted in taking and withholding the property.

The right of the parties to bond was the issue of the case, and while pending on appeal it was ordered that the possession of the property should remain with the party who had furnished the first release bond. He was appellant.

The sum and substance of all these decisions referred to in sup - port of relators’ application is that an inferior court has no authority over any of the issues pending on appeal.

In the case at bar there is no possibility of interference by accepting a bond of release; that right — that is, the right of bonding — is not at all involved on appeal in the case at bar.

Whether the property is bonded or not bonded is of no consequence in passing upon the questions on appeal.

Neither party can thereby gain an advantage in the determination of the issues.

For reasons assigned, the provisional orders heretofore granted are rescinded and the writs asked for refused at relators’ costs.


author: Parlange, J.

text:
    No. 11,370.
    The State of Louisiana vs. Thomas Carter.
    In. a prosecution for murder, the defendant will not be allowed to show the dangerous character of the deceased or threats by him unless a hostile demonstration by the deceased has first been proven.
    APPEAL from the Twelfth District Court, Parish of Calcasieu. 'Fournet, J.

      E. D. Miller, District Attorney, for the State, Appellee.

      Wesley O. McDonald for Defendant and Appellant.
   The opinion of the court was delivered by

Parlange, J.

The defendant was indicted for the murder of one John Williams. He was tried by a jury and found guilty without capital punishment. He has been sentenced to imprisonment for life in the State penitentiary and he has appealed.

The facts of this case, as shown by the bills of exception, are as follows:

The defendant and John Williams had an altercation, during which the defendant said that if Williams did not pay him 25 cents he would knock Williams’ head off. They then played at dice until the defendant had lost his stake. Defendant then went to a house, one hundred yards distant, to procure a Winchester rifle. He stated to a woman ■who was in the house that he wanted the rifle to kill a hawk. The defendant returned with the rifle to the place where Williams was, some thirty or forty minutes having elapsed since the defendant had left Williams, and when the defendant came within twenty feet of Williams he shot the latter in the back, killing him without warning, and while the latter was on his knees playing at dice. The judge a quo certifies that there was no hostile demonstration by Williams against the defendant and that while Williams did hold an axe during the time of the altercation first mentioned he made no attempt to strike with it. The finding of the judge a quo on this point is not open to review by us in this case.

The defendant complains that he was not permitted to offer evidence to show that Williams had made threats against his life. He further complains that he was not allowed to show the dangerous character of the deceased; and that the deceased had murdered a man in Alabama and another in Slidell, La., and was a fugitive from justice. This evidence was offered by the defendant in mitigation of the of-fence.

Under the settled jurisprudence of this State, a defendant in a prosecution for murder will not be allowed to offer proof as to the dangerous character of the person whom he is charged with having murdered, unless a hostile demonstration by the deceased against the defendant is first proven. The same rule applies to threats. Nor in this case was the offered testimony admissible for the purpose of mitigating the offence. In State vs. Robertson, 30 An. 340, this court held that in a trial for murder, evidence as to the dangerous character of the deceased can not be admitted even in mitigation, unless the defendant first shows that he was attacked by the deceased and was aware of the latter’s character.

The instant case does not contain a single element of self-defence, nor any fact upon which defendant could in law claim a mitigation of the offence charged. He has escaped the extreme penalty of the law. No injury has resulted to him in law from the exclusion of the proffered testimony and without injury shown, this court will not disturb the verdicts of juries in criminal cases.

The defendant further complains that after he had shown by a witness that defendant’s general reputation for peace and good order was good, he was not allowed to elicit from the witness an answer to the following question: “What was the disposition of the defendant; was it that of a man who would seek a difficulty or that of a man who would avoid a difficulty ?” The counsel for the State raised the objection that the question was leading and that by it the opinion of the witness was sought to be elicited; the objection was sustained by the court.

' Strictly speaking, the question was leading. State vs. Johnson,' 29 An. 717. The defendant’s counsel might have framed his question in an unobjectionable form. The witness had already testified-that the defendant’s general reputation was good for peace and good order, and the defendant had the full benefit of that testimony. Under the facts of this case, we do not consider that the defendant was injured by the refusal of the trial judge to allow the question to be answered.

Defendant’s last complaint is that while he was on the witness stand testifying in his own behalf, he was not allowed to answer the question: “ Why he had killed the deceased,” propounded to him by his own counsel.

The trial judge states that the defendant had just testified at length how and under what circumstances he had killed the deceased' and that “the question was an attempt to admit evidence of previous threats, when no hostile overt act had been shown on the part of the deceased against the defendant at the time of the killing.”

Defendant’s counsel urges in his brief that the trial judge could not know, in advance of the answer, what the object of the question was1But the counsel does not state what his object was, nor do we understand him as denying that the trial judge was correct in ascribing, as the motive for the question, a purpose to introduce proof of previous threats, which proof the trial judge had already excluded. If the trial judge was in error regarding the purpose of the question) defendant’s counsel should have stated what the true purpose was, and if that purpose had proven to be lawful we are to presume that the trial judge would have allowed the question to be propounded and answered. Under the facts and circumstances of this case, we can not surmise what other purpose defendant’s counsel could have had, than to elicit statements as to previous threats by Williams and-as to the character of Williams. The conclusion is almost irresistible, when we consider that the defendant’s counsel did not disclose his purpose at the trial and that he is still silent in this court as to that purpose. If the object was to elicit the testimony which the trial judge had already ruled out, the question was evidently improper.

If the purpose was to show the motive, although no such claim is made, it seems clear that the defendant intended to testify that he was moved to do the killing by threats of Williams and by knowledge of Williams’ character. Such testimony was inadmissible under the ruling of the trial judge and the facts and circumstances of this case, as coming from witnesses other than the defendant; it was equally inadmissible as coming from the defendant himself. In this regard, he was on the same footing as any other witness. But it is not for this court to conjecture as to the purpose for which the question was asked. It was for the defendant to show the purpose and that he suffered injury by the exclusion. He has done neither.

We find no error entitling the defendant to a reversal of the judgment.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 11,325.
    Dr. Henry De Mahy vs. Morgan’s Louisiana & Texas Railroad and Steamship Company.
    The locomotive of a stationary train at Oade, one of the stations of the defendant company, having been detached, returned shortly after with freight cars, which the employes of the company coupled to those which had been left standing on a side track. The coupling caused a considerable jolt and moving of the cars, which, under ordinary circumstances, would not have been dangerous to grown persons standing upon the platform of the passenger coach. On the particular occasion a child of 2 years and 11 months was standing upon the platform. The jar caused it to be thrown down and to fall between the opening between two cars. The mother, a passenger, who was inside the coach, ran out, jumped to the ground, and thrusting her arm under the car saved the child, but in so doing her own arm was caught under one of the wheels and badly broken. The present suit is for damages for her injuries. The action is grounded upon the charge that the defendant was guilty of gross and wanton negligence in not having built a station house at Oade station, and upon a charge of negligence on the part of the officers and employes of the company in not having notified the passengers of the approach of the coupling cars. The conductor had, in a tone loud enough to be heard, told passengers to keep their seats, but he had not specially warned them not to go upon the platform, nor did he give them notice that the ears were about to be coupled.

      Held — That the failure of the company to build a station house was a fact too remote to furnish a ground of action in this case. It was not the proximate cause of the accident; that the accident was due solely to the fact that a child of such tender years was standing where she should not have been, upon the platform of the coach; that but for such exceptional facts, which the conductor could not reasonably be expected to have anticipated, neither the coupling of the cars nor a position on the platform would have been attended with danger; that the coupling was such as is habitually made at Cade station whilst waiting the arrival of the train on the main road; that the employés were at their respective posts for such work, and that the concussion from the coupling was not greater than was usual, nor unreasonably violent; that however deplorable the accident the defendant can not be legally held responsible for it under the circumstances.
    2.The declaration of the person injured, made at the moment of the accident, that she alone was to blame for it, should have been permitted to have been proved as part of the res gestee.

    APPEAL from the Nineteenth District Court, Parish of St. Martin. Voorlvies, J.

      G. H. Monton and G. DeBaillon for Plaintiff and Appellee.
    D. Gaffery & Son and Jas. E. Monion for Defendant and Appellant:
    1. In an action against a common carrier for personal injuries received in an accident charged to have been the result of defendant’s negligence, the burden of proof is upon the plaintiff to show the negligence of the defendant, and the want of contributory negligence in himself. 40 An. 786; 31 An. 49; 30 An. 15; Rorer on Railroads, 531; 30 Md. 47; 46 Barbour, 529.
    2. In such actions the decisions of the Federal courts and of the courts of the several States are good authority.
    3. A contract of carriage entered into by an individual with a common carrier terminates upon the delivery of the passenger at his destination.
    4. A sufficient time having elapsed for a passenger delivered at his destination to leave the railway premises, the contractual relations are entirely at an end and the passenger is a stranger to the railroad. A. & E. Ency. of Baw, p. 744, No. 10.
    5. A railroad owes no duty of providing a waiting room for strangers.
    6. Even where the contractual relations are yet existing and a passenger injured while occupying a coach as a waiting room complains that had the railroad provided a regular waiting room he would have been therein and so escaped injury, the cause alleged is too remote to admit of a recovery. Royston vs. Illinois Central R. R. Co., Southern Reporter, p. 320.
    7. It is not a legal duty on the part of railway companies to establish passenger depots at every station on their roads, unless the freight and passenger traffic at said stations is important enough to require it.
    8. The law only requires safe and comfortable appliances and reasonable accommodations to be furnished for the traveling public at stations important enough to require it.
    9. Where a parent sues for injuries to himself or herself from an accident to his or her child, in which accident the parent also suffers injury, no recovery can be had by the parent when it is shown that the parent’s negiigence was the proximate cause of the accident, although defendant may likewise have been in fault or been negligent.
    10. Where plaintiff’s wife permitted her child to stay upon the platform of a car, and the child was thrown from the platform, and the mother was injured in attempting to rescue it, the plaintiff can not recover for the injuries of the wife because of the contributory negligence of the wife in permitting the child to run upon the platform. Southern Reporter, p. 872; 21 Atlantic Reporter, p. 878.
    11. The declarations of the plaintiff and his wife concerning the accident, exonerating defendant from fault, are strong evidence against them. Olivier vs. R. R. Go., 43 An. 804.
    12. Unless the circumstances of the case show malice, wantonness, oppression or violence on the part of defendant, punitive or exemplary damages are not recoverable.
   The opinion of the court was delivered by

Nicholls, O. J.

Dr. Henry De Mahy, suing for himself and for his-wife, Cecilia De Mahy, and also in his capacity as father of his minor child, Tullía De Mahy, and for the separate use, benefit and advantage of his said minor child,” represents in the petition which he filed in this case that on or about the 3d of June, 1892, petitioner’s wife with her child Tullia, a little girl then aged two years and eleven months, at St. Martinsville, in the parish of St. Martin, took passage on, and with the said child got on the regular passenger train of the branch railroad of the Morgan Louisiana & Texas Railroad and Steamship Company, running to Cade, a regular station on the main road or track of said company in the parish of St. Martin; that the fare from St. Martinsville to said station at Cade was paid. That the motive, or purpose, or business the said Mrs. De Mahy had to take passage on said train of said branch road and go to said Cade station was to meet and receive there her sister, whom she expected, knowing that she was coming from New Orleans on that day on the regular passenger train of said railroad company to Cade station, there to take the train of the aforesaid branch road of said company and come back with her to St. Martinsville, where the said sister was coming on a visit to petitioner’s family. That the defendant is a corporation created by the General Assembly of the State of Louisiana, and that the branch road from St. Martinsville to the station at Cade, where it makes connection with the main line or track of the railroad of said company, belongs also to said company, and was then and is still under its control, and was then and is now run and managed by employés and officers in the service of the defendant company, and that the said company is liable and responsible for all damages resulting or growing out of any act of negligence, mismanagement of said officers and comployés or any one of them, just as much so as if said damages would result or grow out of any omission on the part of said company to do or perform any thing or act deemed necessary in law for the protection of the life and person of its passengers, and of those having business with it.

That on said 3d day of June, 1892, the said train from St. Martins-ville arrived at Cade station more than one hour before the train coming from New Orleans reached said station; that on the train and in the same coach or car in which petitioner’s wife and child were, there were also several ladies and several young children; that usually the train of said branch road running from St. Martinsville to Cade station, which is a mixed passenger and freight train, arrives there one hour before either the passenger train coming from New Orleans and going west or the train coming from Texas and going east gets at Cade station; that consequently passengers who come from St. Martinsville to said station to take one or the other of said trains or to meet and receive expected friends at said station have to wait there during a considerable time, sometimes more than one hour, and that in the meantime said passengers are told and permitted to remain in the car or coach in which they have come, for the .reason that said company has grossly and wantonly neglected to build a station house and waiting room for the accommodation of the passengers and other persons while waiting at said station the arrival of expected trains. That although it has been several years since the defendant company has established a regular station at Cade on the main line or track of the said road, where the train of their branch road, coming from said St. Martinsville, has been making connection with its main line, bringing passengers there daily, said company has grossly and wantonly neglected to build a station house or waiting room for the accommodation and safety of its lady and children passengers who have to be detained at said station awaiting the arrival of expected trains.

That on the said 3d day of June, the car or coach in which petitioner’s wife and child and the other ladies and children were, when it reached Cade station was placed on a side track or switch alongside the main track or line of said railroad and was left there to await the arrival of the passenger train coming from New Orleans and going west; that to this car or coach there was a baggage, express or smoking car attached and coupled; that after having placed the car or coach in which petitioner’s wife and child were, and the one attached and coupled to it, both were left on said side track and the locomotive was detached from said cars and taken on the main line or track, switching during a considerable time displacing and replacing freight cars; that having been thus left in said car or coach on said side track or switch, petitioner’s wife, as well as all the other ladies in the said cars, felt in a state of perfect security and safety, as much as if they had been standing in their own house; that after having been in said coach on said side track nearly one hour the children became more or less restless and commenced moving about, and petitioner’s wife, tired of remaining sitting so long, got up, and whilst standing and watching her said child, all at once the locomotive, without having been seen by petitioner’s wife and the other ladies on the said coach, got off the main track where it had been switching and was brought from behind on the said side track or switch, shoving before it two freight ears, and that in coupling said freight cars to the baggage, or express, or smoking cars to which the coach in which petitioner’s wife and child were, struck it with great force and violence, thereby shoving and pushing it with equal force and violence against the coach or car in which petitioner’s wife and child were, thereby producing and causing a violent and sudden jolt and concussion by which petitioner’s little girl Tullia, who was then standing very near to her mother, was thrown off the said coach or car; that there was neither notice or warning given of any kind of the approach of said locomotive with said freight cars on said side track or switch for the purpose of coupling as aforesaid, and that at and about that moment there was no officer or employé of said company in or about the coach in which petitioner’s wife and child were; that when petitioner’s child was thrown off said car or coach in the manner above stated, she fell between the coach or car in which she was and the express, or baggage, or smoking car thereto attached and under the latter, and that seeing her child thus precipitated under a moving car or train the mother, frantic with fear and grief at the sight of the imminent danger to which her child was exposed and moved by that motherly love which is stronger than the feeling or sentiment of self-preservation, she spontaneously sprang from the coach where she was to the assistance of her child, whom she found under the moving car or train with its head lying on or across the rail and about to be crushed by the wheels of said car, and that upon seeing which she ran her right hand and arm under said car and shoved the child further under, thereby saving the life of her child, but as the train did not stop and kept moving along her said arm was caught under the wheels and the-flesh was lacerated, the bone was broken and crushed into pieces, causing most excruciating pains and suffering; that the said child Tullía was then and there badly hurt, that she received on her right arm several very painful wounds which have left large cicatrices or sears and which have caused the bone of the forearm to be bent and disfigured; that said injuries and wounds have caused great pain and suffering to said child, for which the defendant corporation is responsible to her.

That ever since said occurrence petitioner’s wife has been confined to her bed, suffering from her wounds and bruises, needing constant medical assistance and nursing; that the injury to her right arm is permanent, and that she will never again be able to use it to do and perform any household duties, and not even to render to her young children those services which a mother owes them; that besides the injuries she has received as aforesaid on her body, and the great physical pains she suffered in consequence of the same, she has undergone and endured horrible and dreadful mental pains and sufferings, such as no one but a" mother can feel, when she saw her said child precipitated and thrown from the coach under a moving train, with its head . lying on or ■ across the rails, exposed at a second to be crushed to death. Petitioner further represented and charged; that the personal injuries to his wife and • child as aforesaid, as well as the physical pains resulting therefrom, and the mental pains and-sufferings undergone- and endured by his wife, have been caused principally by the culpable, gross and wanton neglect of the defend- - ant not to- have built at their station- at Oade a station house or waiting room for the reception and accommodation of its passengers ■ and other persons having business with it, and who have to wait there g, considerable time for the- arrival- of the expected train; and also, by the negligence of-the officers and the emyloyés of said ;company then in charge of said train to not have given proper and timely notice and warning to the persons left in the coach on the side track or switch of the coming and approach of the locomotive with its freight train for the purpose of coupling, as stated and set forth.

That his wife is about 30 years old; that in consequence of the personal actual injuries she has received as aforesaid she has ever since been most of her time confined to her bed, unable to do and perform work of any kind, or even bo superintend the household, and that her condition has been such and is such as to require medical attention and treatment and nursing daily, all of which has caused loss of time to petitioner, who is a practising physician, and considerable expenditure of money.

Petitioner avers and charges that by the fault and gross, wanton and culpable neglect of said company not to have built at Oade station a station house and a waiting room for the reception and accommodation and safety of its passengers and of other persons having business with it, and by the fault and negligence of the officers and employés in charge of the train in the manner set forth, petitioner’s wife has suffered damages in the sum of $20,000, for which the defendant is liable and responsible; that in like manner by the fault and the gross, wanton and culpable negligence of defendant, and by the fault and negligence of its officers and employés, as set forth, his child Tullía has suffered damages in the sum of $5000 for the bodily injuries received by her and the great physical pains and sufferings caused by the same, and that in his capacity of father and natural guardian of his said child he is entitled to a judgment against defendant for said amount for the separate benefit and use of his said child.

Petitioner further averred that in consequence of the injuries to his said wife and child he has suffered actual damages in expenses incurred for medical treatment and nursing of his said wife and child and in time lost in the further sum of .$1000, for which said corporation is liable and for which he is entitled to a judgment; that under the circumstances and facts of this ease, in justice, equity and' law, as well as in the interest of and for the protection of the public; the said company is amenable and liable to punitive and, exemplary damages. • • ■ , ! ' •

That, on the 3d day of June, 1892, Ben.-Durand was in the femploy of the said defendant company as conductor in charge of the train on the branch road running from St. Martinsville to Cade station, and that he is still conductor thereof, having been retained in his same position by the defendant company; that between petitioner and the said Durand there has always existed friendly relations; that the said Durand, as conductor aforesaid, early on the morning of June 4, 1892, or about that date, availing himself of those friendly relations and friendly ties, and in a whining and begging way, with tears in his eyes, exhibiting great distress and expressing great fears of losing his position, which could only be averted by complying with his request, and in order to take undue advantage of petitioner, the said Durand informed petitioner, who was not present when his wife and child were injured, that the injury to petitioner’s wife and child was purely accidental and unavoidable and was not occasioned by or through the fault or negligence of any of the employés in charge of said train, and requested, nay, insisted, that petitioner write a letter to W. F. Owen, superintendent of the defendant company, exonerating the officials in charge of said train, said letter to be transmitted by said Durand, with his report in the case, to said Owen. That when the said Durand made those statements petitioner was ignorant of the true facts of the case and petitioner had been continuously for about twelve or fourteen hours at the bedside of his wife, who was then in a very critical condition and suffering excruciating pain, besides his great anxiety for his said child, who also demanded his attention, and that petitioner was under great mental strain and anxiety consequent upon the serious injury and great sufferings of his wife and child and their then critical condition, and that while under this great mental strain and anxiety and being in full ignorance of the true facts of the case, and believing that the said Durand had not misrepresented the facts to him, petitioner did write the letter, as requested and insisted upon by Durand; that petitioner wrote said letter under a misapprehension of the facts superinduced by the false representations of Durand, who purposely and designedly misinformed petitioner and misled him as to the real facts of the case and the true situation of affairs, and that if said misrepresentations had not been made to petitioner by Durand, who was the conductor in charge of said train and in the employ of the defendant company, petitioner would not have written said letter, which was obtained from him through the false and fraudulent misrepresentations made by the conductor of said train and in the employ of the defendant company, and who petitioner had every reason to believe was fully cognizant of all the facts of the case, and who petitioner had no reason to believe would purposely and fraudulently attempt to deprive him of his rights to obtain redress for his injuries, and by one who petitioner had no reason then to mistrust. That amicable demand for redress and payment for damages for said injuries to his wife and child had been made and that the same had been refused.

In view of the premises, petitioner prayed that the defendant be cited and that after due proceedings petitioner have and recover judgment against the said company for $20,000 damages for bodily injuries and pains and suffering of his wife as alleged; and for the further sum of $1000 damages for expenses incurred for medical treatment and nursing of his said wife and child, and for loss of time and expenditures as alleged; and that in his capacity of father and natural guardian of his minor child, Tullia De Mahy, he have judgment against the defendant, and it be condemned to pay for the separate benefit and use of the said minor child the sum of $5000.

Defendant filed an exception to the effect that the plaintiff had cumulated entirely distinct and separate actions in one suit; that he, as representing his wife, sued for $25,000 damages, and as representing his child, sued in her behalf for $5000 damages; and further, that he had mingled the charges of medical attendance and loss of time of himself, for which he asked judgment for himself for $1000, in this cumulated action, thereby doubly cumulating the suit, wherefore he prayed that the same be dismissed. Upon the filing of this exception, plaintiff moved “to amend his petition and to discontinue the portion demanding damages for injuries done to and suffered by his child Tullia, and for expenses incurred for medical' attendance to said child, and for loss of time in attending to her, and to limit and restrict his action and suit against the defendant to petitioner’s demand in damages for the injuries done to and suffered by his wife, and for expenses incurred for medical attendance of his said wife as alleged in the petition.” This amendment having been allowed and made, petitioner prayed for judgment against defendant. The defendant filed an answer and a supplemental answer. In the answer it pleaded the general issue, and further answering said “that the accident which is alleged to have occasioned the injuries to plaintiff’s wife, for whom he sues in this action, was’occasioned solely through the negligence, imprudence and want of ordinary care on the part of his said wife.” In the supplemental answer defendant said “that plaintiff alleges negligence in the manner and. form as set forth in the petition. That if respondent was guilty of any negligence in the premises, the same was not the proximate cause of the accident complained of, but that said accident had for its proximate cause the negligence and imprudence of plaintiff’s wife.”

The case having been tried before a jury, a verdict was returned in favor of the plaintiff for $20,000 damages, and a judgment having been rendered against defendant in conformity thereto, the latter appealed.

Plaintiff having declared in his amended petition “ that he restricted his action against defendant to his demand in damages for the injury done to and suffered by his wife, and for expenses incurred for medical attendance to-his wife as alleged in the petition,” the issues before us for determination are those which result from the pleadings and prayer, as so narrowed and as affected by those raised by defendant's answers.

Plantiff’s demand is grounded upon the following averments:

.Petitioner further represents that the personal injuries to his wife, as well as the physical pains resulting therefrom, and the mental pains and sufferings undergone and endured by his wife, have been caused principally by the culpable, gross and wanton neglect of the Morgan Louisiana & Texas Railroad and Steamship Company not to have built at their station, at Cade, a station house or waiting ro,om for the reception and accommodation and safety of its passengers and other persons having business with said company, and who have to wait there a considerable time for the arrival of expected trains, and also by the negligence of the officers and employes of said company then in charge of said trains to not have given proper and timely notice and warning to the persons left on the coach, in the aforesaid side-track or switch,. of the coming and approach of the locomotive with its freight train for the purpose of coupling, as stated and set forth.

•Defendant meets this demand by, firstly, a general denial.of plain-, tiff’s- allegations; .secondly, by asserting that-the -accident which; isialleged to have occasioned the injuries to plaintiff’s wife;- was occasioned solely through the negligence and imprudence and want óf ordinary care on the part of his wife; and, thirdly, by a claim that if it was guilty of any negligence in the premises, the same was not the proximate cause of the accident complained of, but that said accident had for its proximate cause the negligence and imprudence' of plaintiff’s wife.

It will be observed that although the plaintiff, in his recital of the facts connected with the accident, alleges that whilst his wife and children and other ladies and children were occupying the coach on the branch train, awaitingthe arrival of that from New Orleans, the children became more or less restless and moving about, and petitioner’s wife tired of sitting so long got up, and while standing and watching her child all at once the locomotive, without having been seen by her and the other ladies on the said coach, got off the main track where it had been switching and was brought from behind, on the said side-track or switch, shoving before it two freight ears, and that in coupling the said freight cars to the baggage, or express, or smoking ears to the coach in which the ladies and children were, struck it with great force and violence, thereby shoving and pushing with equal force and violence against the coach in which they were, thereby producing and causing a violent and sudden jerk and concussion, “by which his little girl Tullia, who was then standing near to her mother, was thrown off the said coach,” he nowhere ' charges that the coupling as made on that day was as to time,. place or manner either unusual, unnecessary, improper or negligent.'

The negligence relative to the coupling of which plaintiff complains is not as to its violence, but is declared to be the failure on' the part of the officers and employés of -the road to give notice that it was about to be made.

In designating the negligence which is made the basis of the' action, that relating to the failure to construct the station house is charged as culpable, gross and wanton, whilst that’relative to the failure to give notice.is characterized simply as -negligence'without those adjectives attached.

We do not think - that under the pleadings the character of the coupling is strictly an issue.- " ' '

It may be well to say, however, that there is nothing in the record' which-would lead us: to the conclusion that the-coupling upon the' day in question was materially different from that upon other days, or that it was made with unnecessary force or shock.

The defendant company owns and operates a branch road from Oade station to the town of St. Martins. The branch was constructed about 1882. There is a freight depot at Oade, but no station house or waiting room for passengers. The custom seems to have been for passengers going to St. Martins, or coming from that place, to take or to retain seats in the passenger coach of the branch train, which usually arrived at Oade before the regular train, and there awaited its arrival. On the 3d of June, 1892, Mrs. De Mahy and her two children, one six years and the other two years and ten months old, took passage at St. Martins for Oade, where she expected to meet her sister coming from New Orleans. She was accompanied by several friends. There were a number of other ladies and children and some men upon the train as passengers. When the train reached Oade it was side-tracked, the locomotive detached and used for some time in switching freight cars which were to be and were afterward attached to it.

When the coupling was made of the locomotive and these freight cars to the coaches which had been side-tracked there resulted a very considerable jolt, which caused the smaller child of Mrs. De Mahy, who was standing on the platform of the passenger car, to be thrown down and to fall between the opening of that coach and that of a baggage or express car which was next to it. The mother, who was standing in the coach near the door, immediately ran out jumped upon the ground, and thrust her arm under the still moving cars to reach and protect the child. In so doing her arm was caught and badly broken by one of the wheels. That she was very seriously injured and suffered great pain is beyond question. In all probability she will never regain fully, if at all, the use of the arm between the elbow and the shoulder.

On the day after the accident Dr. De Mahy, the husband Of the injured lady, wrote as follows to the superintendent of the defendant:

St. Martinsville, La., June 4, 1892.

Dear Sir — Dr. Duperrier told me that you had made inquiry about the accident to my wife and child. Let it be distinctly understood that the railroad company is in no way to blame for it. Mr. B. L. Durand, I must say, one of your best officials, has no reproach to receive from anybody, and I formally exonerate him from the least censure.

Hoping this will be favorably received, I am

Yours respectfully,

Henry De Mahy, M. D.

Dr. Duperrier, the gentleman referred to in this letter, says in his testimony that he was called as a physician to the residence of Dr. De Mahy the evening of the accident, on which occasion he asked him the question: How did the accident to your wife occur? to which he answered, “I can not blame the Railroad Company, nor any of the officials of the same for the accident.”

Notwithstanding this declaration and letter this suit was instituted, plaintiff assigning as reasons for bringing it those which we have copied from the pleadings. During the trial defendant offered, but was not permitted, to prove that at the moment of the accident Mrs. De Mahy herself declared that she blamed no one but herself for the accident, and that no fault was attributable to defendant. Th declarations as part of res gestee should have been admitted.

Plaintiff claims that the accident was caused by the fault and gross, wanton and culpable negligence of the defendant in not having built a station house and waiting room for the accommodation of passengers at Oade.

We are not called on to say in this case whether defendant was or was not undár a legal duty and obligation to have built a station house, for upon the assumption that such was its duty, the failure to have done so was not the proximate cause of the injury. The case must turn upon other facts.

We have said that at the moment of the coupling the child was standing upon the platform of the passenger coach. The only witness of the plaintiff who testifies upon that subject expressly states tip at such was the case, and this is supported by a number of witnesses for the defence.

The evidence shows that the little girl had gone several times upon the platform and been brought back, and the imprudence of her being in such a position, independently of any question of coupling, was both manifest and recognized. Had she not been in this particular place she would have received no harm.

. We can not hold otherwise than that it was negligence in . the mother to have permitted a child of that tender age to have been where she was. That fact was the direct contributing cause of the falling.

This suit is not for damages for injury done to the child, but for those received by the mother, and for injuries by the mother not as the direct and immediate result of the coupling upon herself, but as the result of her going out after the jolt had taken place and she had received no personal harm therefrom and placing her arm under the car in her effort to guard and save her child. Plaintiff’s counsel contend that in doing so she was'not only not to blame, but that she showed the greatest heroism and greatest devotion. In this he is certainly correct, for the mother’s conduct both at the time and afterward was such as to command the highest admiration, but counsel is mistaken in thinking that the contributory negligence which defendant charges was in that act. What he charges as contributory negligence was the failure of the mother to have kept the child inside of the coach and to have allowed her to go upon the platform. It is most deplorable that she should have lost sight of her, but for the consequences upon herself of having done so she can not hold the defendant responsible.

Very considerable testimony was taken as to whether the conductor had notified the passengers to keep their seats and informed them of the danger of standing upon the platform. There is testimony from several witnesses to the effect that the conductor, in a tone loud enough to be heard through the car, told different passengers to keep their seats — one of the witnesses stating that Mrs. De Mahy herself was one of those to whom he addressed himself. The conductor swears that he did tell the passengers to do so, and the testimony to the contrary is purely negative, and by parties who, being engaged in conversation, were not likely to have noticed this fact. There is no testimony as to whether he warned them of any danger to result from not observing his directions, but we think there was no particular dahger to have been apprehended unless under such exceptional circumstances as occurred on this occasion (the going of so young a child upon the platform), which he could not fairly be expected to have anticipated.

The evidence shows that the employes of the company were, at the time of the coupling, at their usual respective posts for that particular work; and further shows that when the coupling took place the approach of the cars for that purpose could be seen through the baggage car by those who had not their backs turned in that direction, as seems unfortunately to have been the case with Mrs. De Mahy at that time.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment thereon rendered be annulled, avoided and reversed, and that there be judgment in favor of defendant against plaintiffs rejecting their demand and dismissing their suit with costs in both courts.

Mr. Justice Parlange takes no part.


author: Watkins, J.

text:
    No. 11,253.
    Auguste Tete vs. D. Lanaux, Executor.
    1. A person employed, eo nomine, “as a sugar broker,” but who stipulates and consents to receive an. anhual fixed salary in lieu of commissions, and agrees to effect sales of sugar and molasses that are to be consigned to his employer, and for no one else; and obliges himself to exert all his personal influence to promote the interest of his employer, and to write all letters concerning the sugar and molasses market for his employer, and to make out all account sales of sugars and molasses in the transactions made by him-is a clerk in the ordinary acceptation of the term.
    2. The leading and essential distinction between the capacity of a clerk and that of a broker is, the former hires his services, skill or industry, exclusively to another, while the latter is engaged to make bargains and contracts "between tioo or more persons in matters of trade, commerce or navigation. J
    3. Courts of justice must look at the substance and essence of contracts rather than their form.
    4. All contracts for the hire of labor, skill or industry, without any distinction, whether they can be performed by any other as by the obligor, unless there is some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee.
    5. Such a person is properly classed as a laborer within the meaning of R. 0, C. 2749, and if turned away by his employer without sufficient cause he is entitled to make claim for the whole of the salaries he would have been entitled to receive had the full term of his services arrived.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Albert Voorhies for Plaintiff and Appellant.

      Chas. F. Claiborne for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff sues for an unpaid balance of salary as due him under a written contract with the deceased, on the theory that his employment was that of a clerk, or servant, at a certain fixed annual salary of $3000, payable in monthly instalments in advance— he having been sent away before the expiration of his term of service, and without any serious grounds of complaint.

To his demand the executor interposes two defences, to-wit:

1. That prior to the time plaintiff had entered upon the discharge Of the duties imposed upon him under the stipulations of the written agreement between the parties, ap renewed on the 2d. day of July, 1892, Pierre Lanaux, obligee therein, departed this life on September 6, 1892, and that for that reason his claim is not founded in law.

2. That the existence and continuation of said contract — if it were at date of Lanaux’ death in operation, and plaintiff in the active performance thereof — depended, in fact and in law, as well as in eontempiation of the respective parties, upon both of them being in existence during its full term, and that the death of the obligee terminated said contract and put an end to the rights and obligations of both parties thereto, owing to the nature of the contract and the .physical impossibility of its execution.

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

The contract, provisions of which plaintiff seeks to enforce, is couched in the following terms, and same is reproduced as the best method of disclosing the salient points in controversy.

“ New Orleans, July 1, 1890.
“ Agreement.
“It is hereby agreed between Pierre Lanaux, party of the first part, and Auguste Tete, party of the second part, as follows, to-wit: The party of the first part hereby employs the party of the second part as a sugar broker for the period of one year, from July 1, 1890, to effect the sales of all sugars and molasses that may be consigned to him, the party of the first part; and in lieu of the usual commissions allowed on such sales, to pay the party of the second part a fixed salary of three thousand dollars ($3000), payable two hundred and fifty dollars ($250) per month. And the party of the second part, in consideration of said salary to be paid to him by the party of the first part, as aforesaid, agrees to effect such sales and to exert all his personal influence to promote the interest of said party, and to effect no sales of sugar and molasses, except those consigned to him (the party of the first part). And the said party of the second part further agrees to write all letters concerning sugar and molasses market of said party of the first part, and to make out all. account sales of sugar and molasses in all said transactions made by him for said party of the first part.
“ Signed in duplicate on the day of the month and year above written.
(Signed) “Pierre Lanaux.
“Aug. Tete.”

The parties place upon this contract two altogether different interpretations, thus introducing into this litigation the element of uncertainty that it becomes our duty to resolve. And it must be admitted that the question is not free from serious doubt, notwithstanding the lower judge held with the defendant.

The ease must depend upon the capacity in which the parties respectively covenanted that the plaintiff should act — whether as broker, clerk, or agent — the plaintiff contending that his engagement was that of a clerk, while the contention of the executor is that he was employed as a broker, or agent — different principles of law appertaining to each.

The language of the contract is, that “ the party of the first part hereby employs the party of the second part as a sugar broker for the period of one year,” etc., and if that were all the stipulation it contained on the subject there would be no difficulty in solving the issue tendered. But the contract continues as follows, viz.: “to effect sales of all sugars and molasses that may be consigned to him, party of the first part; and in lieu of the usual commissions allowed on such sales, to pay the party of the second part $3000, payable $250 per month.” And it further provides that in consideration of said salary the party of the second part “ agrees to effect such sales and to exert all his personal influence to promote the interest of said party (of the first part) and to effect no sales of sugar and molasses except those consigned to him (the party of the first part).” And what, possibly, is the most significant provision of the agreement in this respect is that it declares that “the said party of the second part, further agrees to write all letters concerning the sugar and molasses market of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions made by him for said party of the first part.” . ■

A clerk is one who hires his services to an employer at a fixed price under a stipulation to do and perfox'm some specific duty or labor which requires the exercise of skill. “The broker is he who is employed to negotiate a matter between .two parties, and who for that reason is the mandatory of both.” R. C. O. 3016.

The leading and essential difference between a clerk and a broker is that the former hires his services exclusively to one person, while the latter is employed to make bargains and contracts between other persons in matters of trade, commerce and navigation. For the services of the former there is a fixed stated salary, while for those of the latter, a compensation, commonly styled brokerage, is allowed. Story’s Agency, Sec. 26.

Putting the contract under consideration to this best, and what is' the result?

The very first stipulation of the agreement is that the obligor was to effect the sales of all sugars and molasses that may be consigned to the deceased, and no other, and for his services was to receive a stated salary. His agreement bound him to act for and represent but one party, and “to exert all his personal influence to promote the interest of said party,” and, to effect no sales of sugar and molasses except those consigned to the deceased.

He further agreed to write all letters concerning sugars and molasses * * * of said party of the first part, and to make out all account sales of sugar and molasses in all said transactions.

This analysis of the various tei-ms and provisions of the agreement clearly shows that plaintiff’s capacity was that of clerk, and not of a broker. Consequently, while it is true that the declaration of the contract is that the plaintiff was employed as a broker, eo nomine, yet it is elementary that courts of justice are bound to give legal effect to contracts according to their true intent and meaning. And it has been correctly observed by this court that “the character of a contract is to be found in the object the parties sought to accomplish, rather than in' the appellation they have given it.” Bynum vs. Armstrong, 5 N. S. 161. Also, that “the nature of an obligation depends entirely on the obligation it imports.” Louisiana State-' Bank vs. Orleans Nav. Co., 2 An. 303. Again-: “We are to look at the substance and essence of contracts rather than their form.” ■ Hutchins vs. Field, 10 La. 243.

Our conclusion being that plaintiff was a clerk of the deceased, and not a broker, the obligation of the latter was heritable and survived him, and is exigible against his executor and heirs, for the positive declaration of the code is that “ all contracts for the hire of labor, skill or industry, without any distinction, whether they can be performed by any other as by the obligor, unless there is some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee.” R. C. C. 2007.

Certainly the instant contract contains no “special agreement to the contrary,” but in the most positive terms affirms its heritable character. The learned counsel of the defendant has industriously collated in his brief a large number of French and common law authorities favoring his theory; but however strong and persuasive they may be, they must yield to the positive flat of the written law.

This is necessarily the end of the case, as there is no force in the defendant’s contention that plaintiff had not, at date of Lanaux’s death, entered upon the duties of his engagement. Lanaux was a commission merchant engaged in the sale of sugars and molasses. His first engagement with plaintiff was made on the 1st of July, 1890, for one year. It was renewed for another term on the 1st of July, 1891, and it was again renewed on the 1st of July, 1892.

The plaintiff was paid in advance his salary for the months of July, August and September, 1892, and he was at the time of Lanaux’ death (on the 6th of September, 1892) absent temporarily on a sick leave. The engagement was complete and perfect notwithstanding the sugar market did not open, fairly, until after date of Lanaux’ death. The term of his contract had run well nigh three months, when the obligee died. It was during the course of his employment that Lanaux’ death occurred, therefore the cases cited by defendant’s counsel are not in point. Trifitin vs. Locke, 16 An. 19; Word vs. Winder, 16 An. 111.

Counsel further insists that the plaintiff was not sent away by the deceased in the sense of R. O. C. 2749, but that the obligee’s death determined his services, as well as the contract. But the law dedares that the obligee’s contract in such case is heritable; and the proof discloses that after Lanaux’ death plaintiff called upon the executor and notified him that he was at his service, and that his reply was that he could return to Pass Christian, where he had been staying, and report again about the 25th of October to sell sugars and molasses under his contract.

It is, also, in proof that plaintiff returned at the time indicated to the executor’s office, and proposed to go on with his work, when he was informed that he had changed his mind and could not retain him any longer, as he did not consider his contract good.

It is evident the plaintiff was turned away without any serious ground of complaint, and before his term of service had expired, in the sense of R. O. O. 2749; and that the executor is bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

But, in deciding this case as we have, and enforcing the plaintiff’s contract in its entirety, we do not intend to establish an inflexible rule for the decision of this class of cases — the instant case being somewhat sui generis.

Art. R. O. O. 2007 — upon which the case chiefly depends — must be construed with reference to other articles of the code upon the same subject-matter, and others which furnish rules for the interpretation of agreements generally.

And following this rule, we think the provisions of the following article applicable, viz.:

However general be the terms in which a contract is couched, it extends only to those things concerning which it appears that the parties intended to contract.” R. O. O. 1959.

Pursuing this theory, we are of opinion that the evidence shows that the magnitude and character of the business transactions of the estate of the deceased rendered plaintiff’s services reasonably necessary during the whole term of his contract, and that, consequently, he is equitably as well as legally entitled to require complete performance on the part of the executor.

The amount plaintiff received for the months of July, August and September, 1892 ($750), being deducted, he is entitled to receive the balance of $2250, with legal interest from judicial demand.

The judgment rendered in defendant’s favor must be reversed, and a decree pronounced in favor of the plaintiff.

It is therefore ordered and decreed that the plaintiff and appellant do have and recover of the defendant and appellee the sum of two thousand two hundred and fifty dollars, with legal interest from judicial demand and costs.


text:
    No. 11,322.
    The State ex rel. Jacob Marx vs. Judge of Third District Court, Parish of Union, et al.
    In case a party makes application for a respite in the court of one parish, and subsequently to same being granted he permanently changes his domicil to another parish, it is competent for a creditor, complaining of his failure to comply with the award, to proceed, by rule taken in the court of first instance, to compel him to make a surrender under the insolvent law. Act 134 of 1888 amending R. C. C. 3093 is ample warrant for thus proceeding.
    ^PPLIOATION for Writ of Prohibition.

      Dawkins & Dawkins and Lazarus Moore & Lemle for the Relator.

      Everett & Thomas for the Respondent.
   The opinion of the court was delivered by

Watkins, J.

Relator alleges that about the 1st of April, 1892, while he was domiciled in the parish of Union, he filed a petition in the respondent’s court, petitioning his creditors for a respite, and that same was subsequently granted; that subsequently he removed from the parish of Union to the parish of Ouachita, and there established bis permanent domicil, to which he had intermediately removed his property and effects; that on the 23d of August, 1893, subsequent to the relator’s change of domicil, one of his creditors appeared and filed an opposition in the original respite proceedings, alleging the relator’s default and failure to make the first payment contemplated, and prayed a rule and judgment condemning him to make a surrender under the insolvent laws of the State; that he appeared and excepted to the jurisdiction of the court ratione personse, because of his domicil being in the parish of Ouachita; and same was by the court overruled, and this writ and relief applied for.

The respondent judge concedes the-facts t<? be as,stated, but denies -their, sufficiency to.justify the maintenance of the writ. -

Relator’s proceedings were predicated upon the provisions of Sec. 1 of Act 134 of 1888, amending R. O. C. 3093, which are as follows, viz.:

“And if any debtor having obtained a respite shall fail or neglect to furnish, when required by order of court, the security herein provided for * * * or shall fail or neglect to make payment to his respective creditors, according to the terms of said respite,' any creditor thereby-interested may proceed summarily against such •debtor, by rule taken in the respite proceedings, to show cause why the judgment decreeing such respite should not be vacated and annulled, and why the debtor should not forthwith make a cession of his property to his creditors.”

The precepts of that statute have been closely followed, and there has been suggested no unconstitutionality of the law, which is purely remedial in character.

It is a well settled precept of jurisprudence, as it is a well recognized principle of law, that judicial proceedings once regularly inaugurated can not be annihilated by any act of the parties to judgments and decrees then rendered.

On this question the principles announced and the authorities collated in Heirs of McGehee vs. McGehee, Administrator, 41 An. 657, are quite instructive.

There is no reason to doubt the force or applicability of the legislative act authorizing the creditor’s rule to be taken in the original probate proceedings, irrespective of- the domicil of the relator acquired in a different parish,-subsequent to their institution;-and therefore the prayer of the relator should be refused, and it is ordered and decreed that the restraining order herein granted be set aside, and a writ of prohibition refused at the relator’s cost-.