text:
    No. 9190.
    New Orleans Water-works Company vs. Joseph Oser & Co.
    "Where the plaintiff in an injunction alleges that the acts complained of will cause him an irreparable injury, and the facts set forth in the petition fully confirm such averment, the judge is without authority or discretion to dissolve the injunction on bond.
    And though the motion to dissolve denies the alleged injury and sets up matters that justify the acts enjoined, and evidence is offered to establish the same, such evidence on the trial of the motion is not admissible. It constitutes a defense to the action, and such defense and the evidence to support it must be deferred to the trial on the merits ai d oannofc be allowed at that preliminary stage of the cause.
    APPEAL from the Civil District Court for tlic Parish of Orleans. Tissot, J.

      Breaux & Hall for Plaintiff and Appellee.

      W. S. Benedict and B. K. Miller for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The defendants appeal from an order refusing to dissolve, on bond, an injunction taken out by the plaintiff against them.

The plaintiff’s petition alleges: “ That defendants are erecting and constructing and propose to operate a nuisance wharf at the foot of Robin street, in this city, and on the hank of the Mississippi river, a nuisance wharf to be used by them for the sole purpose of discharging therefrom into nuisance boats, and into the rimer adjacent thereto, night soil, frecal and stercoraceous matter; that petitioner’s pipes for drawing its supply of water for municipal distribution from the river, enter the said river within such close proximity to said nuisance wharf as to make the pollution of the supply of water for the use of the city absolutely certain, should said wharf he used as is now contemplated; that the said threatened pollution of the water is aggravated by the fact that an eddy in the river extends from the foot of said Robin street and from said nuisance wharf to petitioner’s said supply pipes, which eddy prevents the general distribution and diffusion of impurities which might fall from said wharf into the river, and which, in the operation of said wharf and boats, iwust necessarily so fall.

That the operation of said wharf a,nd boats will, if permitted, by filling the atmosphere with noxious and noisome oxlmltations and stenches disturb petitioner’s comfortable enjoyment of its works and buildings and prevent the proper use and employment thereof by its officers and employees; that such use of the said wharf would amount to a nuisance; that petitioner’s rights to pure air and the comfortable enjoyment of its said property are incidents thereto and to its chartered franchise, annexed to and parts of them, and are as sacred as its right to said property and charter; and that its threatened deprivation as aforesaid by defendants would constitute a nuisance and be such a taking of petitioner’s rights and property as no municipal or legislative action could lawfully permit without due compensation; that defendants have never been legally authorised to construct said wharf, and that the construction thereof is illegal and unauthorised and the construction itself a nuisance which petitioner is permitted to enjoin; that the construction and use aforesaid of said nuisance wharf would operate against petitioner an irreparable injury.”

The defendants sought by rule to have the injunction dissolved on bond, under the provisions of Act 307 C. P., on the following allegations: That the acts complained of by plaintiffs could not cause to them an irreparable injury, nor any injury; that the location of the nuisance wharf and boat complained of in the petition was fixed by ordinance of the city of New Orleans, after consultation between the chairman of the health committee and the superintendent of the Water-works Company; that defendants were awarded the contract for constructing said nuisance wharf by said City Council, under the authority of said ordinance by authentic act before J. D. Taylor, notary public, of date November 7, 1883.

These facts were supported by the affidavit of the chief of defendants’ firm.

On the trial of the rule, defendants offered evidence to support the allegations thereof, which were objected to upon the ground that on a motion to dissolve the injunction, upon bond or otherwise, no evidence is admissible, because for the purpose of the motion to dissolve, all of the allegations in the petition of injunction must be taken for true, and that no issue of fact, on a motion to dissolve an injunction, either by bond or otherwise, can be tried, the plaintiff in injunction having the right to have all such issues decided upon a regular trial, and if necessary by a jury.

This objection was sustained and judgment rendered dismissing the rule.

The Code of Practice, art. 307, provides that:

Whenever the act prohibited by the injunction is not such as may work an irreparable injury, the court may, in their discretion, dissolve the same, provided, the defendant execute his obligation in favor of the plaintiff * * * for such sum as the court may determine,” etc.

A carofu'l reading of the petition can leave no doubt that there is disclosed a sufficient cause for an injunction, and that the injury to be apprehended from the acts of the defendants complained of would certainly be irreparable.

And there is as little doubt that the allegations made in the motion or rule to dissolve make a direct issue with the averments of the petition. It is denied therein that there is any injury whatever, and the acts against which the injunction is directed are admitted and justified as being done under competent authority. In other words, the motion is in all essential respects an answer to the merits. To admit evidence on the issues thus raised and to try the same would be virtually a trial of the case on the merits.

We cannot conceive that there is any law to authorize this summary and perhaps final disposition'of the cause in this preliminary stage of it. The articles of the Code of Practice evidently do not justify it.

They clearly warrant the conclusion that whilst the judge is not bound by the simple averment that the injury apprehended from the acts complained of would be irreparable, as we before had occasion to state, yet, where the facts alleged and sworn to, appearing on the face of the petition, in his judgment fully justify the averment or proposition that the injury is irreparable, he is without authority to dissolve the injunction on bond — and that any denial of the injury or its character, or any and all matters that seek to justify the acts or wrongs charged, must be deferred for trial on the merits and cannot be considered at this preliminary stage of the cause and evidence considered that seeks to maintain them.

This conclusion we think is supported by ample authority. 26 A. 604; 34 A. 1181. See also, 21 A. 468; 29 A. 58.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9204.
    The State of Louisiana vs. Edward Molisse.
    In a criminal prosecution the accused has the right to object to the introduction oí a dying declaration, on the ground that when he made it the declarant did not believe that he was about to die. In support of his objection it is competent for the accused to introduce testimony tending to show that when the declaration was made the declarant was not under the sense of an impending dissolution, but that he nad hopes of recovery.
    The decision of the true condition of the deceased, as a test of the admissibility of his declaration, is within the exclusive province of the court.

      PPEAL from the Criminal District Court for the Parish Of Orleans. Bomcm, J.

      The Attorney General for the State, Appellee.

      A. A. Ker and J. Dwignecmd for Defendant, Appellant.
   The opinion of the Court was delivered by

Poché, J.

Under an indictment for murder, the defendant was convicted of manslaughter and sentenced to the penitentiary for live years.

His appeal presents the question of the admissibility of the dying declaration of the deceased, which had been taken down in writing by a magistrate.

The objection was in substance, that when the deceased made the declaration he was not under the sense of impending dissolution. The defendant offered testimony to prove that, notwithstanding his declaration in the instrument that he was about to die, the deceased did not then believe in his approaching death, and had so declared to other persons immediately before and after making the declaration. The district judge rejected the testimony and admitted the declaration.

In his reasons attached to the bill the judge says in substance, that parol testimony is not admissible to contradict the contents of a written document, and that the jury were the sole judges of the credibility of deceased in any and all the statements which he made in his declaration. He allowed the defense to question the magistrate as to the state of consciousness of the deceased at the time that he made the declaration, but restricted the examination to that witness and to that point.

We fear that our learned brother of the District Court misapprehended the scope of defendant’s objections and the purpose he had in view by the proffered testimony.

The test of the admissibility of a dying declaration is in the belief of the deceased that death is fast approaching (State vs. Trivas, 32 Ann. 1088), and that his mind and his heart are under the influence of that belief at the time that he makes the declaration.

That state of his mind is the indispensable condition of the admissibility of his declaration in evidence; and his assertion that he believes in his approaching death is not conclusive, and is not the exclusive mode of proving the real condition of his mind.

“It may be directly proved by the express language of the declarant, or be inferred from his eminent danger, or the opinions of the medical or other attendants, stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of the defendant’s mind.” Qreenleaf’s Evidence, §158.

Hence, the statements of the deceased made in answer to questions propounded to him touching his condition and his belief as to his chances of recovery ha.ve been admitted as testimony in support of the admissibility of his declaration in evidence. State vs. Trivas, 32 Ann. 1086. Where a party expressed an opinion that she should not recover, and made a declaration at that time, and afterwards, on the same day, asked a person whether she would rise again, it was hold that this showed such a hope of recovery as rendered the previous evidence inadmissible. Wharton’s Criminal Law Evidence, §671.

In this case it was therefore competent for the accused to show that, notwithstanding the expression of the deceased that he was about to die, he had spoken and acted, immediately before and after making such a statement, in a manner which indicated that he actually believed otherwise, that he thought that he was then in no immediate danger of death, and that therefore his written declaration was not in law and in fact a dying declaration.

The purpose of the proffered testimony was not to rebut the statements made by the declarant touching the res gestae, but it was intended exclusively to disprove the assertion of his belief in his fast approaching death.

The decision of that point is not within the province of the jury, but, like all questions involving the admissibility of evidence, it is of the exclusive imovince of the court, and for that reason alone it comes within the scope of our limited criminal jurisdiction. Wharton’s Evidence, §681; State vs. Trivas, 32 Ann. 3088; State vs. Daniel, 31 Ann. 95; State vs. Spencer, 30 Ann. 362.

We are, therefore, clear in our conviction that the judge should have heard the witnesses whose testimony was offered by the accused on that vital point, and that he should not have ruled on the admissibility of the dying declaration before hearing and considering their testimony; and to that end we are compelled to remand the cause. We cannot, and do not propose in this opinion, to decide the question of the admissibility of the declaration of the deceased.

It is therefore ordered and adjudged that the sentence and judgment appealed from be reversed, that the verdict of the jury be set aside, and that this cause be remanded to the District Court to be proceeded with according to law and the views herein exi>ressed

Judgment reversed.


author: Todd, J.

text:
    No. 9206.
    The State of Louisiana vs. Alfred Simien.
    An accused, will not "be entitled to a new trial on account of the absence of witnesses at the trial, though duly summoned, where it appears that no continuance or postponement was asked because of their absence and whore he consented to go to trial without them, and stated that he could not make au affidavit for a continuance on account of their nonattendance.
    The absence of the accused from the court-room while testimony is being taken on an application for an attachment for a witness, affords no ground for setting aside the verdict.
    It is not requisite to the validity of an indictment for assaulting with intent to murder that it should aver that the person assaulted “ was in the peace of the State.” Nor in such indictment is it necessary to charge that the accused was armed with a dangerous weapon or that a battery was inflicted.
    See. 792 ft. S,, under which the indictment was framed, denounces two distinct offenses ; one assaulting by wilfully shooting at, the other assaulting with intent to commit murder, etc., and an indictment will lie for either offense.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      J. N. Ogden, B. A. Martel, Chas. W. DunRoy and E. P. Veazie for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The accused was convicted of an assault with intent to commit murder, under sec. 792 of the Revised Statutes, and sentenced to imprisonment at hard labor for two years, and bas appealed.

In a motion for a new trial he complains that he was tried in the absence of two material witnesses, for whom he had caused subpoenas to issue, one of whom failed to attend on account of sickness, and the other reported not found.

It appears that, notwithstanding the non-attendance of these witnesses, he made no application for a continuance and took no bill to the judge iu ruling him to trial; and, according to the statement of the judge found in the record, he asked no postponement of the trial to afford an opportunity to procure the witnesses, but, on the contrary, expressly consented to go to trial without them, for the reason stated that he could not make the proper affidavit for a continuance.

It is evident, therefore, that his complaint in this respect, made for the ñrst time in the motion for a new trial, came too late and was prop-erlv disregarded.

H.

He assigns as error patent on the face of the record the following (quoting):

“That on the 15th of March, 1884, when testimony was being taken as to the existence or non-existence of the witness Doucet, on the application for an attachment against said witness, the minutes do not show that the accused was present in court.”

It is sufficient answer to this to say that the transcript, which is certified as containing all the proceedings had in the case, fails to show that any testimony was taken on the day mentioned on an application for an attachment for said witness. Even had it been shown, and the prisoner was absent .at the time, it was a proceeding of that character that his presence thereat was not essential. State vs. Clark, 32 Ann. 558; State vs. Somnier, 33 Ann. 237.

III.

There was a motion in arrest of judgment which set forth:

1. That the indictment did not aver that the person assaulted was “ in the peace of the State.” Such omission did not Yitiate the indictment.

Sec. 1063, R. S., declares: “ No indictment for any offense shall be insufficient for want of the averment of any matter unnecessary to be proved.” See also Bishop Cr. Pro. vol. II, sec. 504.

2. “ That the indictment does not charge the accused with being-armed with a dangerous weapon, does not describe the weapon and does not charge a battery.”

The section, under which the indictment was framed, reads: “Whoever shall assault another by willfully shooting at him or with intent to commit murder, rape or robbery, shall, on conviction, be imprisoned at hard labor not exceeding two years.”

This section evidently describes two distinct offenses or denounces two different kinds of assault — one the assaulting of another by shooting at him, and the other the assaulting with “intent to commit murder, rape or robbery.” This is apparent from the reading of the section, and the fact that the assaults are not denounced conjunctively by the word “ and,” but disjunctively by the word “ or.” See 9 Ann. 315.

The offense charged in the indictment was covered by the last clause of the section and in the very language of the statute, and hence there was no necessity for the mention or description of a weapon, or to charge a battery inflicted. It was sufficient to describe the offense in the. language of the statute. Arch. Crim. Pl. and Pr. Waterman’s Ed. 285, 286. Wharton Cr. Law, 364. 33 Ann. 312.

The motion in arrest was, therefore, properly overruled.

There are some bills of exception in the record which relate to the motion for a new trial, and the testimony taken on the trial of the motion, but from the views expressed above with respect to that proceeding, it is unnecessary to consider them.

Judgment affirmed.


author: Bermudez, C. J. Fenner, J. Todd, J.

text:
    No. 9022.
    Frank A. Grunow vs. Joseph Menge.
    A transcript of appeal should be filed, docketed and numbered in this Court, on the return day, or within the delay of grace.
    'Where a transcript of appeal, which consists of proceedings had since the taking of a sus-pensive appeal, including those for a devolutive appeal subsequently taken, the former having been dismissed, is filed here under the old number given to the transcript under the first appeal, and no new entry, by number and title of the case, on the clerk’s docket shows such filing between the return day and the last day of grace, the case will be stricken from the docket as not pending before the Court. Particularly will this be done when the last transcript thus irregularly filed is deficient and the clerk’s certificate discloses its incompleteness and does not connect it with the previous transcript.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      J. H. Spearing for Plaintiff and Appellee.

      Braughn, Buck & Dinkelspiel for Defendant and Appellant.
   On Motion to Strike the Case from Docket.

The opinion of the Court was delivered by

Bermudez, C. J.

When this case was called the appellee moved that it be stricken from the docket, on the ground :

1. That the suspensive appeal taken from the judgment was dismissed by a final decree.

2. That a proper transcript of the record of the case below, in which a devolutive appeal was subsequently obtained, returnable here on the first Monday of November last, ivas not made and filed in this Court.

3. That the appellant has not complied with the law in the bringing up of the proper transcript, etc.

The facts are the folloAviug:

A judgment having been rendered against the defendant, he took a suspensive appeal from it, returnable here on the first Monday of November, last year (1883). He afterwards filed a transcript in this Court and next took a rule in the lower court to have the order for a suspen-sive appeal rescinded and the appeal dismissed, on the ground that the surety was not good and solvent. This rule was made absolute. An application was then made to this Court for a prohibition to the lower court, which was refused; thus sustaining the ruling of the district judge.

The defendant next obtained a devolutive appeal, returnable as stated, but did not cause a full transcript of the record below to be made and to be filed hero on the return day, or within the usual delay following it. He simply caused a copy to be made of the proceedings had since the taking of the suspensive appeal, having the shape of a transcript. This document was on the return day filed, under the number under which the first transcript of the case taken up by the suspensive appeal had been filed, viz: No. 9022.

The clerk’s docket and the alphabetical index to it do not show that on the 3d, 4th, 5th and 6th of November of this year any transcript was filed in this Court under any new or current number in which Grunow is plaintiff and Menge defendant.

The certificate of the clerk attached to the copy of the supplementary proceedings does not show that, together with the transcript filed in this Court under No. 9022 of its docket, it constitutes a full and correct transcript of proceedings had, etc., in the case on which the devol-utive appeal was taken.

The appellee claims that ho could find no clue to the filing of any proceedings in this Court under the devolutive appeal, and that there is no case to be tried before this Court. ■

Clerks are required by law to keep two record books, in one of which they are directed to set down the titles of all causes depending before the Court, mentioning the date of the filing of the record and the names of the counsel employed. In the other book they must enter all the orders, judgments rendered and all the motions made. Both books are to remain open to the inspection of parties concerned and to be accompanied by au alphabetical list containing the titles of the causes. C. P. 775-8.

The clerk of this Court is required by its rules to docket cases in the order of tlieir filing. Rule III (1).

The appellee was under no obligation to bunt up case No. 9023 to ascertain whether the transcript to be made, after the devolutive appeal bad been taken, bad been filed in this Court.

That transcript, if made, should have been filed under a new number, to be entered on the docket on or after the return day or within the delay of grace. The failure to have it thus filed aud docketed must be visited on the appellant.

It is not enough for an appellant to hand a transcript to the clerk. He must see at his risk that it be- properly filed and eutered on the docket. 35 Ann. 151, Ford vs. Brooks.

The invoked authority in the Yredenburg case, 32 Ann. 561, has no application to the present matter.

No objection was made to the filing of the last transcript under the number given to the first transcript filed; and the clerk, in attesting the last transcript made, had certified that'it and certain other transcripts filed in the Supreme Court, did contain a true, correct and complete transcript of the proceedings had, etc.

In the Succession of Irwin, 33 Ann. 64, we took pains to announce that the privilege should be exercised with discretion and within reasonable limits, and, when sought, that reference should be made to the title and number of the other transcript, which otherwise would not be noticed.

In the present case complaint is made of the filing under an anterior and improper number, of the incompleteness of the transcript, and of the insufficiency of the clerk’s certificate.

The filing under the previous number is certainly irregular, and the clerk’s certificate does not connect the last transcript with the first as filed in this Court. A reference to the number of the case in the lower court does not remedy this fatal defect.

Going, however, to the length of conceding that the paper filed may be considered as properly docketed — that is, numbered and indexed in due time — the incomplete certificate of the clerk, showing its deficiencies, was enough warning to the appellant to put him on his guard, and he has failed to supply the same. It would be impossible for this Court to pass upon the merits of this controversy on this mutilated transcript.

It is therefore ordered and decreed that this case be stricken from the docket of this Court at the cost of the appellant Menge.

Fenner, J., concurs in decree.

Todd, J. and Manning, J., dissent.

Concurring Opinion.

Fenner, J.

That the second appeal was wrongly filed under the number of a former appeal does not admit of doubt. That error absolves the appellee from the penalty of not making his motion to dismiss in time, because sucli filing gave him no notice that the appeal had been brought up.

But, on the other hand, the fault of such erroneous filing is not, in my opinion, to be visited on the appellant, in absence of proof that he directed the same. It must be treated as an error of the clerk. I look at the case precisely as if the transcript had been filed as a new appeal under an independent number.

Regarding it in this Light, I find a transcript containing nothing but proceedings subsequent to the judgment appealed from, and a certificate exposing its incompleteness and making no reference to any former transcript on file in this Court, or to any other source from which the incompleteness could be supplemented.

In the Vredenburg case, 32 Ann. 5(11, we held that where a second transcript of appeal contained a certificate that it, together with other transcripts already on file here and properly identified, contained all the proceedings had, etc., in the ease, we would consider the first as part of the second transcript of appeal, and would not dismiss the appeal.

But we are now asked to go further, and, without any reference to a former transcript in the new certificate, to hunt it ñp ourselves and embody it as part of the new transcript.

This is utterly inadmissible and justified by no law, authority or practice.

Appreciating the hardship of the instant case, I am compelled to apply to it, as to all others, uniform rules.

For these reasons I concur in the decree, since it is the same, in effect, as a dismissal of the appeal.

DissbNTING- Opinion.

Todd, J.

The defendant took a suspensive appeal in this case and filed on the 8th of November, 1883, his transcript of appeal.

Subsequently thereto, the order for the appeal was rescinded by the judge of the first instance, on account of the insufficiency of the security on the appeal bond.

Thereupon, the defendant and appellant took a devolutive appeal from the judgment from which he had previously taken the suspensive appeal and filed in this court a supplemental transcript, containing the proceedings in the Lower court, under the rule to set aside the appeal for insufficiency of the bond, and the motion and order for the devolu-tive appeal. This supplemental transcript was seasonably filed and received the same number as the transcript previously brought up under the suspensive appeal. If there was any fault in the numbering of the last transcript, or in the omission of the clerk to expressly connect the supplemental transcript with the original one, it was not the fault of the appellant. But apart from this, an inspection of proceedings contained in this last transcript and an examination of the clerk’s certificate thereto, wherein he certifies that it contains the proceedings in the rule to set aside an appeal in a case hearing the same title and the same number in the district court as the one shown in the first transcript, leave not the slightest doubt that the proceedings contained into the two transcripts, refer and belong to one and the same case.

Being thus assured that we have the entire proceedings before us, I think we should try the case and not strike it from the docket.

I therefore dissent.

Manning, J. concurs in this opinion.


text:
    No. 9181.
    E. E. Dreyfous vs. M. J. Hart.
    The award of arbitrators, appointed under a submission, as arbitrators “properly so called,” rendered without fixing a day or days of meeting, or without notice of such meeting or meetings, to either party, is a nullity.
    The refusal of one of the arbitrators and of the umpire to hear and consider, testimony on contested matters, is equally fatal to the validity of the award.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Braughn, Buck & Dinkelspiel for Plaintiff and Appellee:
    A. The law favors the settlement of differences between man and man by means of arbitration and instead of retarding or keeping back just such arbitration as this it is highly favored and ought to be liberally construed. C. 0. Art. 3102; Jackson vs. Amber, 14 Johnson, N. Y. Reports, 96. *
    B. Arbitrators signing an award cannot be led to contradict his action and say he did not concur. Campbell vs. Western, 3 Pages, Reports. 124 C. C. Art. 3131.
    C. In order to make an award binding it is unnecessary for the arbitrators to give their reasons or detailed facts, all that can be asked of them is, that in their decision they finally, fairly and honestly settle the differences between the parties understanding^. Morse, on awards, p. 265, and numerous authorities there cited. Talcot &MacKibbon, etals’ 2 M., pp. 203 to 305; Porter vs. Dugat, 11 M. 247, et seq.
    D. The umpire chosen by the parties themselves, has a legal right to be constantly present at the deliberations of the arbitrators, and the decision thus made by all three of the judges, instead of two, will not vitiate, but on the contrary, ought of necessity to enhance the same. Pisher’s Digest, Yide Arbitrators, p. 386.
    E. The submission of a controversy to arbitrators implies an agreement to abide by the award, when made without express agreement otherwise. 2 Barbour if. Y. Reports, 430.

      p. Testimony of ■witnesses may be dispensed with either by the consent, actual or passive, of the parties to the submission, or by the circumstances and nature of the matters to be passed on. Morse, on Arbitration and Award, p. 143, and authorities there cited.

      Chas. S. Rice fox Defendant and Appellant:
    Any one of the following irregularities will vitiate the award of arbitrators, or of the umpire appointed to make an award in their stead, in case they do not agree :
    1. The sitting of the umpire with and taking part in the deliberations of the arbitrators, and his exercising the functions of umpire before it has'been finally determined that the arbitrators will not agree. Haven vs. "Winnisimmet, iL Allen, 381 and 386; Lyon vs. Blossom, 3 Duer, (H. Y.) 319; Morse, on Arb. and Award, pp, 241, 242, 247.
    2. The refusal of one of the arbitrators, joined by the umpire, to hear or consider testimony ; and the substitution of an estimate made by them, as an award, in lieu of an award founded on proved facts. C. C. Arts. 3112, 3113 ; C. P, 450 ; Roper vs. Magee, 10 Ann. 62 and 63; Warner vs, Collins, 135 Mass. 26.
    3. The failure and neglect — in the present case intentional — of the arbitrators and umpire to notify defendant of the time and place of the meeting of arbitrators. In addition to the last above: Penny vs. Carl., 10 Ann. 202; Abot vs. Holmes, 3 La. 331; Locke vs. Dakin, 15 La 426; Billings vs. Billings, 110 Mass. 255; Conrad vs. Massasoit Insurance Co. 4 Allen, 20 to 22; Hook vs. Philbrick, 23 H. H. 288; «Iordan vs. Hyatt, 3 Barb. (H.Y.) 275.
    4. The failure to set forth the award, with sufficient precision and minuteness, to enable the court to determine whether the arbitrators and umpire considered, or correctly rejected or allowed, the several claims mentioned in the articles of submission. McMicken vs. Picklens, 11 La. 314; C. P. 455 ; Adams vs. Adams, 8 H. H. 82
    5. The fact that the award is grossly excessive of plaintiff’s most exaggerated demand. Briggs vs. Prank, 5 Watts. (Pa.) 478.
    Arbitrators are those properly so-called, “who determine according to the strictness of the law,” and amicable compounders, who “are authorized to abate something of the strictness of the law, in favor of the natural equity.” C. C. Arts. 3109, 3110.
    The awards of arbitrators, properly so-called, are subject to revision or reversion by the court for errors of any sort, whether errors of fact or want of legal requisites to a valid award. Code of Practice, Arts. 459, 460 ; Bird vs. Laycock, 7 Ann. 171 et seq.; Davis vs. Leeds, 7 La. 476.
    An invalid award cannot be made the basis of a judgment. Donovan vs. Owen, 10 Ann. 463.
   The opinion of the Court was delivered by

Poché, J.

This litigation grows out of the following facts and incidents :

Under a contract, plaintiff tore down some old buildings on defendant’s premises, and built a new house, using therein such materials of the old buildings as could he safely used.

Differences having arisen between the parties when they came to a settlement, a suit was filed by tbe defendant to recover an amount alleged to have been overpaid to plaintiff, the builder. Ponding this, litigation, the parties agreed to submit- their differences to arbitrators “properly so-called,” with full power to ascertain the cost of the building, the cost of tearing down and removing the old buildings, and the credits to he given to Hart for the value of the materials used from the old buildings as well of the new materisls furnished by Hart, and to finally adjust the accounts between the parties.

One arbitrator was selected by each of the parties, and the submission provided for and selected an umpire to act in case of disagreement between the arbitrators.

In due course a report signed by both the arbitrators and by the umpire, was submitted, and the object of the present suit is to make their award executory.

The award reads as follows:

We, the undersigned, appointed as arbitrators and umpire in the difference between Emile E. Droyfous and M. J. Hart, relative to the cost of building Nos. 472 and 474 Camp street, make this our final report, to-wit: That the building is worth ($15,432 31) fifteen thousand, four hundred and thirty-two dollars and thirty-one cents.
“ We find credits in favor of M. J. Hart, amount to ($10,614 12) ten thousand, six hundred and fourteen dollars and twelve cents, leaving a balance due E. E. Dreyfous, ($4,818 19) four thousand, eight hundred and eighteen dollars and nineteen cents.
“All unseen work previously agreed upon is not included in this report.”

For various reasons, to be hereinafter stated and considered, the defendant objected to the award, and he has taken this appeal from a judgment condemning him to pay to plaintiff the sum of $3800.

The judgment appealed from does not in terms dispose of the award, which, however, seems to have been the groundwork of the judgment as rendered.

The district judge does not inform us of the reasons or considerations on which he predicated his moneyed judgment against the defendant in a sum different from the amount awarded by the arbitrators j and we find no evidence in the record sufficient or full enough to justify us in either affirming or reversing the judge’s, finding in favor of plaintiff, independent of the award.

Our examination must, therefore, be confined to the question of the validity of the award of the arbitrators, which is resisted by the defendant on substantially the following grounds:

1. The failure of the arbitrators and umpire to notify the defendant of the time and place of their meeting for the purpose of examining the matter submitted to them.

2. The refusal of one of the arbitrators and of the umpire to hear or consider testimony on matters contested, m the interest of the defendant, by the other arbitrator.

3. The sitting of the umpire and his taking part with the arbitrators in their deliberations before the occurrence of any disagreement between the latter.

4. The failure of the award to state with precision the various amounts of credit and debit admitted and rejected by the arbitrators and the umpire.

5. The fact that the award is grossly excessive of plaintiff’s most exaggerated demand.

As the first two objections are sufficient to invalidate the award we shall confine our examination to these two:

1. The testimony of the arbitrators and of the umpire shows conclusively that they gave no notice whatever to either of the parties of their numerous meetings for the purpose of examining the matters submitted to them.

It also appears from their testimony as well as from the tenor of their award that they conceived their duty to consist in an examination, in a measurement of dimensions, and in an evaluation of the building, when, under the submission and under the law, their duty was to ascertain the actual cost of the materials used and of the labor employed in the construction of the building and to strike the difference between the same and the amounts paid by Hart, either in money or materials furnished by Mm. Their power as arbitrators was limited to what was explained in the submission. C. C. Art. 3104.

A proper exercise of that power imposed on them the duty to determine as judges, agreeably to the strictness of the law. C. C. Art. 3110. Their first step in the accomplishment of their duty was to hear the parties. Judges cannot adjudicate or dictate on controversies without a hearing of the parties. Hence, Article 3113 of the Civil Code requires that: “The arbitrators shall appoint a time and place for examining the matter to them submitted and give notice thereof to the parties or their attorneys.” C. P. Art. 450; Penny vs. Carl, 10 Ann. 202; Hunt vs. Zuntz, 28 Ann. 502.

2. The record shows that during the proceedings, one of the arbitrators, acting in behalf of the defendant Hart, requested his associates to consider a detailed bill of lumber alleged to have been paid by Hart and used in the construction of the house. This was peremptorily and arbitrarily refused by the others who pretended that the safer way of establishing the quantity of lumber furnished by Hart was through measurements of the materials used in the building. Their bounden duty, under their oaths and under the law, was to consider the bill, and to ascertain, by testimony, what, if any, part of the lumber therein charged-had been used by plaintiff, the builder, for the purposes of the house. This was the only lawful means of establishing the amount of credits to which Hart was entitled on account of materials furnished by him. C. C. Arts. 3114, 3115.

Their plan of refusing to consider detailed bills and to test their correctness, by competent testimony, and of relying on their judgments as experts was radically wrong. It was not one of the powers conferred to them by the submission and it is not sanctioned by law.

It has been held that such a course cannot be adopted and will not be tolerated even in a court of justice. Much less will it be allowed to arbitrators, whose powers are to be strictly construed, because they are closely circumscribed in law. Spenen vs. Cullom, 36 Ann. 213.

It is, therefore, clear that both (indeed each) of the objections which we have just considered, are legally sufficient to completely invalidate the award of the arbitrators. An attempt was made by plaintiff to prove an agreement between the parties through their respective counsel, to waive their rights to notification and to the introduction of evidence before the arbitrators. But it has utterly failed.

For the reasons stated in the first part of this opinion, and owing to the absence of any recital or statement in the award showing the basis of the arbitrator’s conclusions, we have no means of ascertaining the correctness of the moneyed judgment rendered herein by the lower court, if intended to be maintained, irrespective of the award. Hence, our sole duty is to remand the cause for correct proceedings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the award or arbitrators submitted in this case be rejected and set aside as invalid and null; and that this case be remanded to the lower court for further proceedings according to law; costs of appeal to be paid by the appellee, costs below to^await a final decision.


author: Todd, J. Fenner, J.

text:
    No. 8657.
    Eager, Ellerman & Co. vs. City of New Orleans.
    Plaintiffs, the lessees of the wharves and landings, were under no obligation as such lessees to reconstruct and rebuild the levees fronting on the river and the bulkheads destroyed by a storm of extraordinary violence. And where the city contracted with said lessees independently of said lease and without reference to do said work under the lease, it must pay for it.

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

      E. H. Farrar and J. B. Eustis for Plaintiffs and Appellees.

      C. H. Buck, City Attorney, Wynne Rogers, Assistant City Attorney, and W. H. Rogers, City Attorney, for Defendant and Appellant.

      Nicholls & Carroll, Amici Curiœ.

   The opinion of the Court was delivered by

Todd, J.

The city of New Orleans is appellant from a judgment in favor of the plaintiffs for $10,993 65, for work performed by them under a contract for the rebuilding the levee and bulkheads in front of the third district of said city, destroyed by a storm on the 6th of February, 1881.

The contract was made and the work done under the following ordinance :

“Whereas, owing to the great volume and height of water now contained within the bed of the Mississippi river, and the probable increase owing to the rapid rise in the upper rivers, and the imminent danger now apparent in the third district of this city caused by the recent heavy storm to the bulkheads and along the river front,
Be it resolved, That the honorable mayor and administrators of commerce and improvements be and they are hereby authorized to contract with any party or parties lor the reirairing of such bulkheads and levees of the third district, from Esplanade street to the lower limits of the city, as are absolutely necessary.
“ The same to be performed under the supervision of the administrator of commerce according to specifications to be furnished by the city surveyor.”

There is no question as to the work being done and its value, and the correctness of the items composing the accoimt for the same; but the city resists its payment and denies liability therefor, on the ground that at the time the work was done the plaintiffs were the lessees of the wharves and landings along the river front, and under their obligation as lessees were bound to do this work without charge to the city.

The character of this storm and the destruction caused by it, and which are proper subjects for consideration in this case, will fully appear from the following evidence extracted from the record:

Mr. Pilié testifies that he inspected the damage caused by the storm on the day of its occurrence. He was asked if there was any pressing need of making the repairs; he answered: “ Yes; there was pressing need, as the river was rising then.” He was asked, “Why was that need pressing to have that work done immediately V’ He answered: “To prevent an overflow of the city.”

He testifies further that this storm was a “tremendous hurricane.”

Extracts from the signal office of the United States at New Orleans:

February 5th -Gale began at 5 a. m.; highest velocity, 52 miles at 11 a. m.; on the 6th gale ended at 1:45 p. m., 6th.

February 7th — Gale began 4:25 a. m.; highest velocity, 31 miles at 3:15 p. m.j 7th, gale ended at 4:15 p. m. same day.

“Shipping remained in port; portion of city under water; watch tower blown down; railroad tracks interrupted; bridges destroyed ; 52 miles per hour is the highest velocity on record in New Orleans’ signal office for a period of ten years.”

Brosnan, city surveyor, testifies: “ I know that the levees and bulkheads were all washed away and destroyed by the action of the water caused by the wind.” “In disconnected places the damage was fearful.” “In some places the destruction was complete; in a few places it was only partial.”

The question is, whether the plaintiffs, under their contract as lessees of the wharves, were bound to do the work of rebuilding and reconstructing the levees and bulkheads destroyed by the cause aforesaid. It is apparent from the ordinance quoted above, and the contract for the work under it, and other evidence in the record, that the city authorities did not, at the time, believe that the plaintiffs were so bound.

We have carefully examined the contract under which the wharves were leased.

The portion of it bearing more directly on the question of plaintiffs’ responsibilities in the premises will appear in the following clause, being an extract from section 12 of ordinance 3121, which, by express terms, was made a part of the contract, to wit;

“The repairs of the levee, required to be made under this ordinance, shall consist in grading the same according to the grades already established ; in covering the same hard substances, such as rock, lake or oyster shells and gravel; in keeping the seme always in good order by filling up with river sand all parts of the same which may cave in or sink beloiv the grades aforesaid; and in keeping the bulkheads on the outside of same always* in good order and condition; and whenever the batture shall form so as to require the levee to be extended, the transferree shall, on the order of the City Council, fill up such parts of the batture and build such levees as said City Council may deem necessary, as well as all new 'bulkheads."

A fair construction of this clause, aided by an examination of other portions of the entire contract, does not seem to warrant the conclusion that the lessees were under any obligation to work on the levees except with reference to keeping the wharves in repair, and that it did not impose upon them the duty of rebuildinglevees to protect the inhabitants of the city against overflow. The only levees required to be built under its terms, and the only new bulkheads to be constructed, were such as might become necessary by the forming of new batture.

We see no reason for disturbing the judgment of the District Court, and it is therefore affirmed, with costs.

Judgment affirmed.

ON REHEARING.

The record does not supply tlie evidence essential to sustain the preference granted by the judgment o rer other creditors on the revenues of the city for 1881, and the judgment is amended by annulling that portion of the judgment, without prejudice to the right of plaintiffs to assert such rank and preference on said revenues as they are entitled to under the law.

Fenner, J.

Neither in granting this rehearing nor since have we felt any doubt as to the correctness of our original opinion upon any of the points therein determined. But we omitted to consider one point, which, although urged in oral argument, had not been referred to in the briefs of counsel, and thus escaped our attention.

The judgment appealed from correctly condemns the defendant to pay the amount claimed out of the revenues of the city of New Orleans of the year 1881,” but it contains these additional words, viz.: “As of date of May 1st, 1881, the date at which said amount should have been paid; that is to say, it shall be paid out of said revenues as if an ordinance of appropriation had been made for this purpose and promulgated on May 1st, 1881, and in preference to all ordinances of appropriation passed subsequent to that date.”

The city urges that the above quoted portion of the judgment is illegal and in violation of the terms of Act No. 38 of 1879.

Plaintiffs object that the city is without interest, and consequent right, to urge this point. We cannot agree with them. It is the right and duty of the city to conform to the law in the administration of her finances and to oppose any judicial demand requiring her to violate the law.

The act 38 of 1879 requires the city to make in December of each year detailed estimates of receipts and expenditures, and declares that the adoption of these estimates shall be considered as an appropriation of the amounts therein stated for the purposes therein set forth, and also prohibits the diversion of said appropriations from the purposes stated for any cause or reason whatsoever. It further provides for subordinate specific acts of appropriation and declares that such appropriations shall be paid in the order of the adoption of the ordinances making them.

Nice questions might arise as to whether the city could affect the rank of budget creditors whose claims were ripe for payment by wrongfully refusing or postponing the passage of specific ordinances of appropriation.

Possibly plaintiffs may have suffered wrong in this respect and may be entitled to some relief.

But certainly this record is barren of the essential evidence necessary to determine or measure their rights or relief.

The city denies that plaintiffs are budget creditors'. Plaintiffs assert that they are. The budget or detailed estimates of receipts and expenditures for the year are not in evidence or found in the record.

How should we determine their dispute otherwise than by mere guess work Í

Nor does the record furnish any evidence as to the nature of the various ordinances of appropriation over which the judgment assigns a preference in favor of plaintiffs.

To affirm this portion of the judgment would be striking in the daik without knowing whom we might injure.

These are matters affecting the execution of the judgment, and in striking therefrom the objected portion we shall do so without prejudice to plaintiffs’ right to assert and enforce such rank and preference on the revenues of 1881 as the law entitles him to.

It is therefore ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be amended by striking therefrom the words as of date May 1 st, 1881, the date at which said amount should have been paid; that is to say, it shall be paid out of said revenues as if an ordinance had been made for this purpose and promulgated on May 1st, 1881, and in preference to all ordinances of appropriation passed subsequent to that date.” This amendment, however, to be without prej - udice to the right of plaintiffs to assert such rank and preference over other creditors on the revenues of 1881 as they may be entitled to under the law. And, as thus amended, that said judgment be now affirmed, plaintiffs and appellees to pay costs of this appeal.


author: Manning, J.

text:
    No. 9209.
    George K. Shotwell vs. City of New Orleans et als.
    When the City Council of New Orleans adopt the annual budget, the estimates of expenditures made therein become appropriations specifically made for the purposes >set forth and no diversion of the funds thus appropriated can bo made until all the expenditures provided for have been paid.
    If there is a surplus after such expenditures have been paid, it may be appropriated to any legitimate purpose.
    An amended budget may dispose of other revenues than those destined by the annual budget to specific purposes, but it cannot change these last so long as the expenditures provided for in the annual budget are unextinguished.
    The fact that holders o I claims provided for in the annual budget have not instituted pro_ ceedings to prevent the misappropriation of the revenues allotted to them until ordinances have been passed for the paymennt of claims under an amended budget, does not bar them from asserting their right to priority of payment before any payment to any one has been made.
    Creditors of the City may enjoin the diversion of funds that have been specifically appropriated to them. Such injunction is not within the prohibition to any court to order or enforce summary process against the City, but rather a contest between rival creditors for a fund that the City is about to pay to one to the detriment of the other.
    APPEAL from, the Civil District Court for the Parish of Orleans. Houston, J.

      Nicholls & Carroll and T. J. Semmes & Payne for Plaintiff and for Intervenors, Appellees.

      Joseph P. Hornor and Francis W. Baker, and. Wynne Rogers, Assistant City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is the owner of several claims against the City of New Orleans — one for lighting certain streets with oil in October 1882, another for firemen’s services in November and December of same year, and a third, for salary of police in the last-named month — -all of which are embraced in the budget for that year, being-parts of sums included in the estimate of expenditures and provided for therein. He alleges that in August 1882 the Council undertook to amend its budget for that year by increasing the estimate of expenditures of the Improvements and Police Departments, and by increasing the estimates of revenue, which latter he charges are fictitious and were made to afford an apparent justification for the increase"of expenditures, and that ordinances have been passed for the payment of claims under this amended budget to the prejudice of Ills claims which are provided for in the regular annual budget. He obtained an injunction forbidding suob payment until Ms claims liad been paid out of tbe revenues set apart for them. There is not enough to pay all.

There are several interventions — Klein & Co. and the Gas Company, each for over ten thousand dollars, the Firemen’s Association for forty thousand dollars, and these join the plaintiff in his demand and procured injunctions each for himself, and Strauss and Bonis intervene and contest the plaintiff’s alleged rights, being holders of claims under the amended budget.

The City answers asserting its right to amend its budget,.and avers that the ordinances of which the plaintiff complains providing for the payment of claimants under that amendment were passed in due course of administration, and that even if the plaintiff and the intervenors who join him had the right they now assert, they have lost it by their own laches in waiting until others had acquired rights on the funds.

There is thus presented the question whether the city can so amend its annual budget as to impair the rights acquired thereunder, and to provide for new claims under new estimates to the prejudice of those included in the original budget.

The Act of 1879 is very explicit. It makes the adoption by the Council of the annual budget an appropriation of the several sums therein stated to the purposes expressed, and prohibits the diversion of such sums from these purposes for any cause whatever so long as any part of the expenditure for which the appropriation was made is unpaid And then as if to emphasise what had just been said, it adds that these appropriations shall be kept sacred to the object of them until the debt is extinguished. Sess. Acts 1879, p. 58. We have heretofore remarked the absolute requirement of this statute, State ex rel. Samory v. New Orleans, 34 Ann. 474, and the budget is required to be not only a detailed statement of the revenues and of the proposed expenditures, but it must include the requisite amount for contingent expenses- Id. sec. 1.

The intention of the legislature is unmistakeable. It was to check extravagance to which all municipal bodies are prone, and therefore it required that the Council should foresee what revenues it will have and what expenditures it must make— not alone the expenditures needful for ordinary administration but for'contingencies as well. The annual budget must procede the opening of the year for which it is made, and in order to give the Council all possible time to make its estimates approach exactitude as near as may be, the actual passing of the budget is deferred to the last month of the year preceding that for which those estimates are made.. The experience of all former years — the experience of the year then passing away mil inform the Council of what will he needed, and it must provide for those needs then and there.

This will not interfere with or abridge its power to amend its budget if new and unexpected revenues are realized and new and unforeseen expenditures are needful, provided the one are made payable out of the other. But these unforeseen expenditures cannot be charged to revenues already appropriated, and cannot be paid out of them until the specific objects for which the appropriations or designations have been made are satisfied. It might be that the revenues set apart in the annual budget for particular expenditures would turn out to be larger than was estimated, or that the particular expenditures were less than the estimates, and a surplus would remain after the expenditures had been paid. In such case this surplus would be at the disposal of the Council for any legitimate purpose* but there can be no legitimate purpose to which these revenues can be applied, other than that specified in the annual budget, so long as any part of the expenditure to the payment of which they were destined is unsatisfied.

This is the imperative command of the statute when it emphatically prohibits the diversion for any cause of any sum set forth in the annual budget for a particular purpose from that purpose, and impresses the importance of that inhibition by attaching severe penalties for its infraction. Sec. 5 of the Act of 1879.

It is contended by the defendants that even if this be true, the plaintiff and the intervenors who join him are estopped from complaining by their laches and delay, inasmuch as others have in the interim acquired rights under the amended budget and the ordinances for their payment, whereas if timely action had been taken by the plaintiff and his co-complainants these other parties would have been warned against relying on the ordinances under the amended budget.

In the first place it is difficult to conceive of a more effectual warning than the Act of 1879, for when it gives to the estimates in the annual budget the effect of an appropriation making such estimates proprio vigore a destination of certain sums to specific purposes, and forbids the diversion of them to any other purposes for any cause or reason whatsoever, there is no room for doubt about the character of the claims provided for and the fixedness of their status. More emphatic language could not be used to impress this character upon them or to denote their status. Courts have not permitted tax-payers to restrain the payment of money which had been illegally voted by a town if they waited until others, had become entitled to the sum voted in reimbursement of outlays made in good faith. But in the case at bar there had been an express appropriation of stated sums for stated purposes and then an attempted user of those sums for other purposes. No one could he in good faith who relied on a diversion of funds already the property of another. So long and so far as they relied upon the appropriations in the amended budget and the revenues applicable thereto they relied on acts which the Council was competent to perform, but the moment such appropriations affected the annual budget creditors they were null. They may lawfully rely upon expected revenues from sources other than those disclosed in the annual budget, but these latter are irrevocably destined to the payment of the budgeted expenditures until they are extinguished.

The defendants pleaded the Act of 1870 in bar of the plaintiff’s right to the relief sought by him. This statute declares that no court shall have authority or jurisdiction to order or enforce any summary process against the City, the object of which is to compel the issuing of any order or warrant for the payment of any money. The purpose of that Act has been explained to be to restrict creditors to the ordinary forms in the enforcement of their demands and to protect the means of the City from seizure under execution, etc. State ex rel. Strauss v. Brown, 30 Ann. 79. And in a later case we said that while no court has jurisdiction to issue a mandamus to draw money from the City Treasury, we were not to be understood as holding that a mandamus could not lie to compel the City authorities to do other acts. State ex rel. Klein v. City, 35 Ann. 782.

So far is this suit from being a mandamus to compel the issuing of a warrant for the payment of money, it js an injunction to restrain such payment and to prevent the diversion of funds from objects to which the municipal authorities have appropriated them. It is a contest between rival creditors over a fund that the City is about to pay to one to the detriment of the other.

The lower court maintained the injunctions of the plaintiff and his co-complain ants.

Judgment affirmed.


author: Fenner, J. Pooiré, J.

text:
    No. 9249.
    The State ex rel. New Orleans Water-works Company et al. vs. Isaac Levy et al.
    Whore, upon petition, affidavit and bond, a court has issued its injunction restraining the doing of a certain act until its further orders, without other restriction as to time, the injunction operates until modified or discharged by order of the court.

      The party enjoined is not justified in disobeying tlie injunction on tbe ground that it was not authorized by tbe allegations of tbe petition. Sucb an injunction having been asked in tbe prayer of tbe petition, the question whether it was sustained by the allegations thereof was one proper and essential to be decided by the judge at the time of granting or refusing the writ, in the exercise of acknowledged jurisdiction and unquestioned power; and more error therein, even if it exist, did not authorize a disobedience of the order of the court. Such disobedience was properly punished as a contempt.
    There being no question as to the jurisdiction of the court, as to its power to issue an injunction of the kind, or as to the regularity of the proceedings, the relator is entitled to no relief under writs of prohibition and certiorari.
    PPLICATION for Prohibition and Certiorari.

      J. Ti. Beelcwibh and Farrar <& Kruttschn'M for tlie Relators.

      Jonas & Nixon for the Respondents.
   The opinion of the Court was delivered by

Fenner, J.

In the suit of Isaac Levy vs. New Orleans Water-works Company, upon petition, affidavit and bond, and in exact conformity with the prayer of said petition, on October 17, 1883, the civil district court issued a writ of injunction addressed to the New Orleans Waterworks Company, in these words:

“You are hereby enjoined and prohibited from ceasing to supply the plaintiff, Isaac Levy, with water sufficient for their business as rice millers, and from cutting off the water supply of plaintiff, Isaac Levy, and from in any manner interfering with the use by plaintiff, Isaac Levy, for the purposes of rice milling, of the water conveyed through the pipes of the New Orleans Water-works Company; and you are so to remain enjoined and prohibited until further orders of this court.”

Although the last phrase was not expressly included iu the order of the judge, it is implied in every preliminary injunction; and the clerk, in including it in the writ as issued by him doubtless followed uniform precedents, as embodied in the printed forms for such writs.

The injunction was respected until the 5th day of October, 1884, when the Water-works Company cut off Levy’s supply of water.

Thereupon, Levy took a rule for contempt against the company and its superintendent, Gardner, for their violation of the above injunction. After due, bearing and upon proceedings in all respects regular, the respondent judge made the rule for contempt absolute and punished Gardner by a fine of one dollar; further ordering the defendants to restore all matters subject of this controversy in the position in which they were previous to October 7, 1883, and to pay all costs of the contempt proceeding.

The matter before us is an application for writs of prohibition and certiorari, under which we are asked to declare the judgment upon the rule for contempt to be “null, void and of no effect, and in excess of the jurisdiction of the said civil district court."

So far as the writ of prohibition is concerned, there can bo no dispute that the lower court had complete jurisdiction over the case and that it was clothed with all necessary power to enjoin Lite acts complained of. Hence, the writ of prohibition cannot apply. State ex rel. Follett, vs. Rightor, 32 Ann. 1182; State ex rel. Behan vs. Judges, 35 Ann. 1075.

It is urged, however, that the invalidity and nullity of the judgment for contempt should be i>ronounced under the certiorari, on two grounds:

1. That the court had issued no injunction enforcing the right of Levy to a water supply beyond the current fiscal year of the Waterworks Company, which expired on October 1,1884; that the court was powerless, under the pleadings, to issue an injunction covering any further period; and that, therefore, the court had no right or power to punish them for disobedience of an injunction which had no existence in fact and in law.

2. That, under the provisions of our Code of Practice, the power of the court to punish breach of its injunction did not include the power to inflict a fine.

I.

That the coirrt did, in point of fact, issue its peremptory injunction forbidding the cutting off of Levy’s water, without any limitation as to time, except “until the further orders of this-court,” is apparent from the face of the injunction.

That no such “further orders” had been given, is not disputed.

That the injunction corresponds to the prayer of Levy’s petition and is, therefore, not ultra petitium, appears from simple inspection of the record.

That it was within the power of the court to issue such an injunction, at least upon allegations supporting such relief, cannot be controverted. The sole contention is that the allegations of Levy’s petition did not sustain or justify the broad injunction asked and granted. Nevertheless, such an injunction was prayed for; and the question whether or not it should be granted was one of which judicial determination was appropriate and essential. In determining this question, the judge did only what he was bound to do; and error therein, if any exist, raises an issue only of mistake in judgment, certainly none of lack of power. State ex rel. Marrero vs. Judge, 35 Ann. 214; State ex rel. Berthoud vs. Judge, 34 Ann. 782; State ex rel. Ins. Co. vs. Judge, 36 Ann. 316.

We may say, however, in justice to the district judge, that a careful study of the petition for injunction does not disclose any such gross discrepancy between the allegations and the prayer as is asserted by relator’s counsel. The controversy in the suit affected the rate of charge for water supply hot only for the current, but for all succeeding • years; and the judge might well have regarded the injunction restraining the cutting off of the water until settlement of the controversy as not unreasonable. Arguments based upon extravagant hypotheses of utterly irrelevant injunctions having no relation to the subject-matter of the pleadings, are fallacious in themselves and without application in this case.

We have here no question of an injunction in its inherent nature beyond the scope of judicial power, as in the Liversy case, 34 Ann. 741.

Nor is the order of a character not legally enforceable by process for contempt, as in the Hero case, 36 Ann. 352.

Therefore, those cases have no application whatever. We are not disposed to extend our interference in the delicate matter of the power of courts to maintain their own authority, beyond the limits of strict necessity.

Our rulings have been uniform that we wmuld not, unless in extraordinary cases, use our supervisory jurisdiction as a substitute for appellate powers. 34 Ann. 782; 35 Ann. 838; 32 Ann. 552; 36 Ann. 316; 35 Ann. 214.

Nothing in this case recommends it for the exercise of such exceptional power.

The injunction disobeyed was perfectly peremptory and unambiguous. It was merely interlocutory and was, by its terms and nature, subject to amendment or modification by “further orders of the court.”

If relators thought that the judge had fallen into error in extending the injunction beyond what was justified by the allegations of the petition, their proper course was clear, viz: to apply to the court for such “further orders” as they deemed appropriate. They had no right to take the law into their own hands and violate the injunction under a construction which, in whatever good faith it was adopted on their part, is certainly in the teeth of its plain and unambiguous terms, and is opposed to that placed by the judge himself on his own order.

II.

We cannot construe Art. 308 of the Code of Practice as taking away from judges the power to punish disobedience of injunctions by fine as well as imprisonment.

Article 131 had conferred this power in broad terms, saying: “The judges of the Supreme, district and parish courts have the power to punish all contempts of their authority by fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days, for each offense of that kind.”

The special provisions of Art. 308, in no manner, conflict with or restrict the power to fine in case of contempt of injunctions. It merely, in that special case, enlarges and extends the power of imprisonment by providing that “they may punish him by imprisonment not exceeding ten days, but which may be repeatedly inflicted until the pa/rty obeys the mandate of the court.” The object was not to restrain powers previously possessed, but to enlarge the power of imprisonment by giving express sanction to the repetition of the term as often as required to secure obedience.

The two articles stand together without conflict; and, under elementary principles, no repeal of the former’ can be implied.

It is, therefore, ordered that the preliminary restraining order granted herein be now annulled and that the application for writs of prohibition and eertiorae'i be denied.

Dissenting- Opinion.

Pooiré, J.

I cannot concur in the conclusions reached by the majority of the Court in this case. As the inferences which I draw from the pleadings are entirely at variance with those announced in the majority opinion, I deem it proper, in justice to relators, to give a somewhat extended recital of the proceeding, as they appear to me from the record, and which are in substance as follows :

On the 17th of October, 1883, Isaac Levy, one of the respondents herein, brought suit against the Water-works Company for the main purpose of restricting the defendant company, to rates for water supply during the ensuing year, conforming to the prices established in its charter.

He charged that for the water supply necessary to his rice-milling operations, the defendant company had exacted of him the sum of four hundred dollars for the year, which was largely in excess of the amount to which the company was legally entitled, and he prayed for judgment condemning the company to confine its charges to the rates established by law.

Alleging his willingness to pay for his water supply according to legally established rates, he charged that, unless restrained by injunction, tlie company would cut off Ms water supply “ and thus cause him irreparable injury, by entirely destroying his business, in a sum exceeding one thousand dollars.” Hence he prayed that the Water-works Company be enjoined from ceasing to supply him with water in sufficient quantities for his business of rice-milling, and from in any way interfering with him in his use of water for the purpose of rice-milling, through the pipes of the defendant company. An injunction was issued as prayed for, and was obeyed by the defendant until the 4th of October, 1884, when Levy was notified in writing by the superintendent of the company, that unless he made suitable arrangements for his water supply for the new year, beginning in October, 1884, and ending in September, 1885, his water would be cut off.

Ou the next day the water was cut off. Whereupon Levy took a rule for contempt against the company and its superintendent, for their alleged violation of the injunction issued as hereinabove set forth.

For answer the defendants in the rule disclaimed any intention of contempt for or disobedience of the authority of the court, but averred iu substance, that the injunction granted in the premises, could not extend in its effect beyond the time contemplated in Levy’s petition, which had reference only and exclusively to the water supply for the fiscal year begining on the first of October, 1883, aud ending on the 30th of September, 1884; and that therefore they were not amenable to any injunction touching the disposition of their water; their private property, over which they had perfect dominion, on the 5th of October, 1884.

Relators, in their present applications charge the invalidity and nullity of the judgment on the rule for contempt on the grounds following:

1. That the court had issued no injunction enforcing tire right of Levy to a water supply for the year 1884 to 1885; that the court was powerless, under the pleadings, to issue an injunction covering that time, and that therefore the court had no right or power to punish them for the alleged disobedience of an injunction which had no existence in fact and in law.

2. That under the provisions of our Code of Practice (article 308) the power of the court, for the enforcement of its injunction, was restricted to the imprisonment of the defendant, and did not include the power to inflict a fine.

I concur in the opinion that relators are entitled to no relief under the writ of prohibition, but I am firmly convinced that they have made a proper and a sufficient showing for the application of the writ of cer- tiorari. The object of that writ is to authorize the appellate tribunal to examine into and ascertain the validity of the proceedings complained of. C. P. 855. It can only be invoked when the matter complained of is to be decided in the last resort C. P. 857. The main purpose of the writ is to prevent a denial of justice in matters which cannot be received on appeal.

Respondents urge with great force that the suit between the Waterworks Company and Levy being appealable, none of the findings or rulings of the District Court are amenable to review by a superior tribunal by means of a certiorari or other remedial writs. From the record the answer comes that nothing in the pleadings discloses the appeal-able character of the principal suit. The matter in dispute is the difference between the sum of four hundred dollars claimed by Levy for the supply of water for the ensuing year and the amount which Levy would recognize as a legal charge. That difference may be two hundred dollars, or it may be but ten dollars. The record is absolutely barren of any information on that point. Hence, at this stage of the action it is impossible to decide whether the suit is appealable or not; and if appealable, to what court. In their answer respondents contend that the effect of their injunction cannot be restricted to one year’s supply, but must be construed, as it was intended, to cover an indefinite number of years in the future. Under that theory it might bo shown that the appeal would be to this Court,, and not to the Court of ~Ai>peals, as respondents contend for. But be that as it may, it is elementary that no appeal lies from a judgment on a rule for contempt. It was so held in this very case by the Court of Appeals for the Circuit of New Orleans on an application by these very relators for a mandamus on the district judge, with a view to coerce Mm to grant an appeal from Ms judgment on the rule.

The argument that the case being appealable the relators would find adequate relief from the judgment on the rule for contempt on appeal from the final judgment in the case, has no force in the emergency of this case.

The main issue in the cause involves the legality of the company's rates for water supply. If the rates claimed be found correct, the result would be the rejection of plaintiff’s demand and the dissolution of his injunction. If the charges are found to exceed the legal limit, the judgment would restrict the company to the limits thus ascertained, and the injunction would be maintained. In either event the correctness of the contempt judgment would not be an issue in the case, and could not be reviewed on appeal. There is no force in the suggestion that relators’ remedy would have been in obedience to the injunction as construed by Levy and his counsel. We must deal with the stubborn fact that relators did not comply with the injunction as thus construed, and that the question presented for solution is the validity of the proceedings under which they were held to be in contempt.

Before the adoption of the present Constitution the application of the writ of certiorari was of very rare occurrence.

The broad provisions of the Code of Practice were circumscribed, and in a measure paralyzed, by the constitutional limits to the jurisdiction of this Court.

Hence, in the case of the State ex rel. Geale vs. Recorder, 30 Ann. 450, our immediate predecessors found no constitutional warrant to interfere in the prosecution of the relator before the recorder, because the case was not appealable, whether viewed as a civil or as a criminal case; while they admitted that the rules of the Code, if not circumscribed by constitutional barriers, would have warranted their interference. Under the effect of article 90 of the pre sent Constitution these barriers, or obstacles, have been entirely removed. Hence, under the provisions of the Code, as amplified, and not abridged or curtailed, by our present constitutional jurisdiction, we have acted on applications for relief under that writ even in cases originating in justices of the peace courts. State ex rel. Montague vs. Coquillon, 35 Ann. 1101.

Acting under the same constitutional and legal power we enforced" the provisions of this writ in favor of relator in the recent case of the State ex rel. Andrew Hero, praying for writs of certiorm-i and habeas corpus. 36 Ann. 352. In that case the proceeding which we reviewed was an incident in the case of th Succession of Kate Townsend, which was appealable, and has been on appeal before this Court.

Eor the same reasons we have, the power to examine into the validity of the judgment under which these relators were punished for contempt.

It is too plain for argument that no court has the power to enforce an injunction which does not exist, and that no act can be committed in disobedience of an injunction which has no existence.

As already stated the relators in this case have been punished for having cut off Levy’s water supply on the 5th of October, 1884, in disobedience of an injunction held as prohibiting that act, on that day and in the manner that it was done. That effect is attributed to the injunction granted to Levy on the 17th of October, 1883, in his suit against the Water-works Company for the purpose of restricting their charges for his water supply, as above sot forth.

As the injunction was issued as prayed for, it must be measured in its extent by the allegations of plaintiff’s petition. It is elementary that no greater relief can be legally granted than is justified by the pleadings.

I transcribe in full the following as the pivotal allegations of Levy’s petition:

That the only means of obtaining sufficient supply of water for the purpose of running the steam engines necessarily used in petitioner’s business, is from the pipe and mains of the New Orleans Water-works Company; that said Water-works Company is claiming and exercising the exclusive privilege of supplying water to the inhabitants of the city of New Orleans, and that said company is obliged, by law, to supply the said inhabitants with sufficient water; - that under the charter the said Water-works Company cannot charge any higher rates than were paid to the city of New Orleans, on March 31,1877; that petitioner is ready and willing to pay to the said Water-works Company the rate paid at the aforesaid date, to the city of New Orleans, but that the said Water-works Company refuse to receive the same, and refuse to furnish water to petitioner, except upon petitioner paying a much larger sum; that said Water-works Company demand of petitioner the sum of ($400) four hundred dollars, for a water supply for the ensuing year, and refuse to furnish the petitioner any water except upon the payment of said sum, which is far in excess of the amount really due by petitioner.

“ That the said company has declared its intention to harass petitioner unless said sum so illegally exacted shall be paid; and petitioner fears that, unless restrained, the said Waterworks Company will cut off the water supply of petitioner and thus cause him irreparable injury, by entirely destroying his business, in a sum exceeding one thousand dollars.”

The mere reading of those allegations affords a real demonstration of relator’s contention that nothing was in contest between the parties but the water rates for the ensuing year; that is, the fiscal year of the company’s contracts, beginning in this instance on the first of October, 1883, and ending on the 30th of September, 1884. The proposition that the injunction prayed for could legally cover no other year, is too plain for argument. I, therefore, contend that the judge who granted the injunction did not contemplate to extend its effect and operation beyond the time which was in contest under the pleadings, and that the injunction had had its day before, and had expired on, the first day of October, 1884. I note in this connection the argument predicated on the language in the writ of injunction as issued by the clerk, wherein the defendants were to remain enjoined until the further orders of the court, thus apparently extending the limit of the injunction; but as shown above, the allegations and the prayer of the petition did not call for such relief; and the order of the judge simply directed that an injunction issue as prayed for. Hence, it is clear that the injunction as issued by the clerk did not conform to the order of the judge or to the proceeedings; and that it was in excess of the relief prayed for in this petition. Had the judge, in granting the injunction, intended to give it effect beyond the last mentioned date, his intention would have been illegal and of no effect, because that relief would not have conformed to the plain meaning of the pleadings. Hence, it follows that respondents are effectually impaled on either horn of the dilemma.

The action of the judge on the trial of the rule for contempt therefore involves him in an ¡attempt to enforce a writ of injunction which had forcibly expired in fact, or under well defined legal restrictions; or, in other words, he is placed in the attitude of punishing for contempt a party who has done an act from which he was under no legal restraint.

We have held that a party could be relieved, by a remedial writ, from the effect of an injunction illegally issued; or for tire granting which the court had no legal power. State ex rel. Liversy vs. Judge, 34 Ann. 741; State ex rel. Behan vs. Judges, 35 Ann. 1076.

We should not decline relief in the same manner to a party who is held in contempt for the violation of an alleged injunction which has no existence either in fact or in law. In such a case the act of the judge can, without too violent a presumption, be assimilated to a judgment rendered without due process, or without hearing according to law.

I respectfully submit that there is no force in the suggestion that the grievance complained of is a mere error of judgment and can be corrected by appeal only. The same objection could be made in every application for any of the remedial writs. The same reasoning could have defeated the application for similar writs which we unanimously and favorably entertained in the recent case of the State ex rel. Page vs. Bccorder, in which we prohibited the magistrate from entertaining a complaint against the relatrix because preliminary steps, required by a city ordinance, had not been complied with.

Under the foregoing views, supported in my opinion by ample authority, I conclude that the judgment rendered by the district judge is an absolute nullity and that it should have been set aside by means of the writ of certiorari.

Bermudez, C. J., concurs in this opinion.


author: BeRMüdez, C. J.

text:
    No. 9207.
    William J. Burke vs. Philip Ryan et al.
    The administration of justice requires chat the testimony of witnesses be unrestrained, by liability to litigation on account of tlieir statements in that capacity. Their declarations are protected by the occasion, and cannot serve as the foundation for a civil action when they are pertinent and material.
    Statements made by witnesses in an affidavit before a court of competent jurisdiction, in a criminal proceeding, to support a motion for a new trial, based on the averments of newly discovered evidence, are privileged if applicable, pertinent and material to the subject before the court and do not expose the witnesses to an action in damages, even when the same prove false and malicious.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J.

      Joseph Brewer and JE. T. Florcmee for Plaintiff and Appellee.

      H. N. Whittemor eand Jos. H. Spearing for Defendants and Appellants.
   The opinion of the Court was delivered by

BeRMüdez, C. J.

This is an action in damages for an alleged libel, as uttered and published by the defendants in an affidavit voluntarily made by them and filed in a criminal proceeding in which they were not connected, charging that the reputation of plaintiff for truth and veracity among the people who know him is bad, and that they would not believe him under oath.

The defendants filed several exceptions to the petition, and after the same had been overruled they answered, admitting the making of the affidavit, averring that they were justified in making the same; that they were not actuated by malice, and that the same was and is-true.

The case was tried by a jury, who returned a verdict for $750, for which a judgment was rendered, which is now brought up for review by appeal.

The record shows that the affidavit was procured by the counsel of one Myles Diskin to support a motion for a new trial, based on the averment of newly discovered evidence, in a criminal prosecution against him for murder before a court of competent jurisdiction.

It needs no elaborate reference to authorities to establish the proposition of law: that as witnesses, who appear in a court of justice, discharge a public duty; that, though they be liable to a prosecution for perjury, should they commit such, they are not responsible, in a civil action, for any reflection thrown out in delivering their testimony, or for anything said or published by them in the course of a judicial proceeding, even if the statement be false, malicious and without probable cause. There is put this qualification, however: that statements thus made, in the course of an action, must be pertinent and material to the issue. Starkie on Slander, p. 242-254; Townshend on Libel and Slander, §209, 223, 354-5 (note); 2 Addison on Torts, §1092 p. 933-5 ; Odgers on Slander, p. 186-192; 121 Mass. 393-399; 3 Metcalfe, 193.

The authorities are also to the effect that every affidavit sworn to in the course of a judicial proceeding before a court of competent jurisdiction is absolutely privileged and no action lies therefor, however false and malicious may be the statement therein contained. Odgers, p. 191-2; Townshend, §223, 354; 18 Common Bench Rep. 126-146 (86 E. C. L. R.); 4 Comstock, 91; 2 Sanf. 195; 14 West Yirg. R. p. 71 et seq.; also, 6 N. S. 477, 480, and 21 Ann. 376.

There can be no dispute that Diskin, who had been convicted before a competent court, had a right to move for a new trial as he did, and to support his motion as the law and practice in such cases authorize.

That motion is based on the averment of newly discovered evidence, of surprise, and on other grounds. It is admitted by the petition in this case that the affidavit in question was made “to support” that motion.

In criminal cases it is the recognized and sanctioned practice to support such motions by affidamits; so much so that it was up to quite recently a mooted question whether affidamits were not the only evidence to be adduced, and whether witnesses who were ready to make sucli affidamits could be heard at all in open court in support of such motion. Waterman’s Digest, p. 459; 31 Ann. 718; 34 Ann. 346. In State vs. Hyland, 36 Ann. 97, this Court sustained that affidavits could be filed or witnesses heard.

The evidence (if it need be consulted to arrive at an unquestionably safe conclusion in the determination of the case) is far from establishing that the defendants voluntarily appeared and filed the affidavit. It shows that when they were first called upon by the counsel for the accused they were reluctant to speak; that it is only after they had been subsequently threatened with the compulsory process of the court that they went to court and gave the testimony before the clerk as it appears in the affidavit.

They did not file the deposition at all. It was kept by the counsel of the accused and filed by him in behalf of his client “ to support,” as the petition herein charges, the motion for a new trial.

It further appears that the opinion expressed by the defendants in their affidavit was not unwarranted, as witnesses heard on the trial have testified to the same effect.

The administration of justice requires that the testimony of witnesses be unrestrained by liability to litigation on account of their statements in that capacity. The declarations which they make are protected by the occasion and cannot serve as the foundation for a civil action.

It would therefore appear that, as the affida/vit was legal evidence, which the accused had a right to procure and was bound to adduce and to use; as the statements therein were applicable, pertinent and material to the issue raised by the motion for a new trial; as the court was of competent jurisdiction — the witnesses who testified in the-case before the clerk in that form cannot be sued in a civil action for any matter therein sworn to by them.

Stress is laid on the ruling in 28 Ann. 435. Without attacking or justifying what was then said or determined, it suffices to observe that the averments in the petition there materially differ from those in the present case; that the affida/vit, made the foundation of the suit and charged against, was unauthorized by law (C. P. 561) in a civil case, which it was. Besides, it was not pertinent and not material. The ruling was based exclusively on the face of the allegations of the petition, which were, on the exception of “ no cause of action,” taken as true.

It is therefore ordered and decreed that the verdict of the jury be quashed and set aside; that the judgment thereon and appealed from be annulled and reversed, and that judgment be and now is rendered in favor of the defendants, with costs in both courts'.