author: Pociié, J.

text:
    No. 1143.
    Police Jury, Parish of Ouachita, vs. Mayor and City Council of Monroe, et al.
    Police juries, like all other corporations created under the laws of Louisiana, are artificial beings, who can act only in the mode prescribed by the law creating thorn.
    !No officer of a police jury can legally bind or stand in judgment for the corporation without, special authorization.
    Parol testimony is inadmissible in proof of such authorization, as police juries can act only by ordinances or resolutions.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Potts & Hudson for Plaintiff and Appellee.

      Talbot Stillman for Defendants and Appellants.
   The opinion of the Court was delivered by

Pociié, J.

This suit is brought by the president, on behalf of the-police jury, for the purpose of enjoining the city council of Monroe, and other parties designated as “The Business Men’s Association,”' from usurping the exclusive power and privilege of the police jury of establishing and regulating public ferries within the parish, and for damages occasioned by the defendants by means of a free public ferry which they have established on the Ouachita river opposite Monroe.

After filing a peremptory exception of no cause of action, winch was overruled, the defendants set up a- general denial, followed by several special defences.

The judgment appealed from was in favor of the city council of-Monroe, and against the other defendants, perpetuating the injunction and condemning them to damages in the. sum of two hundred and fifty dollars.

On appeal the defendants composing the “Business Men's Association” assign as error that the president of the police jury is without right or warrant in law to stand in judgment for the parish of Ouachita. His counsel replies that the defence comes too late and that it should have heen pleaded in limine.

The objection is not levelled at the capacity of the president, hut at the latter’s authority to stand in judgment for the police jury.

The general denial put at issue the allegation in plaintiff’s petition that he was specially authorized to institute this suit in the name and on behalf of the police jury, hence there was no cause for an exception in limine, but if on trial the alleged authority was not proved it is clear on reason as well as authority that the omission can be invoked as a defence by an assignment of errors on appeal. Flower vs. O’Connor, 7 La. 196; Notrebe vs. McKinney, 6 Rob. 13; Hyde et al. vs. Brashear, 19 La. 402; Brunette vs. New Orleans. 14 Ann. 120.

Police juries, like all other corporations created under our laws, are artificial beings or persons, who can act only in the mode prescribed, by the law creating them, or in the manner specified in their organic-law or character. Bright vs. Metairie Cemetery Association, 33 Ann. 58, and authorities therein cited.

We know of no law, and we have been referred to none, which vests tile general power in the president of the police jury to act for, to bind or represent the body in any contract or judicial proceedings without special authority thereto from the corporation.

But the contrary doctrine flows from the very nature of the powers- and duties conferred on' and required of such corporations by the laws creating them.

No officer of such corporations can, without special authority, legally represent the body before the courts or stand in judgment for the same. Helluin vs. Maurin, 8 La. 111; Capmartin vs. Police Jury, 19 Ann. 448.

A suit instituted by the president, in behalf of the police jury, without special authority thereto, could create no legal effects binding on the corporation, and the judgment rendered therein could not be set as res judicata against the corporation.

It follows, therefore, that in the instant case, in the absence of proof óf legal authority in the president to stand in judgment for the police jury, the judgment rendered below against these defendants would be no bar to a future action by tlie parish against the same parties and for the same cause of action.

This conclusion seems to be conceded by plaintiff’s counsel, for in his petition he distinctly alleges that the president of the police jury -“is specially authorized to institute this suit;” but the record discloses that he failed to make even an attempt to prove the authorization.

In his oral argument he referred as proof of sueh authorization, to the affidavit of plaintiff in support of the injunction prayed for, but be could not have been serious in sueh a contention.

Police juries act only by ordinances or resolutions, and no parol testimony would be admissible in proof of either.

'These considerations lead to a judgment of non-suit against plaintiff.

It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected and the action dismissed as in case of non-suit at his costs in both courts.


source: Caselaw Access Project

author: Ebnner, J.

license: Public Domain

text:
    No. 1145.
    The State of Louisiana vs. Tobe Oliver.
    The judgment appealed from sustained a motion in arrest on the ground of defect in the verdict, and remanded the prisoner to custody to await a new trial. The accused, contending that the legal effect of sustaining the motion in arrest, on the ground stated, was to terminate the case and to entitle him to a discharge, and thus to make it a final judgment, prosecutes this appeal to correct the alleged error in remanding him to custody.
    He is entitled to have the question passed on.
    There was no error in the action of the judge a quo. The defect in the verdict was that, being special, it found accused guilty of no crime denounced by law, and it thus falls under the authority of Foster’s case, 36 Ann. 857, and Burdon’s case, 38 Ann., iu both of which the verdict was set aside and prisoner remanded lor new trial.
    The case is different from those of Day, 37 Ann. 785, and Murdock, 35 Ann. 728, where the verdicts were not defective in form or substance, but were'only set aside because not warranted by the indictment.
    Reasons given for the distinction.
    APPEAL from the Second District Court, Parish of Webster. Drew, J.

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

      Watkins c& Watkins for Defendant and Appellant.
   The opiniou of the Court was delivered by

Ebnner, J.

Defendant was tried under an indictment charging that he did “wilfully, feloniously and of malice aforethought shoot Frank .Key, with intent him, then and there to kill and murder,” etc.

The indictment is, in every respect, properly framed, as a charge of the offense denounced by Sec. 791 of the Revised Statutes.

After due trial, the jury rendered the following verdict: “We the jury find the prisoner guilty of shooting with attempt to kill and ask for him the mercy of the court.”

Defendant moved for a new trial on several grounds, and also filed a motion in arrest of judgment on the ground that “the verdict is not responsive to the indictment, and the variance between the two is fatal and the accused should be finally discharged as in effect acquitted.”

The two motions were tried together, and judgment was rendered as follows: “By reason of the law and the failure of the jury to find a legal verdict, it is ordered, adjudged and decreed that judgment be ■arrested, the verdict of the jury set aside, and the defendant remanded to the custody of the sheriff for a new trial.”

From this judgment the defendant appeals, claiming that the effect •of the judgment sustaining the motion in arrest of judgment was to terminate the prosecution and to require the discharge of the accused! •and the qualification thereof remanding him to custody for a new trial ■was erroneous and illegal.

The attorney for the State moves to dismiss the appeal on the ground that, in criminal cases, appeals only lie from final judgments, and that this is not such a judgment. He cites Rev. Stat. sec. 1001; 37 Ann. 62; 33 Ann. 1228; 15 Ann. 347; 12 Ann. 390; 9 Ann. 69, 157; 8 Rob. 583.

Undoubtedly it is true that criminal appeals only lie from final judgments; but the contention of defendant is that this judgment is, in its nature and legal effect, final; and that the judge has committed error in qualifying it and thereby denying its effect as a final judgment.

Under the peculiar circumstances we think the appeal should be maintained and the question passed upon; siuce, if the nature of the judgment rendered be such as to terminate the prosecution and require the discharge of the prisoner, it is intolerable that he should be held in custody and subjected to a new trial and judgment therein, before ■such an error could be corrected.

On the merits, however, we think the judge did not err in his ruling.

The defect of the verdict is that it finds the prisoner guilty of no crime denounced by law. It falls directly under the authority of State vs Foster, 36 Ann. 857, and State vs. Burdon, 38 Ann.—not yet reported — in both of which cases, after setting' aside the verdict, we remanded them for new trial.

This course is in strict accord with the authorities. Thus Mr. Bishop-says: “ There ought never to be a defective verdict. It tlie jury bring, in a defective verdict, it is in the power equally of the piisoner and of the prosecuting attorney to have it set right; and suppose the prisoner chooses not to interfere, and suffers a defective verdict to bo entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he, by thus failing to interpose, waives his. objection to being put a second time in jeopardy for the same offense. In all such cases, therefore, the verdict is simply set aside as a nullity,, and a new trial is ordered.” 1 Bishop Cr. Proc. § 1016, and numerous cases there cited.

The cases of Day, 37 Ann. 785, Murdock, 35 Ann. 729, and Pratt, 10 Ann. 191, were of a different character. In those cases the verdicts were not defective in form or substance. They were sufficient verdicts for crimes denounced by law; and were only set aside because not warranted by tbe indictments. The defendants could not have objected, to the recordation of such verdicts and the implied waiver of second jeopardy did not arise. Their only recourse was by motion in arrest after verdict.

We tliiuk tbe judge a quo acted in full accordance with law.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1144.
    I. N. Glover vs. J. H. M. Taylor.

      1. A suspensivo appeal bond reciting in substance tliafc it is given as surety that appellant shall x>rosecute bis appeal, and pay such judgment as may be rendered against him is. good.

      % A devolutive ax>peal bond filed in tbe clerk’s oí lice before tbe expiration of the return-day fixed in the order of appeal, is in time.
    3. An agreement entered into between two rival candidates for a public office, whereby each one of them undertakes and binds himself to pay the other, in case of liis own election, one-half of the not profits of the office, for the term, is in violation of good order; and public policy, subversive of tbe best interests of society, has a tendency to destroy tbe safe-guards of the ballot-box and cannot be enforced by the courts.
    APPEAL from the Third District Court, Parish of Claiborne-Young, J.

      Allen Barksdale, John A. Bichardson and John B. Phipps for Plaintiff and Appellee.

      Pfjan & Pierson and J. TF. Holbertfor Defendant and Appellant:
   Tlie opinion of tlie Court was delivered by

Watkins, J.

Plaintiff moves to dismiss this appeal on the following-grounds, viz:

1st. That the suspensive appeal bond is not conditioned that appellant shall prosecute his appeal; nor that he shall pay and satisfy “whatever judgment'may be rendered against him if he be cast in his appeal; ncr that he shall pay the cost of both the Supreme Court and inferior court if he be cast in his appeal.”

2d. That there is no order of appeal to support the bond last filed, on June 3,1886.

The judge a quo in his order, granted in open court appeals suspensive and devolutive returnable to this Court according to law on the-return day, and suspensive appeal bond was fixed according to law and the devolutive appeal bond at $175.

Appellant furnished a suspensive appeal bond in the sum of $1,300,. but the technical sufficiency of same is complained of and may be open to objection — but with reference to which we find it unnecessary to express an opinion, inasmuch as the appellant filed a devolutiveappeal bond before the return day had expired. This bond is not objected to as to form. The quotation from the order of appeal above-given was ample authority for it.

The fact that the transcript had been previously prepared and certificate signed makes no difference.

It was submitted to and filed by the clerk in time, as same was done-prior to the return day fixed in the order of appeal, granting both a devolutive and suspensive appeal. 35 Ann. 937, Thomas vs. Bienvenu.

Motion refused.

On Tins Merits.

Plaintiff and appellee has filed in this Court an answer to the appeal and prays that the judgment of the lower court should be increased to $1,458.33.

This suit arises under the following agreement, viz:

STATE OF LOUISIANA, PARISH OF CLAIBORNE, ?

April 23, 1884.-' £

Articles of agreement made and entered into this day by and between I. N. (llover and J. H. M. Taylor, is as follows, to-wit: That in

case I. N. Glover is elected sheriff of the above parish and State, or J. H.M. Taylor, that we do both agree that the sheriff elect shall divide equally between each other the profits of the sheriff’s office during the four years; and also agree to pay John M. Brown the sum of two hundred dollars per year for the above term mentioned, and the unsuccessful candidate shall be deputy sheriff.

(Signed) J. H. M. TAYLOR,

I.N. GLOVER.

Plaintiff further alleges that J. II. M. Taylor was duly elected sheriff of the said parish at said election; that the said office pays $4,200 per year, and claims judgment against defendant for $2,450, one-half, for fourteen months.

Defendant answered, admitting his signature to the original agreement, but denying the existence of the contract as set up by plaintiff in his petition, and urged various special ■ defenses against the legality ■of the agreement.

The case was tried by a jury, verdict and judgment for plaintiff, and defendant appeals.

Before issue was joined, either by default or answer, defendant filed the following peremptory exceptions to plaintiff’s petition and cause of action:

IN DISTRICT COURT — JULY TERM, 1885.

No. 657.]

Now comes defendant in this suit for the sole purpose of excepting to plaintiff’s petition and cause of action on the following grounds, to wit:

1st. Petition discloses no cause of action, in this: that the contract or agreement upon which plaintiff base3 his cause of action, is prohibited by lawr, contra bonos mores, against good order and public policy, null and void, and cannot be enforced by law.

2d. Defendant specially pleads that if the court should hold that the first ground set up in this exception not good, and should hold that said contract can be enforced by law, then defendant pleads prematurity of plaintiff’s action.

3d. If the court overrules the first grounds, then defendant pleads that plaintiff cannot sue for a specific amount, involving a settlement to ascertain said amount, before he alleges and proves a settlement, and that said amount is due after said final settlement.

Wherefore, defendant begs that this exception be sustained, and plaintiff’s suit be dismissed with all costs.

J.W. HOLBERT,

Attorney.

After this exception was filed, and before the trial of same, defendant filed his answer and then called up his exception for trial. The plaintiff, here, objected to the trial of the exception and urged that defendant had waived the same by subsequently filing his answer. The court heard the peremptory exceptions and overruled the same.

The first exception propounds the serious question in this case. Has plaintiff an actionable interest on such a contract?

This is not an action for services performed, in pursuance of his. employment as deputy sheriff, and to which he liad been appointed according to law, by reason of his peculiar fitness and competency for the discharge of the responsible duties thereof. C. P. 764.

The agreement was entered into before the result of the election was known, and at a time when neither was an occupant of the office, nor had any title to it.

In Davis vs. Holbrook, 1 Ann. 176, plaintiff brought suit on an agreement couched in these words, viz:

“ If the vote of Louisiana is cast for Henry Clay, the endorsed certificate of deposit for $3,000 00, payable to our joint order endorsed thereon, is to be delivered to E. A. Davis, one of the undersigned. Should the vote of Louisiana be cast for James K. Polk, then the certificate is to be delivered to A. H. Hayes, whose name is also hereunto subscribed.

“(Signed:! “E. A. DAVIS,

“ A. II. IIAYES.”

In that case the Court say:

“ The safety and success of our institutions depend upon the purity of the elective franchise, and the substitution of a desire for gain, to the exercise of that free and unbiased judgment which an elector is bound to exercise in the choice of those to whom political power is to be entrusted, is so fraught with disastrous consequences that they cannot be considered without alarm. •

“ The addition of a spirit of rapacity to the already too ardent excitement growing out of the struggles for ascendency between parties^ tends to produce consequences which must result in putting an end to this great experiment of self-government which our republic offers to the world. * * * *

“Our elections, if such proceedings are tolerated, would cease to be the choice of the people, of those who are to administer their affairs, but become a disreputable game of desperate chance, and profligacy.”

In 12 Ann. 154, Fox vs. City, the Court held that “no action can be maintained upon a contract made in violation of law.”

Our Code declares that “an obligation without a cause, or with a ■false or unlawful cause, can have no effect.” E. C. C. 1893.

From the letter of the instrument sued on the only consideration on which it rests is the illegal condition on which he was to obtain one-half of “the profits of the sheriff’s office during four years” — -an office •to which he was not elected by the votes of the people.

Offices are to bo granted absolutely without any condition. It is not in the power of the grantor to lessen the emoluments which the law has affixed to the discharge of official duties; it matters not to what use ■the share of emoluments thus carved out is applied. The public will be all ill-served if the circle within which an officer is to be selected, is narrowed by a reduction of the legal emoluments. If these are withdrawn from the incumbent, he may be placed under the temptation of compensating himself by speculation, extortion and fraud.” 4 O. S. 49, Faurie vs. Morin, Syndic.

It is the duty of the sheriff, under the law, to make the best appointment in his power, according to his judgment, at the time of making '.the appointment; and it is against public policy and adverse to the efficient performance of the duties of his office, that he lias entered into •a binding agreement beforehand to appoint a certain person without any regard to his qualifications, and to deprive himself of the power of making the appointment'of others if needed, and of removing the appointee if, in his judgment, his removal became necessary.

This contract is for four years — the entire term of defendant’s office. Not only does it provide for the equal division of the profits of the sheriff’s office during the four years, but it contains a further specific •agreement “to pay John M. Brown'the sum of two hundred dollars per ■year for the above time mentioned,” etc.

Defendant, in an amended answer, tendered and refused, directly •charges that the plaintiff procured, unduly and illegally and by means of a valuable consideration, the support of John M. Brown, and his •relations and friends, and his and their votes, at the polls and at the. election whereat the plaintiff was a candidate, and whereby the result ■of said election was unduly influenced against defendant, and that said consideration entered into and formed a part of the agreement sued on, and was evidenced in writing.

While this averment furnishes no proof, even the charge, under the circumstances stated, gives color to the complaint.

In 101 U. S. 112, McGuire vs. Corwin, the Court said:

“ While recognizing the validity of an honest claim for services honestly rendered, but which are blinded and confused with those which -are forbidden, the whole is a unit and indivisible. That which is bad . destroys that which is good, and they perish together.

When the taint exists, it affects fatally, in all its parts, the entire body of the contract. * * * When there is turpitude the law helps neither party.”

Public offices cannot be the object of a contract of sale or a cession.

Our conclusion is that the agreement sought to be enforced is one entered into in open violation of good order and public policy, and the -enforcement of which would lead to consequences subversive of the best interests of society, and have a direct tendency to destroy the •safeguards of the ballot-box.

The defendant’s first exception was well taken, and should have been maintained.

It is therefore ordered, adjudged and decreed that the verdict of the .jury and the judgment appealed from be avoided, annulled and reversed, and that the defendant’s first peremptory exception be sustained, and plaintiff’s demands be rejected and that he be taxed with the costs of both courts.


author: Poché, J.

text:
    No. 1153.
    Janie S. Richardson et al. vs. Robert Richardson.
    Tn case of conflict between provisions of the Civil Code and those of the Code of Practice on questions of practice the provisions of the latter Code must prevail.
    Under art 958, Code of Practice, the office or function of curator ad litem has no longer any existence in law.
    When laws in pari materia are to be interpreted, that construction is to be preferred which will give effect to all their provisions.
    Hence art. 958, C. P., in abolishing the function of curator ad litem, does not abrogate any of the rights vested in emancipated minors by sec. 2, chapter 2 of the Civil Code on the subject of emancipation.
    'Their right to appear in courts in order to enforce such rights, without assistance, is therefore maintained.
    APPEAL from the Fifth District Court, Parish of Ouachita. Riehcvrdson, J.

      Potts & Hudson for Plaintiffs and Appellees.

      T. O. Benton for Defendant.

      (J. J. & J. 8. Boatner for Intervenor and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The cause of action and the relief sought in this suit are identical with the matters at issue in the case of Robert G. Richardson, et al vs. Robert Richardson just decided, with the exception of a question of practice which distinguishes the one from the other to that extent only.

Jn this case the plaintiffs, minors, above the age of fifteen and unmarried, have been emancipated by the notarial declaration of the defendant, their father, under the provisions of art. 366 of the Civil Code, and thus are joined and assisted in their suit by a curator ad litem, specially appointed and qualified for the purposes of this controversy.

Intervenor excepts to their capacity on the ground that the office or function of curator ad litem has been abolished by art. 958 of the Code of Practice.

Plaintiffs resist the right of an intervenor to xxrge exceptions or other matters of pleading which are personal to the defendant.

We arc rather inclined to adopt these views, and we entertain very serious doubts of the right of intervenor herein to set up this special defense, bxxt pretermittihg a discxxssion of that question we have concluded to consider the plea.

Article 375 of the Civil Code, which is- incorporated in chapter the second under the title of minors and forms part of the second section, which treats of the “emancipation conferring the power of administration,” reads as follows :

“The minor who is emancipated otherwise than by marriage cannot appear in courts of justice without the assistance of a curator ad litem, who is to be appointed for him specially by the jxxdge for that purpose.”

Article 958 of the Code of Practice provides as follows:

“There shall hereafter be ixo curator ad bona or curator ad litem appointed in any case; the persons and estates of minors shall in all cases be placed under the power of tutors and under tutors; and the powers, duties and responsibilities of tutors and xxnder tutors, as well as their liability to be removed from office, shall continue until the minor or minors attain the age of majority, or are otherwise emancipated.”

Intervenor argues, and it must be. conceded, that in questions of practice, in case of conflict between the Civil Code and the Code of' Practice, the provisions of the latter Code must prevail.

It follows that the office of curator ad litem has ceased to exist under our laws.

But from those premises, interveuor’s counsel conclude that minors emancipated otherwise than by marriage are stripped of the capacity to appear at all in their own rights in any judicial proceedings. >

We cannot sanction their conclusion.

As a guide to courts in interpreting laws of a doubtful moaning, the Civil Code, art. 17, contains the following provision :

“Laws in pari materia, or upon the same subject matter, must be construed together with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

And from that proposition, jurisprudence has extracted the following corrolary which embodies a judicious rule of construction.

“ When laws in pari materia are to be interpreted, that construction is to be preferred which will give effect to all their provisions.” Succession of Hebert, 5 Ann. 122; Desban vs. Pickett, 16 Ann. 350; Staes vs. Gastinel, 21 Ann. 407.

The evident and clear intention of the law-maker in enacting the various articles from 366 to 378 of the Civil Code, forming sec. 2 of chapter 2, treating of the emancipation conferring the power of administration, was to relieve that class of persons of certain disabilities which otherwise attach to minors. Hence art. 370 reads:

“ The minor who is emancipated has the full administration of his estate, and juay pass all acts which are confined to such administration, grant leases, receive his revenues and moneys which may be due to him and give receipts for the same.”

To be effective, the right to administer an estate, to receive revenues, etc., must include the right to judicially demand either the estate which may be withheld or the revenues which are due and payment of which is refused or. neglected. Of what avail would be the right to receive revenues, if the same could be arbitrarily retained by the debtor

The question is practically answered by art. 375, which confers the right to the minor to appear in courts; but the article imposes a condition in certain cases, and that is the assistance of a curator ad Utern.

Now, in abolishing that function by the act which is now embodied in art. 958, C. P., did the law maker intend to strip that class of emancipated minors of the right of appearing in courts altogether ?

To have done so would carry with it the denial of almost all the rights conferred to them by the provisions of the Civil Code above referred to, and thus the law giver would leave them at the mercy of those who would choose to invade their rights, as no other means are provided for to empower them to appear in courts.

Such a construction is repulsed by the rules of interpretation which we have hereinabove quoted.

But in terms, the'art. 958 limits the disability of minors to the time <of their emancipation.

Intervenor’s counsel are in error in contending that the emancipation referred to is that provided for in the Code for minors who are over the age of eighteen years and are by that emancipation relieved of all ■their disabilities.

In our opinion, the article refers to all minors who are thus or otherwise emancipated.

Hence we conclude that the class of emancipated minors with which we are now dealing, have the legal power to appear in courts in their •own rights for the purpose of enforcing the rights which are vested in them by art. 875 of the Civil Code and other articles on the same subj ect matter.

We, therefore, hold that the plaintiffs in this case have the capacity to stand in judgment in this suit, and that their pleadings are not vitiated by the unnecessary joinder of a curator ad litem.

All other questions which are presented in the case are fully covered by our opinion in the case of R. G-. Richardson et al vs. R. Richardson, No. 1152, hereinabove referred to, and hence these plaintiffs are entitled to the same relief which was granted in the other case.

Judgment affirmed.


author: Pooiié, J.

text:
    No. 1148.
    The State of Louisiana vs. White Major.
    The complaint of an accused that lie was refused further time to prepare a motion for new trial five days after conviction, cannot he entortained.
    ■Such matters are within and must he left to the sound discretion of the trial judge.
    It is not only the right hut the duty of the trial judge to order the correction of the minutes of Ms court so as'to make them conform with the true facts as they occurred.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      M. J. Cunningham, Attorney General, and B. A. CSullivan, District Attorney, for the State, Appellee:
    Every court has the power to correct its minutes so as to conform to the facts, and such corrections can ho made after appeal taken. 31 Ann. 388, 407, 557; 32 Ann. 1229; 33 Ann. 135; 34 Ann. 370; 35 Ann. 852.
    -A party who is brought up for sentence five days after conviction, is not entitled to further delay to prepare and file a motion for new trial.
    Applications for such delays are addressed to the sound discretion of the trial judge, and his action thereon is'not to he reviewed unless manifestly unjust. If any time intervened between verdict and sentence, appellant must show special reason why more was needed.

      J. 8. Bilim for Defendant and Appellant.
   The opinion of the Court was delivered by

Pooiié, J.

This appeal is from a conviction of breaking aud entering in the night time a dwelling house with intent to kill, and from a ■sentence of imprisonment at hard labor for life; it presents two complaints by bills of exceptions.

1. The defendant complains that he was refused a reasonable extension of time to prepare and jiresent a motion for a new trial.

The facts are that he was convicted on the 12th of April, on which •day the judge announced that he would pass sentence on the 17th of that month.

On that day the defendant moved for further time for his motion, ;and his request was, in our opinion, very properly refused.

There is no merit in the complaint; and members of the bar may rest assured that all attempts to induce this Court to interfere with trial judges in the exercise of their legal discretion, can jirove of no ravail to their clients.

2. The defendant next complains of an order of the judge on motion •of the district attorney, directing the clerk to amend the minutes of the court after the order of appeal had been granted.

In the light of our jurisprudence, the mere statement ol' the complaint is its best answer.

The minutes of his court are absolutely under the control of the .judge, and corrections of the same, so as to make them conform with the facts as they occurred, is not only permissible but it is imperative when the attention of the court is called thereto. State vs. Mason, 32 Ann. 1018; State vs. Teissier, 32 Ann. 1227; State vs. Cox, 33 Ann. 1056.

The trivial character of the grounds supporting this appeal justifies the conclusion that the accused has had a remarkably fair and impartial trial.

Judgment affirmed.


author: Todd, J.

text:
    No. 1158.
    Godshaw & Plant vs. The Judges of the Second Circuit Court of Appeals.
    Kn an action by a judgment creditor to bave the purchase of property declared simulated and to be in reality for account of the debtor, the value of the property, and not the amount of the judgment, is the matter in disputo. 27 Anu 1S6.
    A PPLICATION for Certiorari and Mandamus.

      Millscvps & Sholars for the Relators.
   The opinion of the Court was delivered by

Todd, J.

The relators, as judgment creditors of Joshua Lemle for-$600, brought suit to have declared simulated, null and void, a sheriff’s sale of a stock of goods belonging to their debtor, and also a subsequent conveyance of said property by Winchester Hall, the adjudicate©at said sheriff’s sale, to one Julius Lemle. Prom an adverse decision-of the district court in said case, they appealed to the Second Circuit Court of Appeals, holding sessions in city of Monroe, parish of Ouachita, and by this court the appeal was dismissed, the judges thereof holding that the court was without jurisdiction to entertain the appealratione materiae.

The plain tiffs in said suit then applied to this Court for a writ of' certiorari, through which the record of proceedings in the case have been brought before us, and also for a writ of mandamus directed against the judges of said court to compel them to take jurisdiction, of said appeal.

The judges of said court, in answer to the preliminary rule, state substantially that they have declined jurisdiction of the appeal because-tile real issue involved in the case is the title to property estimated to-be worth thirty thousand dollars, this being the alleged value of the-stock of goods in possession of Julius Lemle, one of the defendants in said case, the sale of which to him is sought to be declared a simulation.

The question presented is simply whether the jurisdiction is to be determined by the amount of the pecuniary demand or the value of the property, the title to which is assailed. This has been the subject of several adjudications of late, and can scarcely be considered a matteifor further discussion. State ex rel. Bloss vs. Judges Court of Appeals, 33 Ann. 1351; John Chaffe & Sons vs. D. D. DeMoss and wife, 37 Ann.. 186. This last case cited is a parallel case with the present one. There a judgment creditor of the husband, for less .than $2000, sought to have declared the purchase of a plantation in the name of the wife a simulation and as really made for the husband. It was held that the case was properly appealable to the Supreme Court, because the property was worth $6000. .

But the relator urges that, inasmuch as he has prayed that the title to the property be declared null only so far as it affects his claim,, this limitation or restriction in his demand invests the court with jurisdiction.

There is no force in this contention. The sale was of one stock of" .goods. The title under this sale is attacked; The matter of title is ■clearly indivisible; it cannot be good as to a part and bad as to a part. It is charged that the pretended purchaser at such sale was not the real purchaser, but that he was a person interposed — interposed for his debtor, the real purchaser. The sale was a sale in block. Plow ■could a person be interposed for another as to an undefined part of said ■■sale and not interposed — not acting for another but for himself, as to residue ? Such an idea of course is an absurdity.

The court of appeals had no jurisdiction.over this appeal, and it was properly dismissed by that court.

It is therefore ordered, adjudged and decreed that the alternative writ of mandamus be set aside, and the writ now discharged at the ■costs of plaintiif and relator.


author: Fenner, J.

text:
    No. 1149.
    Heirs of Josephus S. Barrow vs. A. W. Barrow.
    “The will of tlio decedent was probated after duo notice to the major heirs and to the legal representatives of the minor heirs; the executor was duly qualified and fully administered the estate; he filed his final account, assigning to the several heirs their special legaci.es, and fixing the distributive share of the residue falling to each heir, and prayed ■for its homologation, service of the petition having been accepted by the major heirs and the legal representatives of the minors; whilo said account was pending, said heirs and representatives received and receipted for their said legacies and shares, and granted full acquittance to the executor; and thereupon judgment was rendered homologating the account and granting final discharge to the executor.
    A fter such proceedings, the heirs cannot be heard eight years afterwards to attack the validity of the will and the settlement of the executor. Such an action will not be sustained upon a bare allegation of error and fraud without the slightest suggestion of the nature and ground of such charge.
    The plea of estoppel to such a suit was properly sustained as to all the plaintiffs except John "W\ Barrow, who was a minor unrepresented at the time, and was no party to the proceedings or settlement.
    As to him, however, the prescription of five years from his majority applies and his action is barred.
    APPEAL from the Third District Court, Parish of Claiborne. Young, J.

      James Dormon, McOlendon & Seals and J. W. Molbert for Plaintiffs and Appellants:
    1. Heirs who sue for the nullity of a testament and the reduction of an excessive donation, are not required to make a tender of what they had received before bringing their suit. 33 Ann. 749; 36 Ann. 236 ; 33 Ann, 773; 34 Ann, 1017; Sue. E. Commagere, Ho. 9532.
    •2. A judgment attacked cannot be pleaded as res judicata and estoppel againss the action of nullity. 32 Ann. 13 ; 29Ann. 599 ; 32 Ann 1006; 34 Ann, 808; 15 Ahtf.-^OD ; 33 Ann. >7-19 J and 1198; C. P. 928-43.

      3. A judgment probating and ordering a will executed, is not binding on the heirs present: or duly cited. 18 Ann. 444 : 10 Ann. 78; 6 Ann. 104; 2Ann. 724 ; 13 Ann. 575 ; 15 Aim. 209..
    4. Minors can never be estopped. 16 Ann. 248; 1G Ann. 98; 13 Ann. 508; 1 R. 10.
    5. A minor can orly be represented in judicial proceedings by a tutor acting for and in file-name of the minor. C. P. 108-9; 6 L, 377 ; 11 R. 693.
    C An executor cannot represent the minor heirs in the settlement of the estate he administers. C.P. 117; 13 Ann. 97; 10 Ann. 224; 21 Ann. 712.
    7. Personal citation is necessary to render a judgment homologating a final account bind* ing on the heirs. 15 Ann. 676; 1G Ann. 258 ; 11 Ann. 412; G L. 222; 11 R. 109 ; 6 L. 354; 7 R. 46 ; 10 Ann. 674; 8 L. 321; 5 R. 453.
    8. A citation must be addressed to the defendant. The defendant only or his attorney of record can waive ci'atiq^. G. P. 173,177 and 176.
    9. The husband cannot waive citation on his wife when she is principal defendant, and the husband not a party to the suit. 19 Adu, 208 and 360; C. P. 178 and 192; C. C. 1317.
    10. A waiver of citation must be clearly shown; a court cannot presume anything with respect to a party being cited. 19 Ann. 212; H. p. 245-4; L. p.113-4.
    11. In an exception of no cause of action, the allegations of the petition are taken as true, no evidence can be received. 30 Ann. 1148 and 14 Ann. 137 and 825.
    12. Substitutions and fideicommissa are prohibited. G. G. 1519 and 1520.
    13. An heir has a right of action against his co-heir for collation and of reduction. G. G. 1242 to 1250, and 1502 to 1518.
    14» A disposition of property reprobated by law cannot be ratified. 29 Ann. 120 ; 15 Ann. 700; 3 Aim. 328; 21 Ann, 600; 15 Ann. 154.
    15. A paTty cannot be held to ratify a settlement when they were ignorant of the facts on which the settlement was made. The party must know the defect ho is waiving. C. O.. 2272,1786; C. H. 1338 ; 23Ann.538; 15 Ann. 569; Bigelow on Estoppel, p. 489, ctseq.

    16. Receipts given by heirs to an executor “ in full settlement of their interest ” in an estate, are not conclusive. 12 Ann. 775; 4 Howard, 561; 21 Ann. 532; 29 Ann. 446; C. C. 1312 and 1317.
    17. A substitution and fidei commissa cannot be cured by time — no prescription applies. 13 Ann. 575 ; 11 R. 312 ; 3 Ann. 329 ; 29 Ann. 120 ; 15 Ann. 702.
    18. A judgment absolutely null can be the basis of prescription. 24 Ann. 253 ; IN. S. 9.
    19. In case of error and fraud, prescription runs from its discovery. C. P. 613 ; H. 1213-1-4 ;• E. p. 5C6-2-6,
    20. The prescription of five years applies to an action to annul a testament, donations, etc.,, and in case of minors this proscription begins to run after majority, O. C. 3542.

      John A. Hiehardson and WatMns <& Watlcms for Defendant and Appellee.
   Tlie opinion of the Court was delivered by

Fenner, J.

Josephus S. Barrow died in 1878, leaving tlie following testament:

STATE OF LOUISIANA,)

Parish of Claiborne. $

Know all men by these presents, that I, Josephus S. Barrow, of the State and parish aforesaid, knowing tlie uncertainty of life and the certainty of death, being in feeble and bad health, but possessed of a sound and disposing mind, have this day, the sixth of February, A. D. 1875, feeling it to be a duty I owe to my family, have this day made and written with my own hand this my last will and testament. In the name of God, amen, hereby revoking all those by me at any previous time made.

First — It is my will and desire that all my just debts, which are but few, together with my burial expenses, to be paid by my executors as soon as they may obtain funds sufficient to do the same from my estate.

Second — I hereby will and bequeath unto my beloved wife, Kebecca E. Barrow the following property, viz: A settlement of land on Middle Fork bayou, in the above State and parish, including my old homestead, containing 1000 acres more or less, including all the improvements thereon, together with all my household and kitchen furniture, together with all my real estate in Homer, except the storehouse and grocery occupied by Otts & Barrow, together with forty acres of land lying south of Homer, known as the Turner forty; also my two-horse buggy and harness, two sorrel mares, two cows and calves of her own choosing from my stock; also my two-horse wagon and harness.

Third — I also will and bequeath unto my daughter, Joanna, two thousand dollars in money, for which she holds my note; also my daughters, Dolly P., Ida Exar, and my sons, James L. and Charles E. the same amount, together with one horse, bridle and saddle each, one cow and calf each, to equalize them with all my other children that have left me heretofore.

Fourth — I also will and bequeath unto my son, A. W. Barrow, the brick store house and grocery in the town of Homer, upon condition that the said A. W. Barrow pay-to the sons of J. W. Barrow five hundred dollars each when they become twenty-one years of age. If one of the sons of J. W. Barrow should die before arriving to be twenty-one, then the surviving brother should be entitled to the thousand dollars. If neither of them should live to be twenty-one, and the said sum not paid over to one or both of them, then said thousand dollars to be the property of A. W. Barrow, who has it in trust.

Fifth — Should my son, W. H. Barrow present himself within the time limited by the statute of this State, he shall be entitled to an interest of two thousand dollars in said store house and lot, to be held in trust by A. W. Barrow for the benefit of Wm. H. Barrow or his. legal heirs. He or they receiving and receipting for the profits from said house as it may accumulate.

Sixth — I hereby appoint and ordain A. W. Barrow and W. P. Otts, Sr., my executors to effectually carry out and accomplish this my will, without giving bond, and to take full possession of all my estate winch lias not been disposed in this will, and sell and dispose of the same to the best of their judgment for the benefit of my wife, R. E. Barrow, A. W. Barrow, M. R. S. Nicholas, Joanna Barrow, Dolly P., Ida Exar, James L. and Charles Edwin Barrow.

(Signed) J. S. BARROW.

Attested by six witnesses.

CODICIL.

STATE OP LOUISIANA, ?

Parish or Claiborne. £

I, Josephus S. Barrow, of the State and parish aforesaid, being greatly afflicted, but possessed of a sound and disposing mind, have this day added this codicil to the above will, which is my own will, written with my own hand, and I also write this codicil owing to the great depreciation in real estate. I do hereby will and ordain when my estate is wound up and my executors, if the store house and grocery occupied by A. W. Barrow and Otts is not worth $5,000, then my son, A. W. Barrow, my executor, shall not pay W. II. Barrow or his heirs but half the amount specified in the above will to 1dm, and also J. W. Barrow’s two sons half the amount willed to them in the above will. Signed, sealed and delivered in the presence of the following witnesses January 1, 1876.

(Signed) J. S. BARROW.

The clauses attacked give to A. W. Barrow a lot and brick store upon it, charged with the condition that A. W. Barrow shall pay to his absent brother, W. II. Barrow, when he presents himself and claims it, interest on $2,000, out of A. W. Barrow’s own means.

This is not a field commissum or substitution.

Succession of Cochrane, 29 Ann. 232. The clause of a will by which the testator gives a sum of money to a minor and directs that the same shall be invested so as to yield a revenue until the legatee’s majority does not involve a substitution.

The devise of a certain sum to a minor, and in the event of her death to another, is not a prohibited substitution.

The doubtful clauses should be so construed as to give the will effect. A naked trust, to be executed immediately as where furniture is devised to a mother for the benefit of her minor child, is not a fidei eommissum.

The will was presented for probate to the proper court of his domicil, and a judgment was rendered declaring the same proved and ordering its execution. A. W. Barrow, one of the executors appointed by the will, was duly qualified and confirmed.

An inventory was taken. The estate was administered, and in May, 4878, the executor filed his final account, in which, after delivering the •special legacies and paying the money legacies, he distributed the remainder amongst the heirs. This account was duly advertised. The -service of the petition for its homologation, was accepted by the major heirs and by the legal representatives of the minors.

All the heirs received and gave receipts for their legacies, and also .for the distributive shares coming to them under the account.

After due proceedings, judgment was rendered homologating the •account and finally discharging the executor, which was signed on •June 24, 1878.

The present suit was instituted by the petitioning heirs in 1886, .nearly eight years afterwards.

The petition propounds the following grounds of action:

1st. That the entire will is a nullity for want of compliance with fhe forms of law in its execution.

2. That clauses four and five of the will are null, as containing prohibited substitutions and ficlei commissa.

3d. That “for the abovementioned reasons” (to-wit: the alleged nullities in the will) “the pretended testament and the judgment homologating the same are absolute nullities.”

4th. That A. W. Barrow had received large advantages from the •decedent, which lie was bound to collate.

5th. It pleads “ error and fraud in the settlement of the estate of J. 'S. Barrow, deceased, by A. W. Barrow,” without the slightest specification of the nature or grounds of such error or fraud.

Upon these grounds, plaintiffs ask a judgment decreeing the nullity of the will and especially.the clauses four and five thereof; decreeing the nullity of the .judgment probating the will and of the judgment homologating the executor’s final account; decreeing- that plaintiffs recover of defendant their interest as heirs in the brick store house and lot bequeathed to him by said clause four of the will; and finally •condemning defendant to account for and collate to plaintiffs a large .amount which he had received in excess of his interest as heir.

To this petition defendant filed several peremptory exceptions and pleas, amongst which may be mentioned:

1st. No cause of action.

- 2d. Estoppel resulting from the judgments probating the will and homologating the executor’s final account and discharging him, and .from the settlement and receipts in accordance with said account.

3d. Prescription.

From a judgment sustaining the exceptions and pleas generally, and' dismissing the suit, the plaintiffs prosecute the present appeal.

We think all the heirs, with the exception of J. W. Barrow, are conclusively estopped from -prosecuting the present suit by the probate proceedings and the settlements effected thereunder.

Those proceedings and the settlement are to be considered together..

Without nicely discussing the technical validity of the citations and acceptance of service of petitions, it is apparent that the major heirs and the legal representatives of the minor heirs were fully notified of" all the proceedings therein and took cognizance thereof; that they fully confirmed and ratified them; that they accepted and receipted for their legacies under the will, and also for their distributive shares-as heirs in the residue as ascertained by the final account; and that,, upon the faith of their said acceptance and receipts, the judgment was rendered homologating the account and finally discharging the executor»

As was said in another case, “the heirs ratified and confirmed the will; they were recognized and put in possession of their respective shares; his succession has been fully administered and his executors have been discharged.

After all these proceedings and in the face of their solemn acts, the heirs cannot be heard when they seek to annul the will in any of its-parts.” Heirs of Johnson vs. Johnson, 26 Ann. 572; see also Suc. McCloskey, 29 Ann. 406.

The minority of some of plaintiffs cannot protect them from thisestoppel. They are bound by the acts of their legal representatives^ acting within the scope of the powers conferred upon them by law.. Heroman vs. Institute, 34 Ann. 813.

Neither is the estoppel defeated by the vague allegation of error and. fraud contained in the petition. We have quoted heretofore the sole allegation contained in the petition on that subject, and one so vague- and indefinite goes for naught. Besides, so far as the validity of the-will was concerned, it is apparent there was no room for error or fraud..

The will being thus protected from attack, its terms are sufficient to-cut off any claim for collation of advantages previously received by heirs; for the third clause of the will shows conclusively that the-legacies therein made to certain heirs were intended “to equalize them with all my other children,” which, under art. 1233, C. C., is a sufficient-indication of the testator’s intention to exclude all question of collation of previous advantages.

These views dispose of the case of all the plaintiffs except John W-Barrow. He was a minor without any legal representative, and he is-not bound by any of the proceedings in the succession of J. S. Barrow,.. nor has he, in any manner shown by this record, been settled with, or ratified or confirmed the proceedings.

Unless he is concluded by the plea of prescription, we see nothing to prevent his prosecuting the present action.

The action is prescribed by five years. C. C. 3542; Heirs of Miller vs. Ober, 34 Ann. 592.

The prescription commences to run only from his majority. The evidence shows that he was four or five years old in 1863. Hence he must have attained his majority at least in 3880, and as this suit was-filed only in 1886, the prescriptive term had expired.

On the whole, we think the judgment appealed from has done justice..

Judgment affirmed.


text:
    No. 1156.
    Mrs. G. J. Davie and Husband vs. Mrs. Bettie Scriber et al.
    1. Under the Act of April, 1853, and the Constitution of 1864, the cleik had no authority to • grant an ordsr of seizure and sale.
    2. Article 990, Code of Practice, does not contemplate sales of property of estates made at the instance of succession representatives, hut such as are applied for by creditors only.
    3. Under the provisions of the Constitutions of 1845, 1852 and 1864, and statutes enforcing them, clerks had jurisdiction and authority to grant orders for the sale of succession property. 12 Ann. 56, Succession of Boyd; 21 Ann. 505, "Wood vs, Lee.
    4. The clerk having been possessed of jurisdiction to grant the order, same protects the adjudicates and subsequent purchasers.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      G. J. & J. 8. Boatner for Plaintiff and Appellant.

      Franldin Garrett for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff, as forced heir of Francis Sheppard, whose intestate succession was opened in the parish of Ouachita in 1863, and of which his surviving widow qualified as the administratrix, sues for the revocation of a judicial sale of certain real estate of which the decedent died possessed, and which is alleged to consist of an undivided one half interest in a certain plantation situated on Bayou de Siard, of four hundred acres, and which is alleged to have been appraised in the inventory at $8 per acre, or $3,200.

She alleges that she was a minor at her father’s death. That on the-28tli of September, 1867, upon tbe application of the attorneys of Samuel L. Sbeppard — an alleged creditor of the said succession — the clerk of the Twelfth District Court for the Parish of Ouachita rendered an order directing the sheriff to sell all the property of said estate, oí so much thereof as should be necessary to satisfy his claims. The property was adjudicated to E. G-. Cobb, on the 4th of January, 1868, from whom, by severa) mesne conveyances, defendant acquired title, under which she now holds. Plaintiff alleges that the adjudication was an absolute nullity, and conveyed no title, because, among other reasons assigned, “ the clerk of the court who granted the order prayed for, was absolutely without authority or jurisdiction to entertain the same, or to make any order thereon,” and she prays judgment accordingly.

The different defendants and warrantors respectively tendered various exceptions, and answers subsequently and calls in warranty, in which they substantially assert the legality of the order of sale complained of and the consequent legality of the adjudication to E. G-. Cobb.

The decision of this case must depend upon the legality, or the illegality, of the order of sale, as it, in our opinion, is the only question propounded by the plaintiffs that can seriously affect defendant’s title.

Plaintiff’s counsel relies upon 12 Ann. 68, Mason’s ex’rs vs. Fuller, as authority for the position he has assumed. In that case plaintiff enjoined w’hat the Court considered as an order of seizure and sale. The Court say: “ In pursuance of the Article of our present Constitution (1852), the Act of April, 1853, empowered the clerks of courts, amongst other things, “to grant orders for the sale of succession property. We interpret this to mean such orders as are required, or are asked for by curators, administrators and executors in the regular course of their administration; sueh orders as they ask for the sale of so much property as may be necessary to pay the debts in general, which are exigible; orders which are therefore properly granted ex parte.

“Here the applicant for the order is not an executor, but a creditor acting adversely to the executor; that is, he seeks to compel a sale of the property under the administration of the executor * * * and, finally, the order is not to sell property of the succession to pay debts in general, but to sell a specific piece of property on which a vendor’s privilege is claimed, to pay by preference a specific debt, held by the creditor who seeks to procure the order, in a petition drawn up nearly ■in the form of a petition for a seizure and sale.

“ The creditor should have resorted to the district court either to procure an order of seizure and sale, or a rule on the executor to show cause why the property should not be sold according to Articles 991 and 992 of the Code of Practice.”

Article of Code of Practice 990 provides that it sir all be the duty of' the several judges of probate, “upon the application of the creditors, or any creditor, of a vacant estate, to cause * * * so much of the property of the said estate as may be necessary to pay the debts of the’ same that may he due, to be offered for sale,” etc.

This article does not contemplate sales of succession property made-at the instance of succession representatives. They are governed by provisions of the Civil Code. The sales contemplated in said articles are such only as may be provoked by creditors. 33 Ann. 471, Succession of Hood; 16 Ann. 420.

Under the provisions of the Constitutions of 1845,1852 and 1864, the Legislature had power to vest in clerks of courts authority to grant such orders, and do such acts as they should deem necessary for the furtherance of the administration of justice.

Act 56 of 1855, conferred upon the clerks of the several district courts-the power “to grant orders for the sale of succession property.'1'1

In 12 Ann. 611, Succession of Boyd, the Court said: “The Constitution has authorized the Legislature to confer the power upon clerks to’ make certain judicial orders. These orders, when rendered by the clerk in the special cases authorized, have precisely the same effect as-they would have'if rendered by the judge himself under the same circumstances.”

Under the Constitution of 1845, Act 141 of 1850 declared “that the clerks of the several district courts shall have power to grant orders for the sale of property of successions.”

This statute was examined and passed upon by this Court’s predecessor in Woods vs. Lee, 21 Ann. 505, in which they say.- “This is an action by the heirs of E. E. Wood to annul the probate sale of a tract of land * * * made on the 28th of February, 1851, to one Joseph D. Lee, from whom the defendants acquired, on the following grounds, viz:

“First. The order of sale is insufficient, and void because the clerk-had no authority to make it.”

Again : “ The order of sale in this case was made by the clerk who-was specially authorized thereto by the Act of 1850, p. 100, and it had the same effect as if made by the judge.”

That case is precisely in point. As the clerk had jurisdiction, his order protects the adjudicatee and all subsequent purchasers. 14 Ann. 622, Succession of Guiney; 21 Ann. 507, Woods vs. Lee.

Judgment affirmed.


text:
    No. 1155.
    Friedman Brothers vs. Joshua Lemle—J. Lemle, Intervenor.
    ■"Where a third person appeals suspensively from a judgment making peremptory a mandamus directing the sheriff to accept a bond which has been tendered for release of property attached and to release the attachments, and where the condition of'the appeal bond is “to satisfy whatever judgment may be rendered against the appellant," the obligations of the bond are íestricted to the condition so expressed and, on failure to prosecute the appeal, cannot be extended to embrace an obligation to satisfy the judgment which had been rendered against the sheriff, or to pay general damages occasioned by the appeal.
    Nor can the principal be held for damages outside of the teims of the bond, without proof of malice and want of probable cause. His position is similar to that of the oiigina prosecutor of a civil suit, except in so far as the law has made a distinction between them in the requirement of bond.
    APPEAL from the Fifth District Court, Parish of' Ouachita. Richardson, J.

      Millsaps & Bholars and A. Golthwaite for Plaintiffs and Appellees:

      G. J. & J. S. Boatner for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs, as creditors of Joshua Lemle individually, ■•sued him and attached his stock of goods. Various other creditors levied similar attachments.

. A firm, styling itself J. Lemle, and alleging itself to be composed of Joshua and Julius Lemle, intervened in the proceedings and claiming ownership of the goods, applied for and obtained an order of court permitting it to release the same on bond. The firm thereupon tendered to the sheriff a bond in the sum of $19,974.50 conditioned according to law and with sureties which, however, the sheriff refused to accept. The firm then applied to the court for a writ of mandamus on the sheriff to compel him to accept the bond and release the property. After due proceedings, the mandamus was made peremptory.

The plaintiffs, together with several other attaching creditors, thereupon presented a joint petition representing that, though not parties to the mandamus proceeding, they had an appealable interest therein, and praying to be allowed a suspensive appeal from said judgment which was granted, returnable to this Court in June, 1885, upon their executing a bond for a suspensive appeal conditioned according to law, in the sum of twenty thousand dollars. The bond was executed in January, 1885.

It appears that prior to the application of J. Lemle to bond, certain of the creditors, not including plaintiffs, had applied for and obtained an order for the sale of the goods as being perishable, and J. Lemle having failed to release on bond owing to the suspensive appeal in the mandamus proceeding, said order went to execution and the goods were sold. It does not appear that J. Lemle made the slightest opposition to the execution of this order though, under the peculiar circumstances, they might, perhaps, have successfully done so, until their timely application to release on bond had been finally determined.

However, the goods having been sold long prior to the return day of the appeal from the mandamus judgment, of course the marrow was taken out of that controversy and the appeal was abandoned.

Although plaintiffs’ suit was filed on December 12, 1884, it was not put at issue by answer until September, 1885, when defendant pleaded .a general denial to the claim of plaintiffs; and then assuming the char.acter of plaintiff in reconvention, and claiming to be liquidator of the firm of J. Lemle, dissolution of which was alleged, he sets forth the facts heretofore recited touching the suspensive appeal from the mandamus judgment, and the failure of plaintiffs to prosecute the same; . avers that the sale of his goods was the consequence of said appeal; that it resulted in a sacrifice of said goods at a price far below their value in his hands had he not been prevented from releasing the same ■ on bond, occasioning him a loss on that account of $10,100 ; sets forth ■ other damage to his business, his credit, etc., to a large amount; prays for citation of Sigmund and Herman Meyer, sureties on the suspensive appeal bond; and for judgment against plaintiffs and said sureties in ■ solido in the sum of $20,000, the full amount of the bond, and against plaintiffs in the further sum of forty-nine hundred dollars.

Waiving objections to the mode of proceeding, which are serious, we prefer to consider the merits of the reconventional demand, which we shall do under two aspects, viz:

1st. Whether plaintiffs and their sureties are liable for the damages • claimed, contractually, under the terms of the bond.

2d. Whether plaintiffs are liable otherwise.

We solve the first question in the negative on two grounds.

1. The condition of the bond is in the following terms :

“Now, therefore, if the said Friedman Brothers (and others, naming them), shall well and truly prosecute their said appeal with effect, and shall satisfy whatever judgment may be rendered against them, or that the same shall be satisfied out of the proceeds of the sale of their estate, real and personal, if they be cast in their said appeal, then this ■ obligation to be null and void, otherwise to be and remain in full force . and effect against principal and security.”

The failure of plaintiffs to prosecute this appeal placed them in the -same position which they would have occupied had their appeal been prosecuted and resulted in a decree of tliis Court affirming the judgment. As that judgment was not against them, but was solely against-the sheriff, and as the bond did not bind the parties to satisfy any judgment against the sheriff, and as the only judgment which could have been rendered against Friedman Bros., would have been for costs-of appeal, it is manifest that, under the terms of this bond, the parties were not bound to satisfy the judgment against the sheriff.

It is possible that, under a reasonable construction of articles 571 and 579 'of the Code of Practice, the third person appealing suspensively from a judgment against a defendant might be required to condition the bond “to satisfy whatever judgment may be rendered against ” the defendant.. But such was not the bond furnished in this case.

As was said in one case, “we must take the bond as it is, not as it-might have been or as the court might have ordered it to be made.” Cartwright vs. McMillan, 3 Ann. 685.

And in another: “ We are not permitted to extend the obligation of the surety beyond what is contained in the bond itself and what the law has declared to be the legal obligation of the surety in such a case,, which is to satisfy whatever judgment may be rendered against the appellant.” Parham vs. Cobb, 9 Ann. 426.

(See erratum at beginning of volume showing that the opinion above-quoted from, though styled a dissenting opinion was, on that point, the-opinion of the Court.)

A very pertinent and weighty opinion by the Supreme Court of Maryland in a case very analogous is quoted, where the same view is taken. It is there said: “ The appellants contend that, by the failure to prosecute the appeal, the condition was broken, tho right of action thereupon accrued and that the measure of damages is the loss occasioned by the appeal. If we were at liberty to decide this case according to principles of equity, etc., we should have little hesitation in assenting to the appellant’s views; but the obligation is defined and limited by the terms of the bond and cannot be extended beyond their-legal import and effect. By the terms of the bond the obligors, bound themselves to prosecute the appeal with effect, and in tho event of failure to do so, the condition expressly declares what the obligors shall pay.” Fullerton vs. Miller, 22 Md. 1.

2. The foregoing might be sufficient on this point; but we may ex--, press, in addition, our serious doubt whether, even if the bond had bound the obligors to satisfy the judgment against the sheriff, the action of the Court in ordering the sale of the property at the demand of parties other than plaintiff, in the exercise of jurisdictional power and without objection by defendant, would not have been a vis major relieving plaintiffs and their sureties from their obligations under such, a bond.

Now on tlie question of the extra-contractual liability of Friedman Bros., the foregoing suggestion is entitled to great weight. But in addition thereto, the attempt of defendant to assimilate the liability of an unsuccessful appellant to that of a plaintiff in a wrongful attachment or other proceeding by conservatory process, cannot be sustained. The differences between them are too marked to escape notice or to, need enumeration.

The right of appeal is, as has been frequently said, a constitutional! right. Its object is to submit to the appellate tribunal the final determination of controverted rights. The position of the appellant cannot-be distinguished from that of the plaintiff in the original suit who seeks-to submit the same rights to primary judicial determination. No distinction can be made between the two, except such as the law has expressly made in the bonds required. Outside of those bonds, tlieir cases are identical, and the same conditions must exist in order to subject them to any liability outside of such bonds, viz: malice and want of probable cause.

Those conditions have no existence in this case.

We are satisfied the judgment appealed from enforced the law and awarded justice.

Judgment affirmed.


text:
    No. 1152.
    Robert G. Richardson et al. vs. Robert Richardson,—Mrs. S. F. Head, Intervenor.
    The forced heirs of a married woman have a legal right to sue the surviving lui9band for a specific amount of paraphernal funds of their deceased mother received by the father, if the latter has not been confirmed and qualified as their tutor duiing their minority. In such a case the father is their debtor under the rights of the mother, and they can enforce all her rights without recourse to an action for an account.
    APPEAL from the Fifth District Riehardson, J. Court, Parish of Ouachita.

      Potts <£• Hudson for Plaintiffs and Appellees:
    Eirst— Intervenors most take the case as they Rod it., and cannot object to the manner in ■which the suit is hronght, 20 Ann, 174; 19 L. 155; 4 N. S. 487 ; 8 R. 123; 21 Ann. 118 ; S7 Ann. 239.

      Second — -To enforce a claim for paraphernal funds against the father, inherited by a child from a deceased mother, neither a tutorship nor settlement of tutorship is necessary. 28 Ann. 830; 31 Ann.’ 533.
    Third — A suit brought by an emancipated son and daughter against their lather on account of a claim dorived as heirs of their deceased, mother is not a suit growing out of a tutorship, and where they thusjsue as heirs no tutorship nor settlement of tutorship is necessary. 31 Ann. 533 ; 28 Ann. 830.
    Rourth — The payment or receipt of an amount over $500 maybe proven by one witness. Art. 2277 (2257) O. C. applies only to contracts. 1 K. S. 416. 8 Ann. 307; 18 Ann. 210 ; 21 Ann. 54; 20 Ann.

      T. O. Benton for Defendant.

      C■ J. (& J. 8. Boatner for Intervenor and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs are einaneipaced minors,, issue of the defendant’s marriage with their deceased mother, and they seek as her heirs at law to enforce the claims of their mother for the restitution of her paraphernal funds received by the husband and converted to his own use and benefit, with a recognition of a legal mortgage on his immovable property.

He pleaded the general denial, but he makes no serious defence.

The real contest is between the plaintiff and the intervenor, who is a judgment creditor of the defendant and who resists the claim of the former, in so far as it may outrank her mortgage on the only remaining immovable property owned by the defendant.

She appeals from an adverse judgment; and she urges three grounds •of resistance to plaintiffs pretensions.

1. That their action against their father should have been for an ac■count, and not for a specific amount.

2. That the testimony offered by plaintiffs is not sufficient to make legal proof of their claim.

3. That the burden of proof was on plaintiffs to show that the funds alleged to have been received for account of his wife constituted her separate assets as being due to her before marriage.

I.

'Conceding arguendo the right of intervenor to make this point, we find that plaintiffs urge no claim against their father as tutor; the record shows that he has never been confirmed or qualified as their natural tutor.

They are only claiming the rights which they have inherited from .their mother, hence they are entitled to the same remedy which she -could invoke, if living, for the restitution of her paraphernal funds received by her husband and converted to his own use.

At lier death plaintiffs became the creditors of the surviving husband to the extent of their virile shares in the rights of their mother -against the husband, and nothing has since occurred to alter or modify .the relations which they have occupied towards their father, and quoad their claim and to the extent of their respective shares therein, their position was precisely that which their mother held before and at the time of her death.

Now we know of no law or rule of jurisprudence which would re.strict the action of the wife seeking the restitution of her paraphernal funds from her husband, to a demand for an account.

The books show that in such cases the demand has always been for a specific amount; and the right of enforcing such a demand has been ■inherited by these plaintiffs directly from their mother.

The exercise of the precise remedy herein sought has been sanctioned by this Court, and is derived from our code. C. C. Art. 945; Bridger vs. Simonton, 28 Ann. 830; Cambre vs. Grobert et al., 31 Ann. 533.

II.

As to the insufficiency of the evidence, intervenor contends that the only direct evidence of the amounts alleged to have been received by the defendant, of the time, of the mode of payment, and of the •sources consists of the uncorroborated testimony of the defendant himself, who is testifying in behalf of his children.

It is perhaps unfortunate that many of the witnesses, such as the former tutor of the wife and several of her debtors, who could have thrown abundant light on the subject, are now dead.

But nevertheless we find in the record sufficient evidence, both documentary and parol, which leaves no doubt in our minds that the defendant did at various times and in sundry amounts receive after his marriage with Fanny Gurton, in good currency, a sum aggregating $11,500, and that the whole amount was used by him as his own funds.

It would serve no useful purpose in jurisprudence to encumber this opinion with a recital in detail of the evidence which has led us to this conclusion.

III.

But the intervenor contends that the bulk of the moneys received for account of his wife by the defendant consisted of fruits of her paraphernal assets, principally the hire.of slaves, of which he had the administration, and which therefore fell in the community.

On this point the record shows substantially:

That when the marriage took place in December, 1862, the wife was 4i minor, and that her property, consisting mainly of money and slaves, was under the control of her tutor, and that very soon thereafter the husband took service in tlie Confederate army and did not return to his homo permanently until the end of the war, in 1865; and. that portions of his wife’s paraphernal assets were paid to him during-the war, but that no final account of tutorship was presented before-the month of November, 1865.

In tbe mean time the wife’s estate remained under the management and control of her former tutor, who was also her uncle, and no attempt has even been made to show that the husband ever interfered; with his wife’s chosen agent, either in the hire of her slaves or in the-investment of her funds.

Hence we conclude that the husband did not assume tbe administration of the separate estate of In's wife before the year 1865, at which time he had already received the funds which form the basis of plaintiff’s demand, and that therefore these sums were paraphernal assets of the wife. The legal mortgage securing these funds has been preserved by proper and timely inscription, and it is entitled to the rank provided for it by law.

Considering the source of intervenor’s claim, and the sacred character of defendant’s indebtedness to her, we deeply regret the loss to-which our judgment will subject her, but at the imperative command; of law the voice of equity is hushed, and judges must perform their duty without regard to consequences.

The amounts allowed plaintiffs by the district judge are correct under the evidence, and his conclusions are sustained.

Judgment affirmed.


author: Wa'ikins, J.

text:
    No. 1147.
    The State of Louisiana vs. John Keenan.
    Th© rule is tliat dying declarations are admissible if mad© under a sens© of impending dissolution, which soon thereafter transpires. 1 Gif. sec. 158; 30 Ann. 365; 31 Ann. 95; 32 Ann. 1086 ; 30 Ann. 920, State vs. Moliss.
    APPEAL from the Criminal District Court for the Parish of Orleans, Baker, J.

      M. J. Cunningham, Attorney General, and. Bionel Adams, .District-Attorney, for the State, Appellee:
    1. A dying declaration made under an immediate sense of impending dissolution is admissible in evidence. 30 Ann. 362 j 31 Ann. 95; 32 Ann. 1086; Wharton Cr. Ev. § 281.
    2.. There is no law malting it necessary for the dying man to say that he believes he will immediately die, as a condition precedent to the validity of his declaration as evidence it is sufficient if sucli belief is established by his actions and the surrounding circumstances. Wharton Cr. Ev. §§282, 284.

      Win. B. Whitaker for Defendant and Appellant:
    Declarations by the person whose death is the subject of investigation concerning the cause of death or its attendant circumstances, are admissible; provided, the court be satisfied that such declarations were made in solemn contemplation of immediately approaching death. Best Ev. § 505, n. 1; 1 G-reenl. Ev. § 156, et seq.; Whar. Horn. §§ 742-775; State vs. Cornish, 5 Harr. (Del.) 502; Bull vs. Com., 14 G-rat. (¡13; Hill vs. State, 41 Geo. 484; Dixon vs. State, 13 Ela. 636; State vs. Simon, 50 Mo. 370; People vs. Hogdon, 55 Cal. 72; Sullivan vs. Com., 93 Pa. St. 284, 296; State vs. Patterson, 45 Yt. 308; West vs. State, 7 Tex. Ct. App. 150.
    While it rests with the court to decide on the admissibility of a statement offered as a dying declaration, a strictly legal discretion must be exorcised; and if it decide for the admission of the declaration, it must be for one, or both, of two reasons:

      First. That the declarant had expressly stated his own sense of his immediately approaching death; or,

      Second. That from the testimony it is apparent that declarant must have been assured of such impending dissolution.
    1 Greenl. Ev. § 158; 1 East P. C. 354 . 1 Denis C. C. 1; Box vs. Yan Butchell, 3 Carr. & P, 493; 2 Parker C. B. 235; Bex vs. Pike, 3 Carr. & P. 598; Bex vs. Hucks, 1 Stark H. P. C. 523; 1 Phill. Ev. 235, 85; Carr. Supp, 232, 1 Arch. 449; Whar. Cr. Ev. §§ 276-281, 284; Best Ev. p. 485; Com. vs. Cooper, 5 All. 495; Montgomery vs. State, 11 Ohio, 424: Morgan vs. State, 31 l'nd. 193; People vs. Grunzig, I Parker C. C. 299; Brakefield vs. State, 1 Sueed, 215; People vs. Perry, 8 Abb (H. Y.) Prac. H. S. 27, 34; .Lewis vs. State, 9 Sm. & M. (Miss.) 115; State vs. Trivas, 32 Ann. 1086; State vs. Spencer, 30 Ann. 362; State vs. Molisse, 36 Ann. 920.
    The decision of the trial court on the matter of the admission of a statement offered as a dying declaration is proper subject for review. Whar. Cr. Ev. § 298, Com. vs. Dunan, 128 Mass. 422; Sullivan vs. Com., 93 Pa. St. 284; Donnelly vs. State, 2 Dutch. 463, 601 ; State vs. Trivas, 32 Ann. 1086.
   Tlie opinion of the Court was delivered by

Wa'ikins, J.

The accused was indicted with another for tlie murder of one John J. Madden, separately tried, and from a verdict of guilty without capital punishment,” and sentence, he has appealed.

This appeal rests upon a single hill of exceptions reserved for the accused to the admission, as evidence, of the dying declarations of the •deceased. He complains that it had not been shown, either by oral testimony of witnesses, or by tlie language of the declaration itself, or in any other w'ay, that the deceased was, before making said declaration, or at the time of making same, in contemplation of approaching or impending death.

The declaration of deceased was dictated by himself, and was reduced to writing by T. J. Mooney, recorder.

Erom the declaration itself wre gather the following statement of facts, viz: That on the 25th of June, 1884, at the hour of 2 a. si., he was shot by one of two men who were strangers to liim. He was a policeman at the time, and had previously arrested them, and they were in his custody.

This occurred in Algiers. He said he would know the men if he should see them again. The one standing by the corporal at the end of the table, he said was the tallest man. He concluded his statement bjr saying: “I make this statement to you because I have given up hopes of recovery, and believe that I am going to die.”

It further appears that from the facts summarized in the bill of exceptions, that the recorder visited the deceased during the day subsequent to the assault upon him, on which occasion he said that bethought ho would get well.

It further appears that on the following day, between 3 and 4 o’clock a. m., the recorder was again sent for, and upon his arrival he found Madden quite weak, and who, when he was questioned by the recorder as to how he felt, responded that he had given up and thought he was-a case, or that “he was gone up.”

Before proceeding to write the dying declaration, the recorder warned him to be careful as to what he should say, as he was going before his-Maker, and that if ho did not believe that he was going to die his declaration would not be worth the paper it was written on, to which Madden responded “that he did not wish to die with a lie in his mouth.”

Ho thereupon made to the recorder the statement detailed above, and he reduced it to writing as dictated by him, in the presence of witnesses.

Madden died on the day following. Prom the evidence it does not appear that his physical condition was subsequently improved, or that the patient thereafter entertained hopes of recovery.

The trial judge, in his reasons, assigned that he was satisfied from the expressions of the deceased, and his condition just prior to the declaration, that he was fully aware of his condition, and had no hope-of recovery, at the time, and admitted the evidence.

Dying declarations are those made under a consciousness of impending death, which, however, the declarant need not express in direct terms. His bodily condition and appearance; his conduct and language; as well as statements made to him by his attendants, may be considered, and his consciousness thence inferred. 12 Ann. 274, State vs. Scott.

We do not conceive it to have been necessary that the deceased should have said that he believed he would die immediately, but regará it sufficient, if the facts detailed were such as to indicate that the deceased was conscious, at the time of making his declaration, of his approaching dissolution.

To render such declarations receivable in evidence, the deceased need not have been at the time in articulo mortis. It was only necessary that same should have been made under a sense of impending dissolution, which soon thereafter occurred.

To this sense of approaching death, the law attaches the solemnity of an oath, and impresses upon a statement made under it, the character of evidence.

Of this solemnity the deceased was clearly impressed, because, when he was cautioned by the recorder as to tl’e statement he desired to make, he said that he did not wish to die with a lie upon his Ups. 30 Ann. 365, State vs. Judge Spencer; 31 Ann. 95, State vs. Daniel; 32 Ann. 1086, State vs. Trivass; 36 Ann. 920, State vs. Molisse.

The ruling of the judge a quo was correct, and the judgment appealed from is affirmed.


text:
    No. 1161.
    Wheeler & Pierson vs. G. A. Peterkin et al.
    The omission of appellant to ask for citation of appeal, and to have it served on appellee, when the order of appeal has been granted on motion in open court at a term diflerent from that on which the judgment was rendered, is fatal to the appeal, which must b dismissed.
    APPEAL from the Sixth District Court, Parish of Morehouse. Bussey, J.

      Todd & Todd for Plaintiffs and Appellants.

      0. Newton for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

The motion to dismiss this appeal must prevail.

The judgment appealed from was rendered on the 26th of May, 1885, and the order of appeal was granted on motion of appellants’ counsel in open court on the 18th of January, 1886, and at a different term of the court than that at which the judgment was rendered.

• No citation was asked by appellants and none was served on appellees. Under the circumstances a citation of appeal was as imperatively necessary to perfect the appeal as an ordinary citation is indispensable to support an ordinary action, and the absence of a citation in this case is clearly and inclusively imputable to the fault of appellants.

The ouly condition under which the necessity of a citation of appeal is obviated, is when the party who intends to appeal does so by motion in open court at the same term at which the judgment was rendered. Code of Practice, art. 573.

That provision of our Code is unambiguous and mandatory; it has uniformly been construed so as to defeat the appellant whenever he failed to ask for and to secure a citation of appeal, under an order granted either on petition in chambers or on motion in open court at a term different from that at which the judgment was rendered. Walker vs. Martolo, 16 La. 50; Bolling vs. Anderson, 10 Ann, 650; Pratt vs. Erwin, 5 Ann. 115; St. Romes vs. Sterling, 21 Ann. 277; Potier vs. Thibodaux, 21 Ann. 618; Hardy vs. Stevenson, 27 Ann. 95; Fournet vs. Van Wickle, 33 Ann. 1108.

The appeal is therefore dismissed at appellants’ costs.


text:
    No. 1162.
    Helen Stafford and Curator ad litem vs. Succession of W. S. McIntosh.

      A creditor who has an unliquidated and unacknowledged demand against a succession is not bound to procure the rendition and effect the liquidation of his claim and its recognition and enforcement by an opposition to the account, but may proceed at onco by au independent and direct action for that purpose.
    APPEAL from the Twenty-seventh District Court, Parish of Rich-land. JúlMs, J., to whom the case was referred.

      David Todd for Plaintiff and Appellant:
    Where the administrator has filed his tableau and account, any creditor not recognized therein has a right to sue the succession that owes him and have his claim recognized by judgment. 10 Ann. 224; 3 Ann. 407: 5 II. 270; O. I*. 984-G; 19 L. 441; 7 Ann. 367; 5 Arm. 709; 23 Ann. 102; 28 Ann. 322; 2 Ef. S. 659; 5 ET. S. 218; 6 2S. S. 450; 1st Bob. 389-404; 3B. 264; 9 Ann. 500.
    Such creditor has also the alternative right to oppose such tableau until his rights and claim are recognized and placed on such tableau. C. 0.1180; 8 Ann. 451; 10 Ann. 224; 10 !L. 358 ; 18 L. 264-583; 23 Ann. 528 ; 12 Ann. 517.

      JH. G. Montgomery and Doatner & Boatner on the same side.

      Wells (6 Toler for Defendant and Appellee.
   The opinion of the Court was delivered.by

Todd, J.

The plaintiff is the only issue of the marriage of J. J. C. and Margaret A. Stafford, who both died in the parish of Richland— Mrs. Stafford in 1872, and Mr. Stafford in 1876.

Shortly after the death of plaintiff’s father, Wm. S. McIntosh was appointed her tutor, and about the same time administrator of the sue-•cession of Mrs. Stafford. As administrator and tutor lie received the property of the succession, and besides that of the minor valued at •about $35,000. Part of this he caused to be sold and received the proceeds. He collected the rents and revenues, and thus many thousand ■dollars went into his hands. McIntosh continued in the control and possession of these estates till 1883, when lie died. He died without filing any account of his administration, though he left an account of his tutorship never homologated. Shortly after the death of McIntosh, David T. Chapman was appointed and qualified as administrator of his •succession. Not long after his appointment, he filed a provisional •account and tableau of debts of McIntosh’s succession. This account completely ignored the debt owing by McIntosh to the plaintiff.

Thereupon the plaintiff, having been emancipated, brought the present suit, in which she set forth in her petition at length and with great clearness, the indebtedness of McIntosh to her and the specific causes of that indebtedness; that he had gone into possession of all her property, received the fruits of it, had sold part of it and collected the pro•ceeds, and had never paid over to her or her representatives anything, mor filed any account.

The action was brought and the petition formulated to comply precisely with the letter and with the provisions of art. 986 of the C. P., ■as will be seen from a perusal of it. It reads as follows:

If the claim (claim in favor of a succession) be not liquidated, or if the curatorortestamentary executor or administrator have any objection to it, and consequently refuse to approve it, the, bearer of the evidence ■of such claim may bring his action against the curator or administrator in the ordinary manner before the court of probate where the sueces•sion was opened, or before the district court, according to the amount ■involved, and obtain judgment in the same manner as in other cases.’

The suit was, however, dismissed on an exception of no cause of •action. There are certain words qualifying the judgment that may throw some light on the reasons of the judge for his ruling — the judge .giving no reasons, at least in writing, in support of the same, and the defendant making no appearance in this Court whatever.-

The judgment reads thus: “ In this case the exception was overruled as to opposition in plaintiff’s petition to account of W. S. McIntosh, tutor to the minor, Helen Stafford, and overruled as to opposition to account of D. T. Chapman, administrator of the succession of W. S. .McIntosh, and sustained as to the demand of the plaintiff against D. J. 'Chapman, administrator.”

One cannot read the petition without being conviuced.that plaintiff’s sole object in bringing this suit was to liquidate the debt of the McIntosh succession to the Stafford succession. The suit may have intended to accomplish effectually what the judge a giio supposed, perhaps, could only have been done by oppositions to the accounts mentioned. But we find no word of opposition to the accounts in the petition, and no-mention of the existence of said accounts except by way of recital. The fact was alleged in the petition that Chapman, in his account, had ignored entirely the claims of petitioner against the succession of McIntosh, and the administrator was ashed to be cited, and was cited, and judgment prayed for against the McIntosh succession for the sums-therein mentioned, amounting to some thirty thousand dollars.

We regard the petition as inaugurating an independent suit for the-sole purpose of determining the indebtedness. It may be from the fact that it was asked that these accounts be not homologated until the plaintiff’s claim could be liquidated by means of this suit, that it miglithave been contemplated by the plaintiff after her claim was liquidated-that then she might, if to her advantage, compel the administrator,. Chapman, to recognize the claim and place it among the debts of the-succession. But the first thing to be done by the plaintiff was to have-her claim liquidated, and that she was proceeding to do by her suit when it was improperly dismissed.

It might be inferred from the language of this decree that the judge-was of opinion that it was the duty of Chapman, as the legal representative of W. S.McIntosh, administrator, tohavefiledtheaccountof administration of the Stafford succession that McIntosh had failed to file. If' so it was error, for it was not incumbent upon him to file such account,, and he could not have been compelled to do it. He had nothing to do with Mrs. Stafford’s succession. 1st Rob. 404; 12 Ann. 717.

We are not to be understood as meaning that settlements of the kind! involved in this suit may not be effected by means of opposition, but however that may be, the law reserves to parties a special action to-accomplish this purpose. And in this case it was not only legal but there was a marked propriety in resorting to this separate and independent suit.' As stated, Chapman was doubtless an entire stranger to-all the transactions between McIntosh and the Stafford succession and those also relating to the tutorship of the plaintiff. In all probability it would have been utterly impossible for Chapman to have prepared anything like an accurate or correct account of McIntosh’s gestión with-, those estates. Therefore, the mode of proceeding adopted was highly favorable to the McIntosh succession, inasmuch as its administrator-was accurately and explicitly informed of all the causes out of which it was charged that McIntosh’s liability grew out of, and of all the facts surrounding the whole affair, whereby Chapman, administrator, was afforded the amplest opportunity for investigating and resisting, if he chose, the matters urged against him.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed that the exception of no cause of action-be and the same is hereby overruled and the cause remanded and reinstated in its entirety, to be proceeded with according to law, at the costs of the defendant in both courts.