text:
    No. 1360.
    Mrs. Gracieuse Provost vs. Morgan’s Louisiana & Texas Railroad Company et als.
    1. In case an indi vidual makes a gratuitous donation oí ariglit of tvay to an alleged corporation, under the belief and written stipulation that a railroad is to be constructed thereon, and from which her other property is to be enhanced in value, when in fact there was no such corporation, then or afterward in existence, and no such railroad, then or afterward constructed, the act of donation may be annulled and the property recovered by the donor.
    '2. In case such property is conveyed to another corporation by the donee, it will be bound by the recitals contained in the deed of its author, to the effect that if said road is not built, said land is to revert to tile donor.
    -3. Such an act having been superinduced by the misrepresentations of the donee, no estoppel arises on the act or others of contemporaneous date. The same rule applies with equal force to parties and privies.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      W. J. Burke and T. D. Foster for Plaintiff an I Appellee:
    'When defendants are alleged to have combined to commit a tort, there is no misjoinder. Nor when all parties to an act of sale and transfer, sought to set aside, are made parties to the suit.
    The call of a co-defendant in warranty by a defendant is not litis penitence. 21 An. 121.
    -One who has dealt with a company as a corporation may, according to circumstances, be estopped from denying its corporate existence. But there is no estoppel when the recognition has been obtained by false representations, nor when the person has not been misled, and has not acted on the representation; nor when he knew the truth; nor when he is an innocent party; nor when the fact is equally open to liis knowledge; third parties, only when innocent and) ignorant of the fact, if at all, can plead estoppel. Am. & En. Kn. of Law, page-30; Bigelow, p. 255, 345, 431, 467, 437; 33 An. 1194; 38 An. 102; 39 An. 445; Wharton on Evidence, Secs. 1100-1155.
    It is essential that an act of incorporation be signed as well as written. The approval of the District Attorney can not create a charter. Under It. S. 683 an act-must be presented to him, if his approval be requisite.
    A non-existent or imaginary corporation can not make a contract. Morawetz on Corporations, Secs. 137-139.
    Before a corporation can be formed, or go into operation* the capital agreed on must be subscribed. Morawetz, Sees. 128-276.
    A grant of passage on condition that a road be built, is null if the road is not built.
    Exceptions referred to the merits and special pleas, admit all allegations they do not deny. 4 N. S. 615; 2 M. 36; 5N.S. 36-63; 511.63; U. 467 ; 9 R. 418; 19 L. 90; 1 An. 336; 14 An.137; 18 An. 161; 11 An. 103; 9 An. 528; 28 An. 430; 31 An. 433.
    One acting in good faith, or not, as agent of another without authority is liable,, personally, for his acts. A fortiori when he pretends to represent a non-existent or imaginary person or corporation. Story on Agency, Secs. 264-286.
    Eor every actionable injury there is an absolute right to damages which can not be controverted.
    Though the act be beneficial, it will still be injurious if it violates a legal right. Punitory damages may be accorded, especially if the act be wilful. Sutherland* Yol. 2, pp. 9,10,106; Yol. 3, p. 364; Am. & Eng. En. of Law, Yol. 5, p. 21. Notes 1 and 2; p. 22, note 1; 12 M. 296; 14 An. 281; 19 An. 362.
    The opinion of the judge a quo, who has seen and hoard the witnesses, is of groat weight. II. p. 92 (b), Nos. 1,19, 20; 13 La. 412-; 39 An. 610.
    D. Gaffery for Defendants and Appellants:
    1. Where one stands by and sees a railroad company occupy and use his premises, for construction of a railroad, without remonstrance or complaint, he will be held to have acquiesced therein; much less can ho sue for damages for such construction. 35 An. 924; 39 An. 827. .
    2. Whore one contracts with a body corporate he will be held to have acknowledged corporate existence, unless corporate existence is the essence of the contract.
    3. Railroads may ho owned, contracted and operated by individuals, and when a right of way is granted to a railroad corporation the essence of the grant is the railroad construction, and not the corporation.
    4. Where a party by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and induces him to act on that belief* so as to change his position, he will be estopped to aver against the latter a different state of things. Bigelow, 3d Ed., 79 (IXXIX.)
    Where one complains of a matter as causing him damage, and yet refuses to permit the party, alleged to be the author of the damage, to remove it, or to place things as they wore, before the damaging act arose* he will be debarred from claiming compensation. Volenti non fit injuria.

   The opinion of the court was delivered by

Watkins, J.

On the 25th of April, 1888, the plaintiff donated to. the Jeanerette & Oypremort Bailroad Company, of which George Whitworth claimed to be president, a strip of land thirty-five feet in width, extending through her property, to be used by said company as a right of way for their track and other purposes connected with building or maintaining their road. On the 12th of October, subsequently, said Whitworth, as president, transferred all of the rights of the Jeanerette & Cypremort Company under said donation to the Morgan Company, and the latter commenced, soon afterward, to excavate and build a switch thereon.

Soon afterward, this suit was brought for the purpose of annulling sáid donation and sale, on the ground that, at the time of the execution of the donation of the right of way, she was under the impression, and by said Whitworth had been led to believe, that the Jeanerette & Cypremort Railroad Company was a duly organized and existing corporation, when, in point of fact, there was no such corporation in existence at that time, or since. She prays judgment revoking and annulling said donation and sale; that she be restored to the possession of the property; that the defendants be sentenced to remove therefrom all of the constructions and works thereon erected; that they be decreed to be co-trespassers on her property, and, as such, condemned to pay her $8250 as damages for their trespass and wrongful entry, and $10 per day during their continued wrongful occupancy, subsequent to the 8th of November, 1888, when suit was filed.

The principal defence of the Morgan Company is an estoppel, grounded on the allegation that, had plaintiff not dealt with the Jeanerette & Cypremort Company, granting it the right of way, the work complained of would not have been done, which it values at $1000, and demands judgment in reconvention against the plaintiff; and calls in warranty both Whitworth and the Jeanerette & Oypremort Company, and demands like judgment against them as shall be rendered against it. In limine the defendants and warrantor, Whit-worth, tendered a variety of dilatory pleas — none of which are insisted upon here — and finally plead, first, estoppel, on the ground that the plaintiffi had sold, without solicitation, town lots to the Jeanerette & Cypremort Company, and had thereby gamed certain advantages, and in each deed of conveyance had recognized that company’s corporate existence. He also plead that plaintiff had stood by and seen the work performed by the Morgan Company, and thus sanctioned it, and has since claimed it. The alleged Jeanerette & Cypremort Company is in court on similar pleas and issues. Subsequently Whitworth personally, and as president, plead a general denial, and set up the aforementioned contracts, and alleged' that plaintiff sold the right of way to induce the company to purchase said lots, and he denies any and all damages.

The judgment rendered in the premises, annulled the acts referred to, touching the right of way, and declared the strip of land donated to belong to the plaintiff, on the ground that the Jeanerette & Oypremort Company had never been incorporated; ordered the Morgan Company to vacate the premises and restore same to the plaintiff; and condemned Whitworth personally and the Morgan Company in solido to pay plaintiff the sum of $500 as damages, and $50 per annum from the 8th of November, 1888, until the property is surrendered into plaintiff’s possession.

There was judgment in favor of the Morgan Company, on its call in warranty. Each of the defendants have appealed. There is no claim made in any of the defendant’s answers, or proof adduced on the trial, to the effect that there ever was such a corporation in existence as the Jeanerette & Cypremort Railroad Company. The main reliance of all the defendants is on the estoppel urged against the plaintiff. But the evidence conclusively proves that, in executing the acts of donation and sale aforesaid — and they are all of contemporaneous dates, or very nearly so — she was by Whitworth erroneously induced to believe that the company was duly incorporated and organized, and that he was its president, he well knowing that such was not the case. It is also 'in evidence that the plaintiff would not have made the donation if she had known the truth, as her inducement to make the grant was the building of the road. As the company had no existence, certainly the president — or the person alleging himself to be such — can not avail himself of his own misrepresentations to defeat the plaintiff’s action, or employ the fruits thereof as an estoppel against her demand for restitution of the property. Bigelow on Estoppel, p. 225.

As in favor of one who knew the truth, an estoppel is unavailing. 38 An. 1194; 88 An. 102; 39 An. 443.

The proof furthur shows that the plaintiff did not remain silent, but, shortly after the Morgan Company began work, she entered a formal protest, and it not being heeded, she entered suit, the citation being served a few days subsequently to the transfer.

The two sales that plaintiff made to the Jeanerette & Oypremort Company were executed under the effect of the same misrepresentations as the donation of the right of way, and are governed by the same rule of interpretation as it is.

The Morgan Company occupies just the same situation as Whit-worth did, for. in the deed granting to the Jeanerette & Oypremort Company the right of way, the following recital occurs, viz:

“Whereas, the Jeanerette & Oypremort Railroad Company * * are about commencing the construction of a railroad from Jeanerette to Week’s Island, * * * and the said road is to pass through my property, and it is believed (that) it will increase its value; in consideration thereof, and of the payment tome of $1, * * * Thereby sell, transfer,” etc.

And it concludes thus:

“If said road is not built, said land is to revert to me.”

It was this title that the alleged president of the Jeanerette & Oypremort Company assumed to convey to the Morgan Company, without first perfecting its organization, or doing any act looking to the construction of the contemplated railroad, which the plaintiff expected to improve the value of the remaining property. The Morgan Company is held bound to know the recitals contained in the written title of its author.

In disregard of them, it went to work immediately after it had taken title, notwithstanding its author’s obligation to build a railroad from Jeanerette to Week’s Island, and commenced the building of a switch on the right of way.

The acts and deeds of the plaintiff to the vendor of the Morgan Company can not any more avail the latter than the former. All the defendants possessed full knowledge of all the facts, and none of them were deceived, or injured, or induced to alter their previous positions on account of them.

Not only does the proof show that no attempt was ever made to build the railroad, but it shows also that no charter was ever signed, no organization ever effected, and no part of the capital stock paid in.

It is a self-evident proposition that a contract can. not be made with a corporation which has no existence at the time. Morawetz on Corporations, Secs. 137, 139.

Not only was such the condition of things in 1883, when the acts in question were executed, but it continued to exist up to and in-elusive of the year 1889, when the trial of this cause occurred. No railroad has yet been commenced, and no corporation has yet been organized. Hence the Morgan Company acquired no title or right of use, except such as were subject to and subordinated by the express terms of the original grant, and the judgment decreeing plaintiff’s ownership and right to possession is manifestly correct.

The preceding statement demonstrates the correctness of the judgment against Whitworth personally; for inasmuch as he did not represent the corporation, which he assumed to represent, his act bound him in his individual capacity. He bound himself personally by attempting to personate a non-existent corporation.

But we do not regard the proof sufficient to sustain the damages that are awarded the plaintiff in the judgment appealed from. The Morgan Company has dismantled its switch and sidings, and seems to have used an honest effort to restore the status quo. The only damage plaintiff appears to have suffered is from a few slight excavations on her land for a distance of about one hundred yards, and we think $250 would be an ample sum bo remunerate her for any loss she may have sustained on that account, and to that amount the judgment should be reduced and affirmed.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing the amount of damages to $250, and that, as thus amended, same be affirmed, the plaintiff and appellee to be taxed with the cost of appeal.

Breaux, J. recused as having been of counsel.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 1355.
    The State of Louisiana vs. Thomas Hunter.
    In an indictment for shooting at while lying in wait, with intent to murder, where the words “ wilfully, feloniously and of malice aforethought,” are used to describe the intent, it is not necessary to repeat them before the words “ with the intent to murder,” etc. If the words “wilfully and feloniously” only arc repeated, omitting “ malice aforethought,” this will not vitiate the indictment, as the repetition of the words is unnecessary.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Rost, J.

      Oervais Léohe, District Attorney, J. A. Oaudet and J. N. Ogden íot the State, Appellee.

      Chas. A. Baquié for Defendant and Appellant:
    1. In an indictment for shooting (while lying- in wait or otherwise), with intent to commit murder, the intent must be described in terms which would be sufficient, in case the act had resulted in death, to sustain an indictment for murder. State vs. Green, 36 An. 99, and authorities there cited and reviewed.
    5!. The qualification of the act of shooting as being “felonious wilful and with malice aforethought,” is surplusage, and does not supply the omission, or satisfy the law.
    3. The qualification of the intent as “felonious” merely, without the addition of “ wilfully and of malice aforethought” describes only an intent to commit manslaughter, and not murder. R. S. 1U48; Arch. Crim. Plead., p. 285.
   The opinion of the court .was delivered by

McEnery, J.

The defendant was indicted, tried and convicted under Sec. 795 of the Revised Statutes, as amended by Act No. 24 ■of 1882.

He filed a motion in arrest of judgment as follows: That the intent to commit, which is the essence of the offence charged, is not laid as having been wilful, felonious and with malice aforethought as .required by law.”

The indictment charges the offence as follows: That one Thomas Hunter, late of the parish of St. John the Baptist, on or about the 23d day of March, in the year of our Lord one thousand eight hundred and ninety, with force and arms, in the parish of St. John the Baptist aforesaid, and within the jurisdiction of the Twenty-Sixth Judicial District Court of Louisiana, in and for the parish of St. John the Baptist aforesaid, did feloniously, wilfully and of malice aforethought, whilst lying in wait with a dangerous weapon, to-wit, a shot gun, wilfully shoot one Alexander Davant, with the felonious intent then and there and thereby to kill and murder him, the said Alexander Davant, contrary to the form of the statute of the State of Louisiana, in such case made and provided, and against the peace and dignity of the State.”

This charge and description of the offence in the indictment is amply sufficient. State vs. Humphries, 35 An. 966.

The accused contends that, after the description of the offence in the first part of the charge, it is qualified and restricted after the description of the weapon used, to a wilful and felonious intent, omitting the words with malice aforethought. These words — wilful ■and felonious — could -with propriety have been omitted from that portion of the indictment. It was unnecessary to use them, and' they are mere surplusage. Omitted from the indictment, the charge will read: * * * “ did feloniously, wilfully, and of malice aforethought, whilst lying in wait with a dangerous weapon, to-wit,, a shot gun, shoot one Alexander Davant, with the intent then and there and thereby to kill and murder him, the said Alexander Davant,” etc. This charge is identical with that in the case of State vs. Humphries referred to.

Judgment affirmed.


author: MoEnery, J.

text:
    No. 1362.
    Wm. R. Archer et al. vs. Widow A. Daniels.
    In tlie absence of satisfactory evidence on a pivotal question of fact, the ease will be remanded, in furtherance of the ends of justice, for proof on the material, point.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Foster & Mentz for Plaintiffs and Appellants:
    The writ of injunction must be granted “when the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment.” C. P., Art. 298, Sec. 5.
    When one invades the real rights of another by placing apermanent barrier against the enjoyment of a servitude, as of drain or passage, by the erection of a dam, a fence, etc., the writ of injunction in the mandatory and remedial form, ordering the removal and destruction of such barrier, is the proper remedy. State ex rel. Yale et als. vs. Duffel, Judge, etc., 41 An. 516.

    The neighborhood of estates is not an essential condition to the servitude of drain, nor is it necessary that the estates be contiguous; it suffices that they be sufficiently near for one to derive benefit from the servitude on the other. C. C. Art. OBI.

      Foster & Broussard, for Defendant and Appellee,
    cited: C. C., Arts. 783, 820 and 821; 39 An. 210; 34 An. 938; 7 An. 292.
   The opinion of the court was delivered by

MoEnery, J.

In his reasons for judgment for the defendant in this ease, the District Judge says:

“The witnesses in the ease are numerous, their testimony is strangely conflicting and contradictory, the record is voluminous. * * * * As is usual, in matters of this sort, some acrimony and animosity is manifested, and this conflicting testimony of men of equal or surely nearly equal credibility induces me and forces me, in order 'to reach the real facts which must govern the case, to seek assistance from, and mainly rely on, those witnesses who, under orders of this court, and in a disinterested manner, have by means, the correctness and precision of which can not be and were not questioned, mathematically solved most of the vexed questions in this suit.”

We have found the same contradictory statements in the testimony of the witnesses, but we have not been able to solve the question at issue by aid of the maps and surveys accompanying the record. They do not afford us that information which we desire in order to intelligently render a judgment in the case.

Two surveys, made by different surveyors, are in the record, which . contradict each other.

We find it necessary to remand the case for an accurate survey. It is therefore ordered that this case be remanded for the sole purpose of an accurate surface land survey under the order of the court, of which due notice, according to law, is to be given to plaintiffs and defendant, for the purpose of showing whether or not the water which rests on plaintiffs’ land flows in the direction and through the drain closed by defendant and thence to its outlet, said survey to be made by a third competent surveyor.

Breaux, J. recuses himself.


author: Breaux, J.

text:
    No. 1356.
    The State of Louisiana vs. Jacob Prince.
    1. An information is not bad which contains two counts, charging* the accused in one with severing certain property from the soil of another person, and in the other count with stealing said property. The two offences may he charged in the same information, in two counts.
    2. Property cut down and detached, if removed either by the accused or by another f and it be left in this detached condition, it Ilion may become the subject of larceny.

      3. The name and the initials of the owner of the property are suilicient, and the fact that the surname, although that of a woman, is not written in full, will not vitiate the verdict.

      4. The allegation having been made in the information that the accused cut down trees on the lands of an owner whose name was given, there was no necessity to describe the land in order to enable the prosecuting officer to prove up the offence charged.

      5. To convict a party of having cut timber on the land of another, in violation of law, it must appear that the act was done knowingly and wilfully, and not through mistake or accident. Instruction to the jury to that effect, although requested, was not given. It should have been given. The case will therefore be remanded for a new trial.

      A The imprisonment, in default of the payment of the fine, can not exceed one year. The court having sentenced the accused to remain in jail until payment of the fine, and not having limited the time, the sentence is illegal and void. The case is remanded to be proceeded with in accordance with the views expressed in the decision.
    APPEAL from the Twenty-Sixth District Court, Parish of St. John the Baptist. Rost, J.

      Gervais Léche, District Attorney, Chas. A. Baquié and Geo. L. Bright for the State, Appellee:
    1. Two distinct offences may be charged in thesame information, provided they are charged in separate counts. Bishop Orim. Prac.,Sec. 189e£$e<z.; 81 An. 487; 33 An. 1216; 35 An. 53; 39 An. 960 j 38 An. 91.

      % Nor is iteven necessary that they'should be of the same class in order to justify their location in the same indictment (information), provided each is placed in a. separate cotmt. This is no longer an open question. 30 An. 61; 32 An. 812; 85 An. 53, State vs. Gilkie; 37 An. 853; 33 An. 1146; 39 An. 959; 38 An. 92. And more especially is it so when the two distinct offences grow out of thesame act, the same transaction. 38 An. 91; 37 An. 382; 89 An. 811, 959.

      3. An information charging a statutory offence is sufficient if in the terms of the statute. 39 An. 986; 40 An. 170.
    4. Oomplaint that two repugnant counts are contained in the same information, or that the information is defective for duplicity or uncertainty, must be urged in a motion to quash.
    i>. If the count shows a crime, though defectively, so as to be bad on demurrer, it is good after verdict. Knoblock Orim. Dig., 30.
    6. Formal defects in the pleadings, as the imperfectstatoment of a cause of action, the omission of certain formal allegations, are cured bya general verdict.
    7. A defect in the pleading, whether of substance or of form, which would have been fatal on demurrer, is cured by verdict, if the.issue joined be such as necessarily required on the trial, proofs of facts defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict. Profiat.on Jury Trials, Sec. 419.

      3. The rule is that an inaccurate averment is cured by verdict. Heard Orim. rids., 313.

      •i). The charges of trespass by cutting timber (R. S. 817), and larceny of the same timber, growing out of thesame transaction, may be charged in thesame information when charged in separate counts.

      10. In most of the States it has been held that even felonies and misdemeanors may be properly joined when relating to the same subject matter. The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment contains charges which are actually distinct, and which grow out of different transactions. 8 An. 109,114; 4 An. 434; 37 An. 382; 39 An. 959, and authorities there cited.
    11. A new trial will-be refused unless it be shown that injustice has been done to the accused. 30 An. 1170.
    The Supreme Court will grant new trials in criminal cases, but only on pure questions of law. 30 An. 1323.
    12. .A large discretion is entrusted to the lower court in the matter of grantingnew trials, which will not be interfered with except for grave reasons. If the ground for a new trial be the insufficiency of the evidence to convict, the Supreme Court will not consider it, that being a question for the jury alone and exclusively. 35 An. 96.
    New trials in criminal cases are not grantable for newly discovered evidence if it be only cumulative. 36 An. 709.
    Nor when the accused consented to go to trial without the witnesses whose evidence he pretends to have newly discovered, when the same witnesses had been regularly summoned in his behalf, were called in court and failed to answer. The evidence was known to him. 36 An. 923, 980.
    13. Under Secs. 2224, 2225, of the Itevised Statutes of. the United States, any copy of a plot of survey or transcript from the records of the office of Surveyor General of Louisiana, duly certified by him, is admissible in evidence in all the courts of the United States and the Territories.

      Morris Marks, P. E. EdHngton and James V. Ghenet for Defendant and Appellant:
    On assignment of errors and motion in arrest of judgment.
    1. Sec. 817,E. S., 1870, reads as follows: “'Whoever shall cut, pull down, burn, destroy or carry away any tree, wood or timber growing or lying on the land of another, or cause the same to be done, without the consent of the owner or legal possessor, on conviction shall pay a fine of not less than $5 nor more than $500, one-third for the benefit of the owner or legal possessor of the land, one-third for the benefit of the parish, and one-third to the District Attorney. Nothing contained in this section shall take away or impair the right to damages or other legal remedy which the party injured may now have under the laws of the State.'
    The law of larceny is Sec. 812, li. S., La., 1870, and Act 1874, No. 124, p. 221, and is with us the common law larceny (excepting where changed by statute), and is defined by us as at common law. There are many other laws in this State providing for statutory stealings, carrying away or appropriating the property of another, such as horse stealing, stealing cotton (Act 21, 1888), stealing public records, etc. Sec. 873, K. S., Act 1870, p. 49.
    Whoever cuts down a tree, or causes the tree to be cut down, and then carries away the tree, growing or lying on the land of another, or causes the same to be done without the consent of the owner or legal possessor, violates but one criminal statute of Louisiana, and if convicted of both, the “cutting down of the tree” and “the carrying away of the tree,” can be fined not exceeding $500, and in default of payment imprisoned not more than one year. Sec. 980, R. S., 1870* Stealing, taking or carrying away such a tree, or wood, or timber, under See* 817, R. S., is no longer larceny in this State, but a separate'statutory offence, not a felony, but a simple misdemeanor, for the asportation of the property mentioned in Sec. 817, R. S. The law of larceny is so far repealed, both said laws in this particular being repugnant to and iii conflict with each other. Mr. Bishop’s Statutory Crimes, 2d Ed., 1803, par. 174, p. 163, says: “Because of the different natures under the common law rules of felony and misdemeanor, their different punishments and diverse mode of proceedings against the offender, the same act can not be both the one and the other. Therefore, if a statute elevates to a felony what before was a misdemeanor, or creates a misdemeanor of what was before a felony, the old law is gone by reason of the repugnance, and the offender can be indicted only under the new,” and authorities there cited. Provisions in irreconcilable repugnance can not stand together. Either all or part, as the particular instance may require, will be held void. Bishop’s Statutory Crimes, par. 41, p. 42.
    There can not bo two different punishments for the same offence. This results from the single rule of repugnance. Bishop’s Statutory (’rimes, par. 157-158.
    Tlic law of larceny to the extent of the conflict with Sec. 817, It. 8., is abrogated. Bishop’s Statutory Crimes, par. 165-166.
    Two different punishments for precisely the same offence, with no Variation# in its elements and no modifying discretion in the court, can not, in the nature of things, subsist together. The new punishment-repeals the old by force of the repugnance. Bishop’s Statutory Crimes, par. 168, p. 158.
    The rule (State vs. Cook, 7 So. Rep., p. 65, No-. 3) is that a felony and misdemeanor forming part of the same transactions are kindred offences, belonging to the same generic class, may be joined; also, where the misdemeanor is of the nature of a corollary to the felony (W., Crim. Pldgs., 9th IOd.,par. 291); but there is no rule that two repugnant counts of a felony and misdemeanor can stand together, and particularly where the averments in the felony count constitute an offence provided for in the statute creating and defining the misdemeanor. 2. Judgment will be arrested on a general verdict of guilty, where counts are' joined for offences which arc repugnant. “In such case there is nothing to indicate on what the verdict went.” Tobin vs. People, 104 Til. 565; Wharton’s Crim. Proc., 9th Ed., par. 787, note.
    When counts are repugnant, a general verdict can not bo sustained, nor can judgment bo entered on cither count. Wharton’s Crim. Proo. 740; Com. vs. Jloskins, 128 Mass. 60; United States vs. Malone, 29 Blatch. 137.
    It has been held that a nolle prosequi, after verdict on one of two repugnant counts on which the verdict is general, does not cure the .defect. Wharton’ Crim. Proc., par. 737; Com. vs. Jloskins, 128 Mass. 60.
    There must in any view be a reversal when evidence is admitted which is admissible only under a bad count. Wharton’s Crim. Proc., par. 740. and authorities cited.
    Where evidence calculated to influence the jury on the good count, but inadmissible under that count, was admitted under the bad count after a general verdict of guilty, there should be a new trial; or, after a judgment on such verdict, there should be a reversal; the reason for such action being that the result was reached by the introduction of a wrongful element. Wharton’s Crim. Bldg., page 537, par. 771.
    A bad count can be disposed of by nolle prosequi, but it can not be passed oyer by the sentencing court if the record does not show that evidence inadmissible under the good count was admitted under the bad. Logically, it is true, a single bad count vitiates the verdict, since it is impossible to exclude the hypothesis on the bare record that it was on that count that the verdict was based. Wharton’s Crim. Proc., par. 908.
    The imprisonment allowed in default of the payment of a fine can not exceed, one year. R. 8. La., See. 980; State vs. Butman, 15 An. 166; 14 An. 785; State vs. Markham, 15 An. 498; 36 An. 294.
    An indictment under a statute ought, with certainty and precision, charge defendant with having committed or omitted the acts under the circumstances, and with the intent mentioned in the statute. If the facts alleged do not make out the ease, the indictment is defective. State ys. Stiles, 5 An. 324 ; 33 An. 1217, 1218; 40 An. 744.
    Where the indictment under See. 817 fails to give the name of the owner of the land, or the name of the .legal possessor, hut charges with uncertainty, conjunctively and not disjunctively, neither with certainty as to one or the other, such indictment or counts therein are defective in substance. 21 An. 347; 4 An. 32; 15 An. 498; 11 An. 648; Wharton's Crim. Pldgs., pars. 162, 228,161,163.
    The description of the “trees, wood and timber,” in both counts of the information, is insufficient, and judgment should be arrested. State vs. Hoyor, 40 An. 744; AYharton’s Crim. Pldgs., 9th lid.,par. 206.
    It is not allowable to plead the offences conjunctively when repugnant. Wharton's Crim. Pdgs., par. 163, and authorities there cited.
    The valuation can only be a collective or lumping one where the articles or property is properly described. AVharton’s Crim. Pldgs., par. 217-206; 40 An. 744. A variance or an omission of the name of the person aggrieved is much more serious than a mistake in the name of the defendant. The former will be ground for arresting judgment when the error appears in the record. AVharton’s Crim. Proc., par. 116.
    As to description of land on which timber has been cut, or destroyed, or removed for sale, the law requires that the indictment or information must allege the township in which said land iu situated. Sec. 820, R. S. La., 1870; AVharton’s Crim. Pldgs., par. 145.
   The opinion of the court Avas delivered by

Breaux, J.

An information was filed against the defendant, charging him in one count with cutting, pulling down, and destroying, or causing to be cut, pulled down and destroyed, cypress trees, wood and timber, growing and lying on the land of one G. L. Leonhard, Avithout the consent of the oAvner or legal possessor.

In the second count it is charged that (after and at the time of the cutting, pulling down and destroying the said timber) he did steal, take and carry away cypress trees, Avood and timber, the property of the said G.'L. Leonard, of the value of $4000.

He was found guilty of both charges.

A motion for a new trial was filed and denied.

A motion in arrest of judgment Avas afterward filed.

The first count was declared legal and in form.

The motion in so far as relates to the second count was granted.

The accused, under the first count, was sentenced to pay a fine of |500 and the costs of the prosecution, and to stand committed until the fine and costs are paid.

He appeals from this sentence.

The State appeals from the judgment, declaring the second count illegal and null.

In support of his assignment of errors and of his motion in arrest of judgment, the defendant urges that the information charges the commission of two offences repugnant to each other and which can not be presented in two counts of an information: that they are dependent on each other and grow out of the same acts.

That the taking or carrying away such a tree, or wood, or timber, under Sec. 817, R. S., is no longer a larceny in Louisiana, but a separate statutory offence, not a felony, but a simple misdemeanor.

It is.also contended that the name of the owner of the land from which the trees were taken is not given.

Also, that the land upon which the trespass was committed is not described, nor the value of the trees given.

Lastly, it is urged on the part of the accused that the court was requested to instruct the jury that to subject a party to the penalty prescribed for cutting timber and committing the wrong charged, it must appear that the act was done knowingly, and not through mistake or accident.

A bill of exception was reserved to the court’s ruling in thus refusing to charge.

We will dispose of those grounds in the order presented.

With reference to the first ground, that is, that the taking or carrying away a tree, wood or timber, under Section 817, R. S., is no longer a larceny but a separate statutory offence.

We conclude that if the premises of defendants’ counsel be admitted as correct, his conclusions also will prove equally as correct.

But he chooses to consider acts as continuous and uninterrupted-when they are not necessarily continuous and uninterrupted.

It is undeniable that whatever is attached to the soil is not, when so attached, the subject of larceny. But when not so attached,'it may become the subject of larceny.

To have the character of personality it must be detached. It must be removed from its original seat, and must be left in the detached state.

If removed either by the accused or by another, and it be left in this detached condition, it then may become the subject of larceny. Wharton Grim. Law, p. 868.

The word “ after” is alleged in the second count of the information. The words “at the time,” also alleged, do not preclude the possibility of concluding that larceny was committed “after” as alleged.

Section 817, R. S., applies when the property is not left in a detached condition prior to the larceny.

The law in relation to larceny applies when the property stolen had been left in a detached state after the cutting down. The counts are not repugnant to each other, and may be joined in an information.

“ An information is not bad because it contains two counts- charging the accused with severing certain property from the soil of another person, and in the other with stealing said property. The two offences may be charged in the same information.” State vs. Sheppard, 33 An. 1216.

The defendant next contends that the name of the owner of the land is not given.

G. L. Leonard, the name of the alleged owner, is sufficiently given. Whether Mr., Mrs., or Miss, the accused is placed on his defence. “ The name of the owner designated by initials does not vitiate the information.” State vs. Vanderlip, 4 An. 444.

With reference to the want of description of the land from which the trees were taken of which the accused persistently complains.

The description need not be given with the particularity required in a civil suit.

The statute does not require that the township or section be given.

The accused is charged with having committed the offence in the parish of St. John the Baptist, “in and for said parish then and there being.”

The requirement of the statute, in this respect, is complied with. State vs. Robenker, 31 An. 652.

In the order of the grounds presented by the accused we note that it is contended the value of the trees is not alleged.

It is alleged in the second count of the information.

The defendant urges upon our attention the refusal to charge as requested with reference to error or inadvertence (should the act charged he owing to error or inadvertence).

The refusal is not explained nor is there any reason given.

The defendant has a right to a full statement, and the possibility that by the refusal to charge as requested, the jury fell into error is sufficient reason for reversal of the judgment and sentence of the court.

Lastly, it is contended that the sentence of the court is indefinite as to the time the accused should remain incarcerated if he does not pay tlie fine and the costs.

The sentence reads: “ He is hereby condemned to paya fine of five hundred dollars and the costs of this prosecution, and that he .stand committed until said fine and cost be paid.”

The sentence should have limited the time the prisoner was to remain imprisoned.

It is, therefore, ordered, adjudged and decreed that the verdict, judgment and' sentence be annulled and set aside, and that this case he remanded to the lower court for further proceedings in accordance with the views herein expressed.


text:
    No. 1361.
    Robert T. Hamilton and Wife vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    1. In running a train backward through streets the engineer should see that the brakeman is at his post and keeps a lookout on the track to warn him in case of danger. It is the duty of the fireman to ring the bell1 continually while passing through a town or village.

      t. If an accident happens while thus running through streets, and one of these three men is not immediately at his post, although near it, gives good cause for examination and close investigation.
    8. d'he accident was not occasioned by recklessness and wrong intention arising in malice and to evil disregard of the rights of others. Punitive damages can not be recovered. The injury which will justify the allowing of punitive damages is a personal right which does not survive in the parent.

      i. Infants have legal rights, distinct from their parents, which can be judicially asserted in suits in their behalf. After death the right to compensatory damages survives in the parent, who can bring suit to recover.

      .5. Those damages for which compensation can he allowed are settled by jurisprudence. Unless such damages are proved they can not be allowed.
    •6. The suit having been instituted to recover punitive damages, damages can not be allowed for a larger amount than fixed in the decree of the court.
    •7. In the exercise of the court’s equity powers, nominal damages are allowed under the circumstances. The father had cause to seek judicial investigation into the. accident which resulted in the death of his child.
    APPEAL from the Nineteenth District Oonrt, Parish of St. Mary. Allen, J.

      Foster & Mentz for Plaintiffs and Appellees:
    Though a child of tender years be upon a railroad track, through the fault or negligence of his parents, and so be improperly there, yet if he be injured through the negligence of defendant, he is not precluded from his redress. Thompson on Negligence, p. 1129.
    If the defendant know that such child is on the highway, he is hound to a proportionate degree of watchfulness — to the utmost circumspection. Th. 1129, Boland . ys. Misssouri, etc., R. R. Co., 36 Mo. 484-490.
    What would be hut ordinary negligence in regard to one whom the defendant sup - poses to be a person of full age and capacity, would be gross neglect as to a ' child, or one known to be incapable of escaping danger. Th. 1129; Am. Big. An., Yol. 1, p. 919, No. 95.
    In such a case great caro is not expected of the child; -all that is required from a person injured is care and watchfulness according to his capacity. Th. 1139.
    .But a railroad company in such case is bound to the utmost circumspection. Th. 1189.
    If a child enter upon a dangerous locality, he can recover if the defendant he negligent. Th. 1146, 1187.
    The ease of Hartfield vs. Roper (Th. 1121) laid down the proposition that when a child not possessing sufficient discretion to avoid danger is permitted to be on a public highway, with no one to guard him, the defendant is not liable unless the injury was voluntary or the negligence was gross.
    But by later cases this doctrine is regarded as too harsh, and the language of the decision characterized as extravagant. Th. 1185, 1189. And see 28 An. 180.
    It is not negligence to send small children into the street. Th. 1185, 1186.
    A parent is not required to do anything unusual to prevent a child escaping from his supervision. Th. 1188.
    The degree of cafe which parents are bound to take to prevent the escape’of their children from their immediate supervision is sometimes made to depend upon the condition and resources of the parent. Th. 1188 n.
    The mere fact that a child 4 years old strayed a distance of move than two blocks from home, at play with other children, is not of itself evidence of contributory negligence on the part of the parent. 7 Cent. B. .1. 311-313.
    Where the mother had a nursing child, and had been in the house all the afternoon, and went into an adjoining room for a minute or two, and another child less than 5 years of age, without the knowledge or consent of his mother, went into the street, where he was injured by defendant’s horse, and there was no evidence of what the child was doing when injured; held, that there was no want of duo care on the part of mother or child. Marsland vs. Murray, 18 N. E. Reporter 680 (Mass.).
    A child playing on or about a railroad track, if it has exercised all the care of which it is capable under the circumstances, may recover from an injury received in consequence of the/ negligent operation of trains upon such track. Th. 1196.
    Under Act 71 of 1881, and Article 2315, O. C.,the right of action which the survivor has is coextensive with that which the injured person would have had if he had outlived the injury.
    By Article 1934, C. C., in cases of offences and quasi offences punitive damages may be given to the party injured.
    Therefore the right of action in the survivor is for punitive as well as actual dam ages.
    The true rule respecting the liability of corporations for punitive damages for the acts of their servants is that where such acts arc grossly negligent or are criminal, or where the corporation has ratified the act by retaining the employe, or in any manner justifies or approves his conduct, then the corporation becomes liable for punitive as well as actual damages if the servant would have been himself liable for such damages. Eng. and Am. En. of Law, Vol. 5, pp. 23 and 24, and numerous cases there cited.
    Retention of the employe who was guilty of the wanton or grossly negligent act, and especially his promotion by the company after it knew of such act, are evidence of such a ratification of his act as will make the company liable for punitive damages. Eng. and Am. En. of Law, Yol. 5, p. 24, and cases there cited.
    D. Caffery for Defendants and Appellants:
    1. A plaintiff is bound by bis allegations. A prayer for judgment, according to tlie allegation, must be governed by tbc allegations. When a plaintiff sets out grounds for damage, and says that by reason of the grounds set out he is entitled to punitive and exemplary damages, and prays for damage accordingly, the action is one of his own making for exemplary damages. 10 An. 719.
    2. Vindictive damages do not extend beyond the death of the person injured. 10 An. 138.
    3. Under Article 2318, and Act 71 of 1884, where one of the survivors dies after action brought by both, the action abates for the interest of the co-plaintiff. Southerland, Vol. 3, p. 281.
    4. That when death is instantaneous, the survivors, who have only a right of action for compensatory damages for the suffering and anguish of the deceased, can not recover. 128 Man. 90, 93-9; Cushing, 108; 6 Cald-Tenn. R. 45; 21 A. & E. R. R. 391.
    5.. When the survivors are entitled to recover for suffering of the deceased, and the deceased was a child 3 years old, killed instantly, a verdiet of $5000 is five times as much as has been awarded by this court for prolonged agony of an adult. 37 An. 630; lb. 750; 35 An. 702; 6 S. R. 799.
    6. That when the survivors sue “for damage sustained by them” under Act 71 of 1884, and the child from whose death they make the claim is 8 years old and an imbecile or weak minded, and is shown to be permanently so, no damage can be had of an actual kind, and none other is allowable. Southerland, Vol. —, pp. 283-4-5 and 6.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendant to recover the sum of fifteen thousand dollars.

He alleges that a locomotive and tender of the defendant company in the actual management of the employés of the corporation, ran over and killed his daughter, aged 3 years.

He charges the killing to the negligence of the servants of the cor-: poration, which he characterizes as gross, wanton and criminal.

In support of this accusation, it is alleged that they had time, just prior to the accident, 'to see the child and that they did see her, and' could easily have prevented her death by the exercise of ordinary care.

That alarm was given amply in time, by calling and shouting, but. the men paid no heed to them.

That they neglected to blow the whistle or ring the bell while running the engine through the principal street of the town of Berwick.

The plaintiff sues for fifteeen thousand.dollars for damages inflicted upon himself by the killing of his child, for the grief and sorrow and for physical suffering caused by the death.

He also sues for the damages suffered by the child and fixes the-amount at one-third of the sum sued for. •

The defendant company filed a plea of no cause of-action.

The District Court decided that there was no cause of action for damages claimed by the parents for the death of the child, but overruled the exception, in so far as related to the rights of the child, distinct from her parents, which at the death were inherited by the parents.

The suffering of the child is not proven, nor any other actual damage. The verdict must have been for punitive damages. No motion was made to amend the judgment before this court.

The suit is pending in the name of the father, the mother having died since it was instituted.

The main track, where the accident occurred, is built on a grade, five feet above the ground; on the elevation there is a switch on a level with the main track. It enters the main track about forty feet west of plaintiff’s house.

Steps lead from the approach in front of his house to the top 'of the grade.

The child left the house, passed through the gate that had been inadvertently left open, by one of the neighbors, went up the steps, and into the side track; thence walked west toward the switch joining both the main and side track.

The engine of the company and a tender were running toward the bridge to Morgan City.

There were three men in charge, the engineer, a fireman and- a brakeman.

The plaintiff avers that these men were not at their posts of duty.

That the duty of the brakeman, since the locomotive and tender were running backward through the principal street of the town, was to take his position at the rear of the tender and be on the lookout to signal to the engineer.

The child left the switch and entered the main track. Unconscious of danger, she stepped toward the train and its merciless and, to her, death-bearing wheels. She was struck; fell, and the wheels passed over her body. She was instantly killed.

No allegation of physical pain was made; none could have been proven. The death was sudden. The poor child did not realize the danger'.

A number of persons, residents of the town, saw the child at the time and were alarmed by the danger in which she was.

They made some noise and thus attracted the attention of the men on the engine.

The brakeman rushed to the front of the tender, jumped down and tried in vain to save the child.

The engineer reversed the engine, but it did not stop before the wheels had passed over the body.

As well mention, at this time, that the engineer did not testify in the case. He was dead at the time it was tried.

It was proven that he was competent as any engineer.

The testimony shows that he was an upright and good man.

It is testified that after this accident he was affected when he re-; called the horrible condition of the child after she had been crushed.

The fact that this occurred while he was in charge; the mangled body, the blood-stained rails, preyed upon his mind, and it doubtless afflicted him to think that he was connected — however innocent he may have been — with this horrible accident.

It is the same in. this suit, as too often the case in similar suits.

The witnesses for the defendant contradict those of the plaintiff.

There is a lamentable difference in the testimony.

Those for the latter testify that the cries were loud, and that the alarm was given in time to prevent the accident, if the men had been at their posts.

Those for the former testify that each man was at his post and that everything possible was done to prevent the accident.

While the negligence was not gross, wanton, or criminal, we are confident that vigilant caution was not exercised on the part of the employés on the occasion of the accident.

The superintendent of the road of the defendant testifies that be■fore an engineer starts his engine backward, he must place the brakeman in the rear end of the tender, which is the front end of the engine in the direction in which it is moving. It is the duty of the brakeman to keep a lookout on thé track, so as to warn the engineer in case of danger. It is the duty of the fireman to ring the bell continually whilst passing through a town or village, and all three, the engineer, fireman, and brakeman, should keep a sharp lookout, and in case of danger should stop as soon as it can be done.

The fact remains uncontradicted that the brakeman was not at the end of the tender.

He was in the tender, but not at the front advancing, where he ■should have been.

A claim for punitive damages is earnestly and ably presented for our consideration.

For two reasons punitive damages can not be allowed.

1. The accident was not occasioned by recklessness and wrong intention, evincing malice and evil disregard of the rights of others.

2. Punitive damages is not an inheritable right.

The injury which will justify the allowing of punitive damages is a personal right. It can be exercised only by the party injured and does not survive in the parents.

1. We will not discuss the first proposition, at length, as it would not serve any purpose in our decision. •

Suffice it to say that the proposition expresses our conclusion after a careful examination of the testimony.

2. Respecting punitive damages, the proposition is maintained by an unbroken line of authorities.

We quote from a decision, the correctness of which is unquestioned:

“ Were this suit prosecuted for the behoof of the mutilated individual himself, it is possible we would not think the verdict of the jury too high. In that case the bodily pain and suffering, the deformity of person, the diminished capacity of laborious exertion, might reasonably justify damages of the class called vindictive or exemplary, the standard of which is of necessity exaggerated beyond the limits of an exact arithmetical appreciation, being, as the title imports, in the nature of a penalty and of an example — partaking of • the character of public justice, while redressing a private wrong.” Black vs. Carrollton R. R., 10 An. 38.

In the case just quoted, as the suit was not prosecuted in the name and for the injured minor, the father’s claim -for punitive damages was rejected.

“Only compensatory damages can be allowed.” Vide McKee vs. R. R. Co., 42 An. —.

The father can not recover compensatory damages in his own right, in this case. Under court a qua’s ruling none was proven.

He has not shown, in so far as relates to the child, such injury as enables us to allow compensatory damages to a larger amount than that fixed in our decree. Only nominal damages can be allowed.

The issues come to us limited to the rights of the child to compensatory damages although instituted to recover punitive damages.

Infants have legal rights, distinct from their parents, which are carefully protected by law.

The right to compensatory damages is (different from the right to punitive damages) one which survives in the parents.

We do not find proof, for actual damages, which can be allowed under established jurisprudence.

But we will not give our sanction to the least absence of an employé of a railroad, when a serious accident happens, while passing through a street of a town.

The danger to human life is too great, and employés, to be relieved from all responsibility, must be at their posts.

In the exercise of the equity power of the court, we assess nominal damages at $250.

The plaintiff had reason to complain and to seek judicial investigation of the facts connected with this accident.

He shall not be made to pay costs.

In view of our statement of the case in the first part of the decision and to prevent inference different from our views upon the subject, we will say that we do not think that the doctrine of contributory negligence applies to a child less than four years of age.

A child of such an age is generally incapable of choosing between right and wrong, good and evil, prudence and'rashness.

It is, therefore, ordered, adjudged and decreed, that there be judgment in favor of plaintiff for the sum of $250 and costs of both courts, and that the judgment of the District Oourt, and the verdict of the jury, be reduced to that sum; after reduction and assessment as made the judgment appealed from is affirmed.

Judgment amended and as amended affirmed, the defendant and appellant to pay costs of both courts.


author: Bermudez, C. J.

text:
    No. 1364.
    Mrs. Voley Amet, Wife of T. Lougarre, vs. J. A. Boyer and Sheriff.
    The law requires that before execution can issue on a judgment of the Supreme Court, it be “recorded in the records” of the court of first instance. It nowhere provides that such judgment shall be recorded on the minutes of the lower court. The recording of such judgment in the book which the act of 1855, No. 56 (Sections 22 and 23), directs the clerk to keep, and in which are to be entered all decrees and judgments of the District Court, as well as those of the appellate court, is a full compliance with legal exigencies. Excessive damages awarded on the dissolution of an injunction, arresting execution, will be reduced.
    APPEAL from the Twelfth District Court for the Parish of Avoyelles. Coco, J.

      Irion & Lafargue for Plaintiff and Appellant:
    judgment of the Supreme Court can not be executed until it has been recorded in the records of the District Oourt. C. P., Art. 619.
    The minute book is the record referred to in Art. 619.
    It is that book which shows the history of a ease. In the suit at issue the minutes show that a judgment was rendered and an appeal taken to the Supreme Court. They do not show that the suit was ever decided by that court, and before execution can issue the judgment must be recorded by the clerk in the minute book so as to complete the history of the case.

      Thorpe & Peterman for Defendants and Appellees:
    1. Since the Act of March 9, 1855, a motion in open court and entry upon the minutes of the District Court are not legal prerequisites to the receipt, filing and recording by Uio clerk of tlie District Court o£ the mandates and decrees of tho • Supreme Court, and the issuing' of execution thereon. Act of 9th March, 1855, Sections 5, 22, 23, 24 and 25; 8 An. 457; 13 An. 461; 29 An. 649; 33 An. 445; Act of March 18,1852, Section 4.
    2. Upon dissolution of 'injunction arresting execution of a mandate of the Supreme Court upon frivolous grounds, exemplary damages will be awarded against the party suing out tho writ and his sureties. C. P., Art. 304; 8 An. 457;. 13 An. 461; 38 An. 695.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an injunction suit. Its object is to arrest the execution of a judgment rendered by the Supreme Court for’ $3477, on the ground that the same had not been recorded on the-minutes of the District Court after its transmission and before the-issuance of the fl. fa. to have it satisfied.

The defence is that the judgment had been properly filed and recorded previous to the issuance of the writ by the clerk of court.

After hearing, there was judgment dissolving the injunction with $531 as damages.

Prom this judgment the plaintiff in injunction appeals. The defendant therein prays for an increase of the damages to $1000.

The evidence shows that after being filed on July 12, 1889, by the clerk, the judgment rendered on appeal was by him recorded on the same day in a well-bound book,.known as the “ Book of Original Documents,” which might be more properly termed the “judicial record.”

It does not appear that this judgment was recorded on the minutes of the District Court.

The contention is that the judgment should have been recorded in the minute book of the court, although the court was not in session at the time the decree of the appellate court was received, and that the recording of it in the book named is a nullity. It is hence argued that as the judgment could not be executed until it had been properly recorded in the records of the inferior court which had first cognizance of the cause, the judgment creditor had no right to demand and the clerk no right to issue execution on it.

Under the law, as it stood originally, O. P. 620, the recording was-necessarily required to be authorized, or directed by the court, on motion in open court, by the party wishing to make use of the judgment ; but considering that the fulfilment of this prerequisite occasionally proved an inconvenience calculated to obstruct the administration of justice in most of the country parishes, in which the courts. were frequently not in session, the Legislature thought it proper and wise to dispense with this idle ceremony, which was purely ministerial, and, in 1852, adopted Act No. 305, p. 206, whereby (Sec. 4) the clerks of the District Courts, except in the parishes of Orleans and Jefferson, were empowered to receive, file and record all mandates and decrees of the Supreme Court in causes taken up by appeal from their respective courts, and to issue all legal process under said mandates and decrees.

Por a like reason and to extend further relief, the Legislature, in 1855, by Act No. 56, See. 5 (R. S. 464), did away with the requirement of this formality generally, dispensing with its observance even in the parishes which had been previously excepted by the Act of 1852.

The provision reads that the clerks shall have power to receive,, file and record all mandates and decrees by the Supreme Court and to issue all legal process thereon.

So that the requirement of anterior direction, by order in open court, to authorize the recording, ceased to have any further existence, the law in other respects remaining substantially as it previously stood.

Article 619 of the old Code of Practice, which has been continued in force and which bears the same number in the R. C. P., alluding to the judgment rendered on appeal by the Supreme Court, provides in negative terms that it shall not be executed until it has been recorded in the records of the inferior court.

There was no law, prior to the Acts of 1852 and of 1855, requiring the judgment of the Supreme Court to be recorded on the minutes of the lower court and none has ever since been adopted for that purpose.

The records to which the article refers, are those which the clerk is bound by law to keep and which are mentioned in Articles 776 and 777 of the Code of Practice and in Section 22 (R. S. 474) of the Act of 1855.

This provision of law received legislative consideration in 1878,, when, by Act 57, it was amended and re-enacted so as to authorize copies from the record, in cases of loss or destruction of originals, in criminal and civil proceedings in court; but the existence of the-book, as a register, and the mandate to bhe clerk to enter therein the pleadings, decrees and judgments in a case, continued in force.

The record required to be kept by Act 777, O. P., is the minute book, which is that in which all the orders and judgments of the District Court are to be entered, while that mentioned in Sec. 22, 474 R. S., and in the Act of 1878, is that in which are to be entered the petition, answer, and orders of court and interlocutory judgments, together with the final judgment of the court rendered thereon.

The following section (23) of the Act of 1855 provides that in case of an appeal it shall be the duty of the clerk to record the pleadings and judgments, as aforesaid, together with the judgment of the district and appellate courts, within six months from the filing of the judgment of the appellate court.

The words “ as aforesaid ” clearly mean that the judgment of the appellate court shall be recorded in the book in which are to be ■entered those of the District Court, so that all might be found therein, •and that book is that mentioned in Section 22 of the Act of 1855, in Section 474 R. S., and in Act 17 of 1878.

It is shown by the evidence that it is in this last book that the .judgment of the Supreme Court, the execution of which was arrested herein, was recorded previous to the issuance of the writ of execution.

This was a full compliance with the legal exigencies, which never required a recording of such judgments on the minutes of the court in which are to be entered only such decrees and judgments as the District Judge renders, and in which the clerk has no authority whatever to make any entry without previous authority and direction by that officer.

The question here is not quite novel. It was raised shortly after the passage of the Act of 1855, in the case of Berlin vs. Gilly, 13 An. 461, which came from Avoyelles, and in which “it appears that without any motion in open court having been made, the decree was recorded in the lower court and an execution issued.”

The court eonsidei’ed that it was not necessary, to move in open ■court to have the decree recorded, because Article 620, O. P., requiring it, had been repealed by the Act of 1855, and the court referred to Section 5 of the statute without however considering Section 23 and determining expressly whether the recording which had been made was that provided for by it.

In the more recent case of Stafford vs. Renshaw, 33 An. 445, the present court alluding to the party benefited by the judgment of the appellate court, said: “ All he had to do was to produce to the lower court an authentic copy of the judgment of the Supreme Court in his favor and to have a writ to issue in furtherance of its behests. That is precisely what he has done. It was useless to obtain any decree for the execution of that judgment. ’ ’

This saying implies that, as a matter of course, the judgment must be recorded as directed by law previous to the issuance of execution.

We therefore conclude that the law did not require that the judgment of the Supreme Court in the instant case should be recorded on the minutes of the lower court, but that it be entered, exactly as it was, in the “Book of Original Documents,” or “Judicial Record Book,” mentioned in Section 22 of the Act of 1855.

We have been atesóme pains in determining the question presented, which had not heretofore been clearly settled, in order that it might hereafter be considered as adjusted.

Under the circumstances, we deem that the allowance of $531 as damages, for arresting, on September 13, 1889, the execution of a judgment for $3477, which bears interest from September 1, 1888, too large, and that it should be reduced to $200, without entering into details as to the items aggregating this amount.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing to $200 the amount of damages awarded, and that, thus amended, it be affirmed; the appellee to pay costs of appeal and appellants those of the lower court.


author: Watkins, J. Bermudez, C. J..

text:
    No. 1367.
    A. Adler & Co. vs. Clifton Cannon, Sheriff, et als.
    When a creditor, claiming* a vendor’s lien on certain goods lie and other creditors of a common debtor have attached, files an appearance in his own attachment suit claiming a ^preference on the proceeds thereof over the other attachment creditors, who are cited therein as defendants the amount of tlie proceeds of the particular property which is affected with the vendor’s lien, will control the jurisdiction of the cause in this court. It is only when a fund exceeding $2000 is sought to be distributed, and where the court acting intra and not ultra petitum, can direct tlie distribution of such fund. Whether it does so actually or not is immaterial, the Supreme Court has appellate jurisdiction.

      APPEAL from the Twelfth District Court Parish of Avoyelles. Coco, J.

      Irion & Lafargue for Plaintiffs and Appellees:
    When two suits are consolidated they thenceforward form but one, and when thus-tried and decided, and judgment is rendered, the party cast must appeal from that judgment if he wishes relief. 35 An. 555.
    The test of jurisdiction is the amount in contention, when realized at a separate sale, and not the fund derived from the sale of the entire stock of a debtor, which is not opposed, and which has previously been ordered to be distributed.
    When the amount involved is less than the lower limit of the jurisdiction of the Supreme Court, it can not exercise jurisdiction, but must dismiss the appeal.
    The proceeds of a sale of specific items of property upon which vendors claim their privilege is the test of jurisdiction of the Supreme Court, and not the value of the entire property of the debtor 'when same is not to be distributed.
    In an attachment proceeding, when a third opponent claims a privilege on the proceeds of a portion of the property attached, which has been sold separately, the value of that property, and not the amount realized at the sale of all the property of a debtor, is the test of jurisdiction of the Supreme Court.
    • Thorpe & Peterman for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs and appellees move the dismissal of EL & C. Newman’s appeal, on the grounds:

1. Plaintiffs’ attachment suit and opposition were consolidated before trial, and thereon judgment was rendered, but the appeal is prosecuted from the judgment on the opposition alone.

2. The lack of jurisdiction of this court ratione materise.

Prom the record it appears that plaintiffs filed a petition of opposition in an attachment suit against S. E. Blum, of previous date, and claimed a vendor’s lien and privilege on certain goods they had previously sold the defendant, Blum, and which they had identified, and caused to be sold separately from the mass of his property, and which realized the sum of §167, and which they claimed should be paid to them by preference over all attaching creditors of the common debtor. In the record we find an order of court consolidating the opposition and attachment suit of Adler & Co. and the judgment that was rendered in the consolidated canses; but we find none of the pleadings or proceedings in either the attachment suit of Adler- ■& Co. or other parties againt Blum. In the petition of opposition quite a number of persons are mentioned as attaching creditors of Blum, and they were cited and answered, and contradictorily with them said judgment was rendered. It is from that judgment that H. & C. Newman have appealed. As it is the only judgment in the record, and the motion, order and bond of appeal conform to the judgment, the first ground of plaintiffs’ motion can not prevail.

But the second one is good, as we think it is manifest that there is no contingency in which we could render a judgment-for or against either party to this litigation for a sum of §2000. Adler & Co. only claim §167 in their opposition as the proceeds of the sale of certain movable effects on which they assert their vendor’s lien, and quoad hoc they claim the right to be paid by preference over other attaching creditors of same goods and effects. Between opponents and other attaching creditors there appears from the record to be no controversy as to proceeds of the sale of other goods. From aught that appears of record other creditors had no liens or privileges on the goods other than such as resulted from their attachments, and they were ranked according to the respective dates of seizure.

Under this state of facts there is but one single controversy under ■consideration, and that is whether Adler & Co. are entitled to priority over other attaching creditors of Blum upon the proceeds of the sale of ■the goods mentioned as being affected with a vendor’s lien and aggregating §167. The consolidated judgment appealed from dealt with this question alone, and maintained the plaintiff’s right of preference. It did not deal with the remainder of the proceeds or other attachment suits. While we think it is the proper course in such cases to form a coneursus and let judgment be rendered contradictorily with all parties in interest; yet it was not done, and we must take the case as we find it. Succession of Durand, 34 An. 585; Succession of McDowel, 35 An. 1025.

We are clearly of the opinion that we have no jurisdiction in the premises, and the appeal must be dismissed.

It is therefore ordered and decreed that the appeal in this ease be and the same is hereby dismissed.

On Application for Rehearing.

The opinion of the court was delivered by

Bermudez, C. J..

The parties whose pretensions were submitted to the lower court for adjudication, did not together claim an amount exceeding $2000; and although the proceeds of sale, out of which they sought to be paid the amount of the vendor’s lien, exceeded that sum, the lower court was not called upon to deal with the disr position of the remainder of the fund, and it accordingly abstained from doing so. It could not, and did not, therefore, render a judgment for the distribution of a sum exceeding $2000.

It could have rendered no judgment as to the surplus which would have bound the parties claiming it, and who are not parties to the proceeding now before us.

Rehearing refused.


author: Watkins, J. Bermudez, O. J.

text:
    No. 1363.
    I. L. Lyons & Co. vs. Simon E. Blum et als.
    Syllabus same as that in Adler & Co. vs. Cannon, Sheriff, et als.
    APPEAL from the Twelfth District Court, Parish of Avo5>-elles. Coco, J.

      Lemoine & Gouvillon for Plaintiffs and Appellees.

      Thorpe & Peterman for Defendants and Appellants.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

This case is similar in all respects to that of Adler & Co. vs. Cannon, No. 1367, just decided, and the amount of the proceeds claimed is $200. For the reasons assigned in that case the appeal in this case is dismissed.

On Application for Rehearing.

Bermudez, O. J.

For the reasons assigned on the application for a rehearing in the case of Adler & Co. vs. Cannon, sheriff, rehearing refused.


author: McBnery, J.

text:
    No. 1365.
    Gilbert Hebert vs. George L. Mayer et al.
    Where the owner of a homestead sells the same, dormant judgments against the debtor are revived and will, if recorded, follow the property into the-hands of the vendee. Where the vendor repurchases, the homestead exemption does not revive.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      W. Hall and E. J. Joffrion for Plaintiff and Appellee:
    Redeemable sales unaccompanied by delivery, the consideration of which is inadequate, the courts are hound to consider, without sufficient evidence to the. contrary, as contracts in which the thing nominally sold stands as security and nothing else. Leblanc vs. Bouchereau, 16 An. 12; 12 An. 581; 18;An. 738.
    “The homestead right can not be contractually waived or destroyed otherwise than by sale or its equivalent, and finding that in this ease the defendant has not sold or alienated his homestead, his claim for its protection must be susained.” 10 An. 627.
    The duties of the father and minor child are under the law reciprocal, the father being under “the obligation of supporting, maintaining and educating the child,” C. (.!., Art. 227, and the child to obey him “in everything which is not contrary to good morals and the laws,” C. C., Arts. 217., 215. 216 and 229.
    Personal property under the homestead laws may or may not be attached to a homestead, and does belong to the homestead proper, but are in the nature of exemptions from seizure when duly registered. Const, of -187.9,. Art. 219.

      Irion & Lafargue and H. C. Edwards for Defendants and Appellants :
    The owner of property exempt from seizure as his homestead can not sell such property free of mortgages inscribed before the sale. It is liable to seizure and sale by judgment creditors as soon as it is sold, which, right can be exercised at any time afterward, in whatever hands the property may be found. 10 An. 287.
    Certain conditions must coexist and concur to exemption from seizure under our homestead laws. As soon as any one of them ceases to exist the property can be seized.
    To be entitled to tbe homestead exemption a person must have some one dependent upon 1pm for actual and necessary support. A person able to earn her living though a minor, is not such a one in the moaning of the law. 33 An. 320.
   The opinion of the court was delivered by

McBnery, J.

The plaintiff was the owner of 160. acres of land, with cattle and stock thereon, situated in the parish of Avoyelles. He had his homestead set apart and secured. The defendant was a. judgment creditor of the plaintiff. The plaintiff, Hebert, sold thirty (30) arpents of his homestead to one Victor Reynould, who sold the thirty acres to William Hall, and Hall again sold the thirty acres to plaintiff Hebert. After it got back into the possession of Hebert, Mayer, the judgment creditor, seized and advertised it for sale. Hebert obtained an injunction against the defendant, Mayer, restraining him and the sheriff from proceeding further in the execution of the judgment and the sale of the land. There was judgment in the District Court in favor of the plaintiff in injunction, perpetuating the same. The defendant has appealed.

The question presented in the case is whether Hebert, by selling •the land, parted with his homestead right to the thirty acres, must be answered in the affirmative.

Under Article 219 of the Constitution the homestead must be ■owned bona fide by the debtor and occupied by him. When any of the conditions requisite to the setting apart and registering a homestead to exempt it from seizure and sale cease to exist, the reason for the existence of the homestead ceases, and it is subject to seizure and sale. The judgments recorded against the debtor followed it into the hands of third parties. Civil Code 3397; Denis vs. Gayle, ■40 An. 291.

No higher evidence of the reasons why the homestead should cease to exist because it is no longer needed by the debtor to support those who were dependent upon him when it was set apart and registered, could be offered than the voluntary relinquishment or sale of the homestead by the debtor.

The repurchase of the property by the debtor can not revive the homestead. The conditions upon which it was originally granted ■ceased to exist when he sold it. New conditions must arise in order to entitle him to the homestead exemption.

As this court said in the case of Denis vs. Gayle, “at the moment that the exemption ceased, the mortgage which had only been dormant, not extinct, became executory with its pristine force and vitality.

“ Having severed all his connections with the property thus sold, Gayle could no longer extend over it a shield of protection in the shape of an exemption from seizure and sale which was personal to himself.”

And in the instant case, if the judicial mortgage followed the homestead into the hands of the two vendees, it certainly attached to and covered it when it returned to the debtor.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that the injunction herein be dissolved, with $50 as special damages for attorneys, the appellee to pay all costs.


text:
    No. 1369.
    Parish ex rel. T. H. Theriot vs. Donatien and Jules Broussard.
    No appeal will lie to the Supreme Court from a judgment against a party for failing to work the public roads in pursuance of Act 112 of 1880, rendered by a justice of the peace. This is a State and not a municipal law. There is, therefore, no fine, forfeiture or penalty, the constitutionality of which is involved, imposed by a municipal corporation.
    APPEAL from the Justice of the Peace, Fourth Ward, Parish of Lafayette.

      L. L. Bourges for the Appellants.
    C. Be Baillon for the Appellee.
   The opinion of the court was delivered by

McEnery, J.

The defendants failed to perform road duty as required by Act No. 112 of 1880, amending Sec. 3378 Revised Statutes.

They were, in accordance withsaidact, cited before a justice of the peace, and judgment rendered against them for $6. They have appealed to this court under Act 81 of the Constitution.

A motion has been filed to dismiss the appeal. It must prevail. The constitutionality or legality of no. tax, toll or impost is involved; nor is there any fine, forfeiture or penalty, the constitutionality of which is in controversy, imposed by any municipal corporation.

Act No. 112 of 1880 is a law of the State, and authorizes the suit for a failure to work on the public roads. The defendants were not prosecuted under any municipal regulation,, but in pursuance of a law of the State.

The appeal is, therefore, dismissed.


author: Breaux, J. Watkins, J.

text:
    No. 1370.
    Omezia Simon et al. vs. Thelismar Richard et als.
    1. The property which is the subject of controversy is worth more than $2000. The allegations of plaintiff, respecting the value of the property and the improvements claimed for rent, are not considered, except in so far as they may serve to corroborate the correctness of an estimate, predicated upon the value of the property, the title to which is involved in the suit.
    2. The possession under which the prescription of thirty years is founded must be public and unequivocal, and the evidence should establish that the possessor claimed the property as his and exercised some rights as an owner.
    ,-i. It being shown that the property claimed was once jointly owned by the heirs, who inherited jointly from their ancestors and their brotheis and sisters, the condition of indivisión and joint ownership will continue, unless it be satisfactorily proven that the parties have parted with their title.
    4. The illegitimacy and the incapacity to inherit must be proven by competent ’ and satisfactory testimony. The acknowledgment of the mother, although not entirely in form, will receive the court’s sanction, unless the incapacity be proven.
    5. The author of the plaintiff’s title and the author of defendant’s title each owncd-one-lialf. In the absence of evidence showing a divestiture of title of some kind, they shall own in that proportion until a partition shall have been legally made or the joint ownership has been made to end. Joint owners can not acquire title to property by prescription as against each other.
    APPEAL from the Twenty-fifth District Court for the Parish of Lafayette. De Baillon, J.

      L. L. Bourges for’ Plaintiffs and Appellees.

      O. H. MoiUon and Julian Mouton for Defendants and Appellants:
   On Motion to Dismiss the Appeal for Want of Jurisdiction Ratione Materle.

The opinion of the court was delivered by

Breaux, J.

In tracing up the chain of title to the property claimed in this suit we had in view the motion made to dismiss the appeal. The value of the land is more than $2000.

The appellants once owned the whole tract, and are interested in maintaining their title to the whole.

Mrs. Zenon Broussard, one of the defendants, purchased two hundred arpents of the land in 1882 at auction sale. Roman Frances at the same time purchased the remainder. The latter has sold the land he purchased. The former still owns a part. They are sued to set aside the sale of 1882 to them; also are sued those who subsequently purchased from them, and plaintiff and appellee seek to have all the sales (those made to Broussard and Frances, and those made by them subsequently) annulled.

Title to the whole property is involved in this suit, and Broussard and Frances, who have appealed, are interested in maintaining their title to the whole tract, although the other defendants (their vendees) have not chosen to appeal. Plaintiff’s allegations that the tract is worth $6400, and the claim for rental in the sum of $1800, not having been proven, are not considered, except in so far as they corroborate other evidence of the value of the land.

The motion is therefore dismissed.

On the Merits.

The plaintiffs allege that they are the owners of a tract of land in the parish of Lafayette. It is described as section 62, township 8 south, range 5 east, and contains three hundred and twenty arpents. More than seventy years ago William Luix, alias Guillaume, and his wife, Franeoise Masé, were in possession of this land.

The former acquired it from the government of the United States.

They left five heirs, born of their marriage, viz: Etienne, Pierre, Oelestin, Simon and Felicite Luix.

Etienne, Pierre and Oelestin died without issue.

Franeoise Scandron, wife of Noel Moral, inherited from Felicite Luix.

Franeoise Scandron was the illegitimate daughter of the latter, but was acknowledged, as shown by a certificate of baptism in evidence.

She had other illegitimate children. The record does not disclose that they were ever acknowledged by her.

No further mention will be made of them, as they have never been acknowledged. After the death of Felicite, her daughter, Francoise Scandron, wife of Noel Moral, was in possession.

After the death of the latter, her daughter Aspasie, wife of Philogene Simon, mother of the plaintiffs, went into possession of this land and retained possession to the day of her death. The record discloses that her possession began more than thirty years ago.

Not many years'after the death of Aspasie, her children, the plaintiffs, brought this suit against the defendants.

Judgments were pronounced in favor of the plaintiffs, from which the defendants appeal.

The plaintiffs claim by inheritance.

The defendants by inheritance, also by purchase.

In August, 1882, one of the defendants, Romain Frances, bought the upper portion of the land; at the same time Mrs. Zenon J. Broussard, another defendant, bought the remainder from Simon Luix’s succession.

It is not known that Simon Luix, brother of Felicite Luix, and son' of William Luix and Francoise Mase, ever claimed the entire tract of land in controversy.

In 1882, it was sold at public auction as his property.

It was at this sale that Frances and Mrs. Broussard became the adjudícateos, and from that time the contest arose in regard to the title.

The former afterward sold a part of the tract bought by him to Philosie Richard and the remainder to Thelismer Richard.

This was in August, 1882.

Mrs. Broussard sold to Ovide Saunier a part of the land and to C. Broussard and others, and, still owns a part. The number of claimants, owing to the sales made by Broussard and Frances, became numerous, and they succeeded in obtaining possession after 1882.

It can not be questioned that the land was inherited in equal portion by Simon Luix and Felicite Luix, the son and daughter of William Luix and Francoise Mase.

Etienne, Celestin and Pierre Luix, other sons of these last named, having died childless, Simon and Felicite inherited in equal portion from them.

This condition of inheritance can be changed only by legal evidence. None such is disclosed in the record.

On the part of defendants a number of deeds have been introduced in evidence. None showing legal divestiture of title.

Some of them do not describe lands which can be identified.

In one of the deeds, relied upon by the defendants, two separate tracts are described and the boundaries are not those of the land claimed.

Similar difficulties present themselves with reference to a copy of a deed executed before Judge Brashear in August, 1834.

Two deeds under sous seing privé have been introduced in evidence.- They were not authenticated, nor the least evidence offered to support them. The vendor and vendees who were parties to these last mentioned sales, to prove their genuineness, made their mark, as they could not sign. One witness signed one of these deeds; the other, only the vendor and vendee, no witnesses signed.

Defendants contend that the author of their title, Simon Luix, was the heir of Felicite Luix. That it should be so decreed, and their title quieted. That as Francoise Scandron, the daughter of Felicite Luix, was illegitimate, Simon, her brother, should inherit from the succession of his sister to the exclusion of her daughter.

Francoise Scandron’s right to inherit was never questioned before the pendency of this suit. She was in possession many years as an heir.

At this date we will not change the order of inheritance.

While examining this case we have been reminded of the uncertainty of oral testimony when witnesses testify as to occurrences of mañy years ago.

We will not on that testimony, in this instance, decree that the brother is legitimate and should, inherit from his sister to the exclusion of his acknowledged niece, her daughter, although the acknowledgment may not be entirely formal.

The defendants contend that Simon Luix inherited the land from his sister, Felicite Luix, who died without legitimate issue.

This is an admission that she was once the owner, at least, of one-half as an heir.

That she once owned half as an hier can not be reasonably denied.

With reference to possession, we will state that the possession of the authors of plaintiffs’ title is not proven to have been public and uninterrupted as owners.

We will not therefore hold that Felicite Luix and those who sueceeded her as owners acquired title to the whole tract by prescription of thirty years, but we feel confident, in the conclusion, that she owned half by inheritance, which is now owned by plaintiffs.

We do not give the importance to the possession of Felicite Luix and those who have possessed since, that the learned judge of the court a qua has given. It is not sufficient of itself to maintain title. The land was undoubtedly at one time the property of Simon Luix and Felicite Luix.

In the absence of sufficient evidence to show transfer, we maintain the joint ownership. Joint owners can not acquire title against each other by prescription.

It is ordered, adjudged and decreed that the judgment appealed from be amended by recognizing plaintiffs’ title as the owners of the undivided half of the property, viz: Section 62, township 8 south, range 5 east, Louisiana meridian; and defendants are condemned to deliver up possession of the half of said land to plaintiffs, or as much thereof as they may have possession or are warrantors of. The sales made by these defendants of this land are declared null and void to the .extent of one undivided half, and defendants’ prayer to annul the act of sale of 1882 made to Broussard and Frances, in so far as relates to one-half, is denied.

As amended, judgment appealed from is affirmed at appellee’s costs.

On Application por a Rehearing.

Watkins, J.

The complaint of our opinion is that as the only appellants from the judgment below are Romain Frances and Mrs. Zenon Broussard; and that as other defendants, who are them vendees and transferees, have acquiesced therein, by not appealing, the judgment constitutes res judicata as to the title, and puts an end to the case. Hence, our opinion improperly dealt with the title, and should have liberated appellants from their obligation in warranty to their transferees, as defendants, and appellees.

It appears that, at public auction, Romain Frances purchased a part of the land in dispute; and that Mrs. Zenon Broussard purchased the remainder. The former sold to Philosie Richard and Thelismar Richard; the latter sold to Ovide Sonnier and Charles Broussard. Thereafter the number of claimants became quite numerous, and they succeeded in obtaining possession.

These various parties were cited, and contradictorily judgment was rendered, recognizing plaintiffs, as the heirs of their grandmother, Franeoise Scadron, the owners of the whole land.

It is a fact which is found in our opinion, and not denied in the motion under consideration, that the defendants assert title to one-half interest in the land by inheritance from Simon de Clouet and the whole by mesne conveyances from Romain Frances and Mrs. Zenon Broussard.

Our opinion maintains that part of the judgment appealed from which annuls the latter, on the ground that the deeds of conveyance ■are insufficient to pass the title; but it reverses the part which rejects the former, on the grounds that the defendants’ title by inheritance has never been divested, and that, as between co-heirs, title can not be acquired by prescription. It is, therefore, manifest that appellees’ contention is erroneous and their application must be refused.