text:
       No. 972.
    No. 973.
    No. 974.
    State of Louisiana ex rel. Attorney-General vs. E. P. Rareshide et al. and W. E. Clarke. State of Louisiana ex rel. Attorney-General and William Martin vs. Vincent Lamantia. State of Louisiana ex rel. Attorney-General vs. J. F. Shaw et. al.
    Public officers appointed by tbe late Governor shall bold their offices, under the provisions oí the present Constitution, until their successors are duly appointed and qualified.
    Appointments of public ofñceT3 by the Governor, which are by law subject to the advice and assent of the Senate, are inoperative, if made after adjournment of the Legislature, unless to fill up such vacancies as are caused by death, resignation, or removal.
    Held, therefore, that the delators have not been duly appointed and qualified, and that the Defendants are entitled to continue in the discharge of their respective offices.
    APPEALS from the Fourth District Court for the parish of' Orleans, Houston. J.; and from the Fifth District Court for the parish of Orleans, Rogers, J.
    E. Howard McOaleb for the Eelators.
    Joseph P. Hornor and Francis W. Baker on the same side.
    Kelly So Lazarus on the same side:
    By the 6th section of Act 87 of 1876, the Governor is authorized to appoint the members of the Board of Flour Inspectors of the City and Port of New Orleans, without requiring the advice and consent of the Senate.
    That section of the act is not void for repugnancy to article 114 of the Constitution of 1868, which required that every law should express its object or objects in its title. The title of the actaffords a reasonable clue to the subject matter of the section, which is germane to the subjects referred to in the title of the act.
    The Court will not declare an act of the Legislature void, unless its re-pugnancy to the Constitution is clear beyond all reasonable doubt.
    Under the Constitution of 1868, the defendants held their offices for a term of four years, from January, 1877, but when that Constitution was superseded by the Constitution of 1879, they ceased to hold the offices for. any term of years, but continued to hold office by virtue of articles 259 and 260 of the schedule of the Constitution of 1879, at the will of the Governor to be elected under that Constitution.
    When an office is not held for a term of years or during good behavior, it is held at the will of the appointing power, and the incumbent may be removed at any time.
    Spencer & White for the Defendants :
    First — The defendants having been regularly commissioned and qualified under the Constitution of 1868, hold over until their successors are duly nominated by the Governor and appointed by and with the advice and consent of the Senate. Constitution, articles 161, 259.
    Second — The plaintiffs are not to be considered as appointed until their nomination by the Governor is confirmed by the Senate. Baum-bach vs. Dubuc, 9 An. 237.
    Third — Where an office is filled during the recess of the Senate by an incumbent holding over in consequence of an expiration of term which took place before the meeting of the General Assembly, the office is not vacant, and the Governor cannot create a vacancy by a recess appointment.
    Fourth — These propositions are settled by the case of Baumbach vs. Dubuc, 9 An. 237, which case is, under the principles announced by your Honors in Wilson vs. Wiltz, to be adhered to under the rule of stare decisis.

    Fifth — The pleadings and proof do not justify the charge that the defendants were removed for cause by the Executive.
    Sixth — If they do, the power to remove is no longer an executive, but a judicial, function. Constitution, articles 196 to 201 inclusive.
    Seventh — There is no conflict between section 1 of Act No. 71, extra session of 1870, and the 6th section of Act No. 87 of 1876 ; they are laws in pari materice, and must be construed together.
    Eighth — If there be a conflict, the 6th section of the act of 1876 is unconstitutional, its object not being expressed in the title of the act. Constitution of 1868, article 114 ; Walker vs. Caldwell, 4 A. 298.
    Ninth — Applying for an appointment does not estop the defendants.
   The opinion of the Court was delivered by

Todd, J.

The defendants were appointed and commissioned by the late Governor, by and with the advice and consent of the Senate, respectively, as harbor-masters, hay inspectors, inspectors of weights and measures, and flour inspectors of the parish of Orleans, to fill during the term specified by law these offices, which they claim the right of holding until their successors are duly appointed and qualified.

Before the expiration of their terms of office as fixed by law, the present Constitution was adopted. The first Legislature Organized under this Constitution has met and adjourned. Since the adoption of the Constitution and during the session of the Legislature that has intervened since, and since its adjournment, the defendants have continued to discharge the functions of their respective offices up to the institution of these suits.

Since the adjournment of the Legislature the present Governor of the State appointed and commissioned the relators to fill the same offices ; but as the Senate was not in session at the 'date of their appointment .there was no confirmation by that body previous to the issuing of the commissions to the appointees.

There is no pretense that any one of those appointed by the late Governor, defendants herein, has resigned or been removed by the present Executive, who has the power to remove for cause. R. S. 3913,1859, 1866,1679 ; article 71 of 1870.'

The proceedings were instituted by the relators, the last appointees, under the Intrusion-into-Office Act, against the defendants; and the issue presented is whether they are entitled to be inducted into the respective offices now held and the duties of which are being discharged by the defendants.

Article 161 of the present Constitution provides: " All officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office.” See, also, art. 259.

The question arises whether the relators are the successors of the defendants, duly appointed and qualified,' or, in other words, whether. their appointment is constitutionally valid ?

Had the defendants or any of them died, or resigned, or been removed, and the commissions of the last appointees, the relators, .expressly declared the vacancies arising from such cause or causes, and the filling of the same, we would have been powerless to go behind the appointments and pass upon the propriety or legality of the action of the Executive, 12 A. 719, 17 A. 161, 25 A. 396 ; but, as this feature is wanting, we will proceed to examine the issue presented.

The adoption of the Constitution of 1879 of itself vacated all offices held'under the previous Constitution and the laws in force under it, although the terms of these offices had not expired. 8 A. 401; Wilson vs. Wiltz, ante, page 688.

The Governor had the right to fill, in the manner pointed out by law, the vacancies thus occasioned, but as the defendants were in the actual discharge of their functions, holding over under constitutional authority until their successors were appointed and qualified, the power. of appointment eonld only be exercised by and with the advice and consent of the Senate.

Vacancies are either original,. constructive, or accidental, or absolute. They can only be filled when the power to do so is expressly conferred by the authority upon which this power is conferred, and in the mode provided by the Constitution or laws. A vacancy is original when an office is created and no one has been appointed to fill it. It is constructive when the incumbent has no' legal right or claim to continue in office, but can be legally replaced by_another functionary.

It is accidental or absolute when, the incumbent having died, resigned, or been removed, there is no one in esse discharging the duties of the office.

Executive appointments are authorized to be made by the Governor alone, or by him with the concurrence of the Senate. Where the appointment is subject to the action of the Senate, if the vacancy is accidental and occurs previous to or during, the recess of the Senate, and the concurrence of that body has not been had, the appointment is temporary and contingent upon confirmation. In the event it has not been confirmed, either because the name was not sent in or was rejected, the appointment becomes inoperative from the moment of adjournment or from the moment of its rejection, as the case may be.

Under the provisions of the laws creating the offices in question, the Executive is clothed with the power of appointment for the term designated, but can exercise it only with the advice and consent-of the Senate when that body is in session at the time the vacancy occurs.

It is true that a distinction is sought to be made in this respect with regard to the appointment of flour inspectors, the counsel contending that by the provisions of act 87 of 1876, the Governor has the authority to make this appointment without the concurrence of the Senate. We see no inconsistency between the act referred to and the previous act 71 of the extra session of 1870, which expressly provides that such appointments should be made by and with the advice and consent of the Senate. This act was not repealed by the subsequent act referred to. They both exist, are not inharmonious, and must be construed together. And this construction places all these officers upon the same footing, and we will treat them alike.

The vacancies in the cases before the Court were not original or absolute in character. They were constructive vacancies. They became so previous to the assembling of the Legislature by virtue and effect of the adoption of the present Constitution, and continued so during the session of the Senate, and have not ceased to be such.'

The relators were not appointed before or during the session of the Legislature, Their appointments have not been confirmed by the Senate. They are therefore inoperative, have never taken effect, and the defendants are entitled to hold over until appointments to these offices have been perfected and made effective by the required concurrence of the Senate, or, in other words, until successors have been legally appointed and qualified to replace them.

Such is the limit established by our j urisprudence and by that of our sister States, and by the highest judicial authority in the land, upon the exercise of the power of appointment by the Executive when the vacancies occur previous to or during the session of the Senate, and where the law requires the appointment to be made by and with the advice and consent of the Senate.

Baumbach vs. Dubuc, 9 A. 237 ; 5 R. 372 ; 1 Bruse 70 ; 2 Maryland, 355 ; 9 Paige, 507 ; 52 Mo. 559 ; 50 Miss. 607 ; 8 Cal. 408 ; 18 Wend. 578 ; 19 How. 74.

In People vs. Bissell, 49 Cal., it is expressly decided that if the term of the incumbent of an office, filled by an appointment of the Governor, requiring the confirmation of the Senate, has expired, but the incumbent still continues to discharge its duties, there is no such vacancy in the office as will authorize the Governor to fill it without the consent of the Senate.

If an office filled by appointment of the Governor requires the confirmation of the Senate, a vacancy therein, such as will authorize the Governor to fill it, without the concurrence of the Senate, can be caused only by the death or resignation of the incumbent or by the happening of some other event by reason of which the duties of the office are no longer discharged.

In Baumbach vs. Dubuc, 9 A. 237, decided in 1854, the Court said:

That the general gz’ant of appointing power is found in article 47 of the Constitution. It is vested in the Governor acting by and with the advice and consent of the Senate. The special grant in article 48 is restricted to filling for a limited time vacancies occurring during the recess of the Senate, and was made to avoid the inconvenience to the public service which would arise from leaving offices vacant during the interval which might elapse before the re-assembling of the Governor’s constitutional advisers.”

The jurisprudence on the exercise of the power of appointment by •the Executive in instances like that presented in the case of Baumbach vs. Dubuc, has become incorporated in and forms part of the Constitution subsequently adopted, and is explanatory of the articles of the Constitution on this subject. Laws in pari material are to be dealt with under the doctrine so established. Placing ourselves upon the firm ■principles which underlie the theories by which States are governed and public economy regulated and administered, it is our duty to say that were a contrary doctrine to prevail touching the Executive appointments and the authority of the Governor to fill vacancies, contrary to the views we have herein expressed, the constitutional or legal requirement of concurrent action by the Senate might be easily evaded, the exercise ’ of the power in question exposed to gross abuse, and the conditions precedent established by law as safeguards in such cases prove mere declarations. We therefore conclude that the article of the Constitution which confers upon the Governor the power to fill vacancies happening during the recess of the Senate do not extend to cases of vacancies occurring previous to or during the session of that body.

Thus conceding, we hold that the appointment of the relators by the Executive, until confirmed by the Senate, is inoperative, and that no successors'to the defendants have yet been duly appointed and qualified, and until they are displaced by officers possessing the requisites of this constitutional requirement the defendants must hold over and continue in the discharge of the duties of their respective offices.

It is therefore ordered, adjudged, and decreed that the judgments herein rendered by the Fifth District Court for the parish of Orleans in favor of the defendants be affirmed.

It is further ordered, adjudged, and decreed that the judgments herein rendered by the Fourth District Court for said parish in favor of the relators be reversed, and that there be judgment in favor of the defendants in said cases, the costs in all the cases, in both courts, to be paid by the relators.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1.
    State of Louisiana ex rel. Attorney-General et al. vs. John A Cheevers.
    This Court has no original jurisdiction of the question of eligibility of the judicial officers of the State, under Article 171 of the Constitution of 1879. That jurisdiction, as granted in Article 200, only applies to the removal of such officers and for such causes as are defined in Article 196 of the same Constitution.
    PPEAL from the Twenty-Second Judicial District Court, parish of Ascension. Hahn, J., in place of Cheevers, J., recused.
    J. C. Egan, Attorney-General, F. B. Earhart, District Attorney, and Paul Leche, Fred. Duffel, and Ed. N. Pugb, for Plaintiffs and Appellants.
    St. M. Berault and James D.^Augustin for Defendant and Appellee.
   The opinion of the Court£was^delivered by

Bermudez, C. J.

Charging the ineligibilityt of the defendant to the ofQ.ce of judge of the Twenty-Second Judicial District, the Attorney-General has instituted these proceedings against him, before the court of his domicil, to prevent him, for that cause, from entering upon the ■discharge of the functions of that office.

To justify such a demand, grave charges were preferred against him, under the provisions of article 171 of the constitution.

At the instance of the State, a preliminary injunction issued, but was afterward dissolved by this Court. 32 A. 649.

The defendant had excepted to the jurisdiction of the lower court on the ground that the original cognizance and determination of the matter involved appertain exclusively to the Supreme Court; but that exception was deemed not to be before us, at the time, for review.

From the judgment sustaining that defense, and dismissing the suit, the plaintiffs have appealed.

This action was brought1 before the defendant could have entered upon the duties of the office, that is, before the day on which the Twenty-Second Judicial District Court could have been organized had arrived. Its object was to prevent him from Ailing the office for causes anterior to and invalidating his election. It contemplated his exclusion, not his removal from that office. We viewed the litigation from that standpoint, when it first came before us. Although the application for a prohibition, upon which we acted, was leveled also at the question of jurisdiction, which was pending in the district court, we expressly abstained from passing upon it, because it was not then in a condition to be entertained and solved. As it is now presented in a proper form, we wiil proceed to examine it.

The object of this suit cannot be mistaken. The action was brought to prove an impediment to obstruct the defendant, or prevent him from entering upon the duties of the office. Its character or legal complexion was not, and could not be, changed or affected by the dissolution of the injunction, nor was it altered by any subsequent proceeding to propound facts which may, and no doubt have, since happened. It remains to-day in every respect with the same features which it possessed at the incipi-ency of the action, viz., a suit to prevent the induction into office of the defendant, for a cause of ineligibility, in existence prior to his election.

The jurisdiction of courts of justice, particularly of the highest tribunal of the State, pronouncing in last resort, should be earefully measured in matters of this description, and should not be enlarged so as to embrace, within its compass, cases which clearly were not in the contemplation of the framers of the constitution when they undertook to determine and fix the extent and limit of its authority, as a court of original jurisdiction, and delegated to it powers which, up to then, had been exercised exclusively by the Senate, upon charges properly brought.

The articles of the constitution, which define the original jurisdiction of this Court, in cases of removal of designated judicial officers, bear nnmbers 200 and 196, and read as follows :

Art. 200. “For any of the causes specified in article 196, judges of the courts of appeal, of the district courts, throughont the State, and of the city courts of the parish of Orleans, may be removed, from office by judgment of the Supreme Court of this State, in a suit instituted by the Attorney-General or a district attorney, in the name of the State, on his relation. The Supreme Court is hereby vested with original jurisdiction to try such cases, and it is hereby made the duty of the Attorney-General, or any district attorney, to institute such suit on the written request and information of fifty citizens and taxpayers residing within the territorial limits of the district or circuit over which the judge, against whom the suit is brought, exercises the functions of his office. Such suits shall be tried after citation and ten days delay for answering, in preference to all other suits, and wherever the court may be sitting; but the pendency of such suit shall not operate a suspension from office. In all cases where the officer sued, as above directed, shall be acquitted, judgment shall be rendered jointly and in solido against the citizens signing the request for all costs of the suit.”

Article 196. “The Governor, Lieutenant Governor, .Secretary of State, Auditor, Treasurer, Attorney-General, Superintendent of Public Education, and the judges of all the courts of record, shall be liable to impeachment for high crimes and misdemeanors, for non-feasance or malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, for gross misconduct, or habitual drunkenness.”

Those articles are found under the heading:

" Impeachment and removals from oeeice.”

It is patent that by article 200 this Court (for the first timé) was clothed with original jurisdiction over cases tending to the removal of judicial officers, for breach of official duties or inability to perform the same. The causes for which such removal can be provoked, are ■enumerated in article 196, to which article 200 expressly refers, and which, therefore, forms a vital part of it. Powers which, prior to 1880, were vested in the Senate alone, but which have not, however, been withdrawn from that body, were thus formally conferred upon this Court, which has, therefore, authority to exercise them for the same purposes, .and to the same extent that the Senate itself can, but only in the cases specified.

Among the causes set forth in article 196, as justifying the removal •of a district judge, is that of incompetency, which means, his inability to perform the duties of his office, resulting from physical or intellectual disqualifications charged since his induction into and during his tenure of office.

It is not possible to conceive how that original jurisdiction can, by any reasonable intendment of the constitutional provisions quoted, be made to extend to cases of exclusion from office, based upon causes' mentioned in article 171, in existence prior to the election and induction into office of the officer proceeded against. The convention which framed the constitution could have included those causes as it has done others, in article 196 ; but it has not done so. It contemplated that the suits in which this Court was to_have such jurisdiction were to be suits brought under art. 196, while the judge sought to be removed would be in the “ exercise ” of the functions of his office. The jurisdiction of this Court was to attach only for causes enumerated in that article, in suits brought after the induction of the officer whose displacement is asked, and was to be exercised exclusively upon charges of some of the wrongful acts embodied in article 196, and alleged to have been committed officially, and also upon charges of incompetency, for causes originating since such induction, or for causes existing previous thereto, and con-' tinuing 'thereafter.

A removal from office irresistibly implies a previous induction into, and actual tenure of, the office. There can be no escape from this proposition. The defendant, however, strenuously contends that the facts upon which the State relies to establish his ineligibility would, if verified, justify the charge of incompetency, provided for in article 196, and, consequently, bring the case, as instituted, within the original jurisdiction of this Court.

We cannot assent to that proposition. The suit was brought before the defendant had entered upon the office in question, and upon causes then known, and which are to the'effect that he could not have been, and was not legally eligible to the office. They do not affect his competency. They refer to his character or status at the time under article 171, but not to any physical, moral, or intellectual disqualifications or incapacity under article 196, occurring after his induction into office.

The defendant may well be ineligible and still be competent to discharge the duties of the office which he claims. He may also well be eligible and yet be incompetent. The words ineligibility and incompetency ave not synonymous or convertible, but are generic terms; causes of ineligibility are not causes of incompetency, and vice versa, in the sense of the constitution; for it views them differently, and contains two distinct articles providing separately for both.

Ineligibility refers to certain disqualifications existing previous to the election. A person elected to the office oí district judge may be ineligible for many reasons, either, because not a male, not a citizen, not of lawful age, not a licensed practicing attorney, or because excluded by judgment or impeachment from holding office, or because a defaulter; or an undischarged collector of taxes, or trustee of public money, would be ineligible, and still be very competent to discharge the functions of the office.

Incompetence refers generally to other disqualifications, occurring after induction into office. Such crimes as nonfeasance, malfeasance, corruption, favoritism, extortion, or oppression, gross official misconduct in the exercise of-official powers, and such disqualifications as habitual drunkenness, and inability arising from intellectual or physical infirmity existing before induction, and continuing thereafter, or happening during tenure of office, are causes to remove within the original jurisdiction of this court. A person may be incompetent to fulfill the office of district judge ; for instance, a qualified citizen and attorney, learned in the law, not chargeable with any offense under article 171, but afflicted with dumbness, deafness, blindness, general paralysis, surely would be incompetent, and yet may be eligible to the office. Ineligibility and incompeteney are not, however, causes exclusive the one of the other. They may exist simultaneously or separately ; a person may be both ineligible and incompetent at the same time. When the eligibility or competency of a judicial officer is questioned, the matter must be tested upon proper charges, of either the one or the other, before different forums.

Where the law, whether embodied in the constitution, or found in the statute book, or in both, has made a distinction between offenses committed prior to, and those committed after induction into office, and while in office, and has discriminated between causes of ineligibility and causes of incompetency, it is the duty of the Court to inquire, and determine whether the distinction was made, and, if it exists, to give it force and effect.

We take the rule to be, particularly in questions like that now before us, in which we are called upon to expound the language contained in the paramount law of the State — that the affirmative description of the cases, in which original jurisdiction was conferred on this Court, implies necessarily a negation of its jurisdiction over cases not enumerated.

We have inquired to ascertain whether such distinction and description had been made, and we find that they have. The constitution has left the law as it stood at its adoption, relative to cases of ineligibility to office; but it has delegated to this Court powers for the removal of judh cial officers, as comprehensive and effective as those vested in the Senate, sitting as a court of impeachment for the trial of such officers, upon proper charges, and in proper cases.

This suit cannot, under any aspect, be treated as one to remove the defendant from office, as its avowed object was to prevent him from entering upon it altogether. Under a final judgment, in favor of the plaintiff, the defendant, if in office, would have to vacate it or subject himself to forcible expulsion from it.

The disqualification of a judicial officer, entrusted with high powers and prerogatives, is a matter which is not to be lightly dealt with and which should command the fullest consideration of courts of justice.

Where the original jurisdiction of this Court is expressly restricted by the organic law to given cases of removal, we are powerless to expand it so as to comprise other cases intentionally omitted, in which the exclusion of officers is to be demanded by proceedings to be instituted before a competent court of inferior jurisdiction.

In 15 Cal. 120, views similar to those expressed in the body of this opinion were entertained in an analogous case.

While we are considering and determining a case instituted before the induction into office of a person claiming to have been duly elected district judge, and for a cause existing prior to his election, we think it our duty to say that we are not to be understood as holding that judicial officers, who may have actually entered upon the discharge of official functions though ineligible under article 171, or assailable under article 196, for incompetency, but who have not been proceeded against before induction (as the defendant was in this case), cannot, subsequently to such induction, upon proper showing, be expelled from such office. They surely could be made to vacate the office. Such result would have to be accomplished, in cases of incompetency, by the authority of this Court, taking original jurisdiction of a suit for that purpose against them, and in cases of ineligibility, would take place by the power of a ■district court, exercised under an executory judgment.

After a most attentive examination and thorough scrutiny of the articles of the constitution, bearing upon the questions before us, we unhesitatingly declare that, as our original jurisdiction over cases for the removal of judicial officers attaches only where they are charged with official crimes, official misconduct, or habitual vice, or personal or official disability or incompetency, we are utterly devoid of such jurisdiction over, and cannot determine primarily suits brought against, parties claiming to have been elected to a judicial office, when such suits, whether instituted before or after induction into office, are based upon causes incorporated in article 171 of the constitution, and charge the ineligibility of such parties, and, consequently, that such suits must be carried on before the districts courts having jurisdiction of the persons of such parties.

By their constitution, the people of this State, whose delegated powers we exercise, have said to us, as Moses in ancient times spoke to Israel, in solemn behest: “ Te shall not add unto the word which we command you; neither shall ye diminish aught from it — that ye may keep it.”

From such mandate we cannot depart. The j udgment of the lower court being erroneous,

It is ordered that said judgment be reversed, and proceeding to render such judgment as shouid have been rendered, it is adjudged that the exception of the defendant be overruled, and that he answer to the merits, and now, in order to enable the district court to pass upon the issues presented,

It is decreed that this case be remanded to the lower court, to be further proceeded with as the law provides, the defendant and appellee to pay the costs of appeal, and those of the lower court from the filing oí the exception.


author: Poché, J.

text:
    No. 2.
    S. M. Stinson, Guardian, et al. vs. Benjamin F. O’Neal.
    On Motion to Dismiss.
    The light to appeal is as much affected hy a partial execution of the judgment appealed from, as it is by a fall and complete acquiescence in it.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.
    J. L. Hargrove for Plaintiff and Appellant:
    Plaintiff has not acquiesced in the judgment; his acts were conservatory only.
    J. A. Snider for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

This is an action to annul a tax-sale of certain landed property, alleged to belong to the minor children of the late James N. Cooper, residing in the State of Texas with their mother, Susan M. Stinson, who has been appointed as their guardian, under the laws of Texas, and who, joined by her second husband, brings this suit in behalf of said minors, for the nullity of the tax-sale of their property in the parish of Bossier, which had been adjudicated to defendant; they also. sue for the fruits of the same ‘during defendant’s possession, and for damages caused to them by his illegal possession and use of their property. Defendant answered, urging the legality of his purchase, and the validity of his title to the lands in suit, and prayed in the alternative for the value of the improvements placed by him on the lands.

He subsequently abandoned all claims of title or ownership to the land, and the issue was thus narrowed down to the question of the fruits and revenues of the property, and of the damages claimed by plaintiff on the one hand, and of the compensation for useful improvements made on the property, urged by defendant on the other hand. The judgment of the lower court annulled the tax-sale, decreed the property to the minors Cooper, allowed them rent for the years 1877 and 1878, at one hundred dollars each year, and that of 1879 when due, which was one hundred and twenty-five dollars. The district judge allowed defendant for his improvements two hundred and forty-five dollars, and an additional sum of thirty-three dollars and twenty cents for taxes paid by him on the property.

Plaintiffs took an appeal from this judgment, and defendant moved to dismiss the appeal on the ground that plaintiffs had acquiesced in the judgment appealed from, by voluntarily executing the same.

The case having come up before our immediate predecessors, it was remanded by them to the lower court, for the purpose of taking testimony on and of trying the issue raised in the motion to dismiss the appeal, on the ground of plaintiffs’ acquiescence in the judgment appealed from.

The evidence taken, and the finding of the court a qua on this issue are now before us for our consideration.

The principle which debars from the right of prosecuting an appeal a party who voluntarily executes even partially a judgment rendered for or against him, is incorporated in our Code of Practice, and has received the interpretation and sanction of our courts in numerous decisions.

The only question with which we have to deal in the present instance, ’is the interpretation of the acts of plaintiffs touching or affecting the judgment rendered in their favor, and from which they had appealed.

The evidence shows that the judgment was rendered on October 3d, 1879, that the appeal was perfected on November 6th, 1879, and'that on the 26th of December, of the same year, plaintiffs filed a suit against one of the defendant’s tenants, for the rent of that year, and Fettedman, their attorney-in-fact, admits that he realized in that suit one hundred and fifty dollars, and that he rested his action on the rights conferred on ■ him by the judgment of October 3d, 1879. He further admits that he rented the identical lands in controversy for the present year, 1880.

In our opinion, these acts constitute an acquiescence in the judgment appealed from, and should debar appellants from further prosecuting their present appeal. Previous to the judgment appealed from, the lands were in the possession and control of the defendant, O’Neal, under his purchase, and before the judgment was rendered, plaintiffs could exercise no acts of ownership on or touching the property in litigation1 The very tenant whom they sued for rent 'had been placed on the premises by and under a contract with the defendant, and by suing him for rent plaintiffs judicially claimed and exercised the rights and advantages conferred upon them by this very judgment, and from no other source. They received rent-money, which was not theirs, without the effect of the judgment complained of by them; and the Court cannot tolerate their pretensions to reap the benefits of the judgment in its favorable features, and to ask in the same breath the reversal of the same judgment in other respects, when unfavorable to them. The right to appeal is as much affected by a partial execution of the judgment, as it would be by a full and complete execution of the decree in all its parts. 3 A., 115.

We cannot admit the distinction invoked by plaintiffs’ counsel in his attempt to show that the acts of plaintiffs were merely conservatory proceedings, to save such money which was in danger of loss, and to prevent depredations on the property in contestation. We consider these acts as acts of ownership coupled with possession, which both sprung exclusively from the judgment appealed from, and operate an unmistakable acquiescence.

It is therefore ordered, adjudged, and decreed that plaintiffs’ appeal be dismissed at their costs.


author: Todd, J.

text:
    No. 3.
    S. Herold vs. J. J. Stockwell.
    Although, the contracting parties have called a sale an agreement by which a planter pretends to sell his growing crop to his creditor for a certain sum of money, which, together with whatever may he realized irom the crop, shall he placed to the credit of the plant* er’s account with the creditor, — yet such a contract is not one of sale hut of security. The ownership of the crop is not transferred by it, and the relation of the parties is not that of vendor and. buyer, hut remains that of debtor and creditor.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    Hicks & Hicks for Plaintiff and Appellee:
    First — The contract between Blackwell-and Herold, whether a nominate or innominate contract, is a valid obligation. 12 A. 125-6, 531. It-was an executed contract on the part of Blackwell, and the crop was-completely vested in Herold, so that the vendor could not reclaim it; though, on the part of Herold, it was partly executed and partly executory and conditional. Story on Contracts, Secs. 236, 246 ; C. C. 2456,2021; 23 A. 405 ; C. C. 488,489,494. This interpretation, according to its form, is not shown to be different from their understanding of the contract, and must prevail. 4 L. 469.
    Second — The defendant, in taking possession of the plaintiff’s crop, and converting it to his own use, violated his obligations as lessor and committed a trespass, and owes him, the plaintiff, reparation, not only to the value of the cotton, but for his expenses in bringing and prosecuting this suit, including the fee of his attorneys, and also in vindictive damages. C. C. 3165, as amended, Acts of 1872, p. 36; C. C. 2315, 1934; 29 A. 214, 571; 15 A. 163., The highest estimate of the damages will be adopted, without compensating the defendant for his expenses in gathering the crop. 25 A. 417 ; C. C. 1891, 1892,. 1965 ; 10 A. 13 ; 3 A. 204.
    J. L. Hargrove for Defendant and Appellant:
    First — Whoever claims damages based on a deprivation of prospective-profits, must establish such facts in evidence as will enable the court to fix with certainty the amount of the deprived profits. 30 A. 264,. Bartley vs. City of New Orleans.
    Second — -He must show title. In such a case, the defendant Is entitled to allege, and to introduce, any pertinent evidence to prove the-nature and limitations of the plaintiff’s rights in the property, and in no event can he be held for a greater proportion of the damages than the nature and extent of the plaintiff’s rights in the property would equitably entitle him to claim. 30 A. 487, Burbank vs. Harris.
    Third — The attempt of a lessee or his vendee to forcibly remove from the leased premises property subject to the lessor’s privilege, is a. trespass sounding in damages. 29 A. 213.
    Fourth — The laborer having abandoned the crop without the consent and against the remonstration of his employer, forfeited his contract, and was not entitled to recover, and therefore his vendee could not. 23 A. 317, Bartel vs. Sadoudi.
   The opinion of the Court was delivered by

Todd, J.

The defendant leased to one Alfred Blackwell a part of a. plantation known as Mrs. Cane place, in Bossier parish, for the year 1879. The land leased was planted partly in cotton and partly in com by the-lessee, who was to pay for the rent one-tlrird of the cotton, and one-half of the corn produced thereon. On the 16th of August of that year, the lessee, Blackwell, executed in favor of plaintiff the following writing, to wit:

“ State of Louisiana,

"Parish of Oaddo.

“ For the consideration of fifty dollars, the receipt of which is hereby acknowledged, I agree to sell, and hereby do sell and deliver to' S. Herold, of the above State and parish, the whole crop of cotton and corn, exclusive of the one-third belonging to J. J. Stockwell for rent, grown by myself on what is known as the Oane place, in Bossier parish. It is further agreed that anything the crop of cotton and corn brings over the above stipulated price of fifty dollars shall be placed to the credit of my account, like the fifty dollars.”

Immediately after the execution of this instrument, the plaintiff sent to the leased premises laborers employed by him to take possession and control of the crop. The defendant would not permit these employees of the plaintiff to gather the crops, and compelled them to leave the place, and subsequently had the crops gathered, and refused to recognize any right thereto in plaintiff, but retained and disposed of the same. Thereupon the plaintiff instituted this suit for damages, and assessed the damages at $1050, the alleged value of the crops, and the further sum of $150 for attorney’s fees, for which sums judgment was prayed for.

The answer alleged the lease of the land to Blackwell; admitted that the gathering of the crops by plaintiff and his employees was prevented by him, and they made to leave the premises; charged that they were trespassers, and denied all the other allegations, and especially that he had incurred any liability to plaintiff by the acts complained of, and set up a reconventional demand for $4000, for damages caused by the alleged trespass.

There was judgment in favor of the plaintiff for two hundred and fifty two dollars and sixty-seven cents and interest, the amount of plaintiff’s debt against the lessee, Blackwell, and for the further sum of $150 damages. From this judgment the defendant has appealed.

The plaintiff bases his demand on the alleged violation of his rights, and the alleged retention of his property, claimed to have been acquired by him by the contract of the 14th of August, 1879, above referred to. This contract being the basis of the suit, its construction is the main question presented for our consideration. Did the plaintiff acquire the ownership of the property, the value of which he sues for by this contract? In other words, was this a contract of sale? The parties term it a sale, but courts will regard the essence of a contract rather than its form, or the name by which the contracting parties choose to designate it. 4 L. 469 ; 10 L. 243 ; 1 A. 254; 3 A. 294; 10 A. 533.

It is the very essenoe of a sale that it divests the ownership o'! the seller in the thing sold, and transfers it in fall property to the buyer. Did the contract in question effect this ? Did it invest the plaintiff with the complete ownership of the crops for the price stipulated, with the right to dispose of them and to retain and enjoy the entire proceeds of them ? An inspection of the instrument shows very plainly that it did not confer on the plaintiff any such right; did not invest him with complete dominion over the property. On the contrary, the last clause stipulated that the entire proceeds of the crops over the fifty dollars were to be placed to the credit of Blackwell, the alleged vendor, in the account owing the plaintiff by him. This alone is sufficient to preclude the idea that it was a sale. Nor was it a giving in payment, since such a contract, equally with a sale, transfers the property in full ownership to the purchaser, and differs from a sale mainly in making the delivery of the thing transferred essential to the completeness of the contract. In fact, it is one of those innominate contracts that may be likened in some respects to a pledge, but which could not confer on the transferee a larger interest in the property than sufficient to secure the payment of the debt that might be owing by the transferrer. If there were any doubt about the proper construction of this contract, that doubt would be removed by referring to the testimony of the plaintiff himself, to be found in the record, He says, “ my sole object in keeping the crop was to secure the debt which Blackwell owed me.” We do not think he is entitled to any thing more.

The defendant’s counsel insists that the demand should be rejected. He urges that the plaintiff was a trespasser upon the premises leased by the defendant to Blackwell, .and should be treated as such, and refers us to the case of Cooper vs. Cappel, in support of his views. This case differs from that in several essential particulars. In that case the term of the lease had expired; the rent was past due, and the lessee sold the cotton ginned and baled, and under pledge for the rent, and the only security for its payment, to other parties, who came upon the plantation, and in and by force and violence removed the cotton from the place. In this case the rent was not due; the crop had to be gathered before the rent could be paid — since it was by the terms of the contract to be paid in kind, and the evidence satisfies us that the plaintiff’s employees entered upon the premises, not for any illegal purpose, but to gather the crops, and the plaintiff offered to pay defendant the rent contracted to be paid by Blackwell, and the advances made to him by the defendant.

We do not think, however, that the evidence justifies the damages allowed by the judge a quo beyond the amount owing by Blackwell to the plaintiff, and which the transfer or pledge of the crop was intended to secure. The defendant was the lessor, and as such had a privilege and pledge upon the entire crops of the lessee, until his rent was paid. He may well have believed that a contract made by his tenant, which purported to transfer the crops then standing ungathered in the Held, and to provide for the occupation of the premises, and the gathering of the crops by strange parties, with whom he, the planter, had never contracted was intended to interfere with the rights which as lessor, he claimed under the pledge resulting from the contract of lease. There is no warrant in the evidence or the law for these damages, and in this respect the judgment must be changed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended, by rejecting the damages of $150, allowed therein, and affirmed in every other respect, plaintiff to pay the costs of this appeal.


text:
    No. 6.
    M. D. C. Cane, Tutrix, et al., vs. J. D. Cawthon, Sheriff, et al.
    A third person in good faith lending money to a minor by authority of a Court of competent jurisdiction, is protected by the Decree, whether the loan was necessary and used for the minor, or not. Previous Decisions re-affirmed.
    APPEAL from the First Judicial District Court, parish of Caddo. Taijlor, J.
    Wise & Herndon for plaintiff and appellee:
    First — The presence of the under tutor is indispensable at a family meeting, and a family meeting held without his presence and advice is illegal and void. R. C. C. 276; 6 N. S. 454 Commaux vs. Baibin, 10 La. top pg. 574; Stafford ux vs. Villair ei al. 941; Tutorship of Bates.
    Second — Minors are never estopped, and may go behind the proeeed- • ings of a family meeting, and judgment homologating the same, and show fraud and irregularities in the proceedings. 16 An. 98 ; Zuntz vs. Mrs. Courcelle et al. 1 H. D. pg. 9,18, 27 ; 5 Rob. 287; Dorse vs. Leaumont, 4 An.; Hull vs. Woods, 85.
    Third — Minors’ property cannot be sold without the benefit of appraisement. R. C. C. 346 and 342 ; Short, admr. vs. Piety, 3 Rob. 262; 14 An. 597 ; Roberts et al. vs. W. W. Brown et al.

    Alexander and Blanchard for defendant and appellee:
    First — The property of minors can be validly and legally mortgaged by the advice and consent of a family meeting, duly homologated by the probate judge. Civil Code 339, 340.

      Second — The proceedings in this case were formal and regular, and in strict accordance with the requirements of the above articles of the Code.
    Third — Mrs. Hatkinson and her agent, in making the loan, acted in good faith, relying on the decree of a court of competent jurisdiction, and without knowledge of any fraud — if any such there was— on the part of the tutrix or her agent.
    Fourth — “The decree of homologation was a sufficient protection to the lender of the money, and she was not bound to look beyond the decree in order to ascertain whether any debts of the succession were laid before the family meeting or not, neither was she bound for the judicious application of the money to the payment of the debts by the tutor, after she placed the money in his hands.” 13 A. 364, 9 L. 192,14 L. 467,16 L. 120, 17 L. 194, 7 R. 63.
    “ There can be no dispute at this day as to the entire correctness of the • proposition that third persons dealing bona fide are protected by final decrees rendered by courts having jurisdiction of the persons and subject matter before them, and this whether said judgments be right or wrong, honest or fraudulent.” Succession of Elliott, 31 A 35.
   The opinion of the Court was delivered by

Bermudez, C. J.

An order for the seizure and sale of certain real estate, represented as mortgaged to secure the payment of a loan of money ($4400), having been rendered, and steps having been taken for the enforcement of that decree, the plaintiffs have applied for and obtained an injunction, for the purpose of having it judicially declared that neither the debt, nor the mortgage claimed, have any existence. The injunction thus granted having been dissolved, the plaintiffs have taken an appeal, and ask that the judgment of the lower court be reversed, and that •their injunction be perpetuated.

The facts elicited during the trial of the case are the following :

Mrs. Cane, as legal tutrix of her minor grandchildren,, presented a petition to the proper probate court, averring reasons to •.show the necessity of borrowing, on giving a mortgage, a sufficient amount of money, to pay debts due by the minors, and praying for the convocation of a family meeting, to consider and pass upon the propriety of such loan and mortgage. Her prayer was granted. The meeting was held,and advised the loan and the mortgage. Theproces verbal of deliber- , ations was approved by the under tutor of the minors. The conclusions of the family meeting and of the under tutor were homologated, and the tutrix was authorized, by the Court, to borrow the amount, and to secure its payment by special mortgage bn the real estate described. With that authority in hand, acting in her official capacity, she contracted the loan, issued her note, and secured its payment by mortgage on the real estate designated, belonging to the minors.

From the mortgagee the note passed, by transfer and subrogation, to a third person, who, upon failure of payment, instituted and prosecuted the executory proceedings first mentioned.

The legal tutrix, and one of the minors emancipated by marriage, have enjoined the seizure and sale of the property on several grounds, which are substantially: first, that it was unnecessary to make the loan; second, that the money obtained did not inure to the benefit of the minors, but was borrowed for the use of their tutrix, to the knowledge of both the mortgagee and subrogee ; third, that the proceedings were irregular and are not binding, because the under tutor of the minors was not present at and took no part in the deliberations of the family meeting.

In 13 A. 364, this Court held: The decree of homologation was a sufficient protection to the lender of the money, and she was not bound to look beyond the decree in order to ascertain whether any debts of the succession were laid before the family meeting or not. Neither was she bound for the judicious application of the money to the payment of the debts by the tutor, after she had placed the money in his hands.

In 31 A. -35, this Court again held: There can be no dispute, at this •day, as to the entire correctness of the proposition, that third persons dealing bona fide are protected by final decrees rendered by courts having competent jurisdiction of the persons and subject matter before them, and this, whether said judgments be right or wrong, honest or fraudulent.

In 28 A. 418, which is a ease somewhat similar on principle, the -Court protected an innocent third person against unwarranted assaults from a fully emancipated minor.

These rulings are supported by abundant authorities. 9 L. 192 ; 14 h. 467; 16 L. 120; 17 L. 194; 7 B. 63.

The testimony signally fails to show any fraudulent intent on the part of the tutrix, and still less the knowledge of such intent charged on the mortgagee and subrogee. These were heard as witnesses on the trial of the case, and have unhesitatingly testified to the reverse of the charges propounded against them, in a- manner conclusive [of their -entire good faith throughout the whole transaction.

The evidence does not destroy the presumption which attaches to the correctness and authenticity of the procés verbal of the deliberations of the family meeting, from which it is legitimate to infer that the under tutor was present at the assembly. It is proper to remark that the petition, presented by the tutrix for the homologation of those deliberations, was expressly concurred in by the under tutor in person.

We do not think that this is a case in which damages can now be allowed. The lower judge properly reserved the alleged right of the defendant in injunction to demand the same in a different action.

The judgment of the district court is therefore affirmed with costs.


author: Fenner, J.

text:
    No. 5.
    Tutorship of the Minor Heirs of H. & M. J. McCormick.
    This Court will not infer that the. judge of the Probate Court, when he rendered his judgment in chambers, homologating the Deliberations of the family meeting, did not have the process-verbal before him, because tbe judgment was signed on the 25th of October 1877, and the Petition of the Tutrix praying for the homologation, the process-verbal and the judgment were only filed on the 26th October 1877. It is of common practice to place such papers in the hands o± the judge for his consideration and signature in chambers, and to file them after he has signed the judgment.
    There is no reason to disturb on appeal the decree of the Probate Court homologating the Deliberations of the family meeting and authorizing the mortgage of minors’ property, when all the requirements of the law for such mortgage have been fulfilled and the decree rendered on proper evidence of the same.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    Wise & Herndon for Appellants :
    First — The homologation of the proceedings of . a family meeting involving the interests of minors, will be set aside on appeal, when it appears that the lower court, at the date of the homologation, had no evidence before it going to show whether the recommendation of the family meeting would injure or benefit the minors. 32 A. 97, Succession of Henry J. Forstall.
    Second — The law requires the testimony of witnesses in cases before courts of probate shall be taken in writing and annexed to the record, and a list shall be made of such documents as are produced by the parties, and are not annexed to the record, that they may be read on the appeal. This provision of law has always been held to be imperative. C. C. p. 1042; Polk vs. Childress, 4 A. 500; Tomkins vs. Benjamin; 16 La. 200 ; Graham vs. Graham Heirs, 16 La. 203 ; Reihl vs Nortin, 29 A. 17. •
    L. M. Nutt for Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This appeal is taken by an emancipated minor, in her own behalf, and by an under tutor in behalf of two other minors, from a judgment homologating the deliberations of a family meeting, and, in accordance with the recommendation thereof, authorizing the tutrix of said minors to borrow twelve thousand dollars for the use of the minors, and to give a mortgage on their property to secure the same.

The petition filed by the tutrix sets forth fully the motives and purposes for which the loan was required. The procés-verbal of the family meeting recites that “ after considering said petition and hearing the evidence adduced before them, after due deliberation, said meeting advised as follows: that the revenues of said minors 'being insufficient to pay the taxes and other debts now due and exigible from said minors, and, further, it being necessary for the protection of mortgage rights held by them that money should be raised for them with which to pay taxes on property mortgaged to them, it is the opinion and advice of this meeting that M. D. C. Cane, tutrix, be authorized and empowered to borrow, etc., and to execute a mortgage,” etc.

These proceedings took place on October 24th, 1877, and are approved by the under tutor. A petition was then prepared by the tutrix presenting the aforesaid procés-verbal, and praying for the homolo-gation thereof, to which petition is attached an acceptance of service, waiver of time, and consent to the, homologation, signed by the under tutor under date of October 24th, 1877 ; and upon it are indorsed the order and judgment of the judge homologating the proceedings and granting the authority prayed for, in accordance therewith, which judgment recites that it is done and signed in chambers this 25th day of October, 1877.”

The whole of these proceedings, viz.: the petition for homologation, the procés-verbal of the family meeting, the consent of the under tutor, and the judgment and order of court, are indorsed as having been filed on the 26th of October, 1877 ; and the counsel for appellants contends that, as the judgment of the court is dated October 25th, and the procés-verbal of the family meeting is filed only on the 26th, we must infer that the judge,at the time of rendering his judgment, did not have, before him, even, the proces-verbal, and was, therefore, without any foundation for his action. We think it is patent on the face of the record that the petition and accompanying documents were presented to the judge, that he made his order thereon in chambers, and when returned by him to counsel, the whole were filed in court together. This is not an uncommon practice in such cases, and we see nothing harmful in it. It explains the discrepancy in date, and leaves no ground for the improbable inference, sought to be drawn by counsel, that the judge homologated the proceedings without even having before him the procés-verbal thereof, or knowing what the proceedings were.

If this inference were sustained, it might bring this case within the doctrine of Succession of Eorstall, 32 A. 97. There, the lower court had homologated the proceedings of a family meeting recommending the approval and ratification of an act of compromise, and the court had actually confirmed said compromise, although it affirmatively appeared that at the time of rendering his judgment the judge had never had before him the act of compromise or any statement or evidence showing in any manner the nature thereof, but acted simply on the procés-ver-bal of the family meeting, which merely referred to the compromise as embodied in a separate act not filed, and did not state its nature or objects. Our predecessors rightly held that the confirmation of the compromise was a judicial act, invplving the exercise of judgment, and could not be validly made by the judge when he had nothing before him to show even what was the compromise which he was confirming.

In the case at bar, we are satisfied the procés-verbal was before the judge when he acted ; and that set forth fully the nature, object, and purposes of the order asked, and the reasons on which the family meeting acted in recommending it. The judge was thus fully enlightened as to what he was doing; and if the order asked seemed to him proper, and the reasons of the family meeting satisfactory, and as the under tutor, instead of opposing, expressly concurred in the recommendation, we know of no law requiring him to create a oontestatio litis not provoked by any parties interested, and to take further evidence to satisfy his own mind when his order shows it was already satisfied. Such a requirement would certainly introduce a novelty in practice, would operate a surprise upon the profession, and would invalidate a multitude of probate proceedings. We do not interpret the Eorstall decision as sanctioning such doctrine.

We think the law exhibits sufficient watchfulness over the interest of minors in the granting of such orders, in requiring, first, an application by the tutor usually supposed to be concerned for the interest of his wards; second, a reference to a meeting of their relatives and friends to consider, advise, and report for or against it; third, the action of their under tutor, specially appointed to protect their interests against any improper action of their tutor; fourth, the final approval of the judge with all the prior proceedings before him.

When all these concur, and the proceedings on their face show a sufficient foundation for the action had, in the absence of any contest at the time, we find no warrant for reversing the judgment of the court.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed at appellant’s cost.


author: Levy, J.

text:
    No. 4.
    John Gibson et al. vs. Mary E. Dooley et al.
    An action to annul a -will was properly brought in the Parish Court, before the Constitution of 1879, even after the heirs had been put in possession.
    A will made in favor of a concubine, and in violation of Article 1481, C. CM is null and void.
    ÁPPEÁL from the First Judicial District Court, parish of Caddo. Taylor, J.
    J. L. Hargrove for Plaintiffs and Appellants :
    First — “ The compromise fell the moment the obligor refused to perform the conditions.” 23 A. 712, Barrett vs. Hord.
    Second — The defendant cannot be permitted to enjoy the fruits of the compromise, and al the same time repudiate the corresponding obligations imposed on him by it. 23 A. 784, Stewart vs. Haas.
    Third — Aleatory contracts are contracts generally as to a hazard, and not binding until performed by each party, and cannot be plead without proof of consummation by each, and may be attacked or explained in any manner or suit when attempted to be plead or enforced.
    Fourth — 'When a party comes into a court of law or equity for relief he must show and prove that he has done on his part what law or equity requires. “ Maxims.” i

    Fifth — No cause of action arises from a bare agreement, nudum pactum.

    Sixth — “ The parish court has exclusive jurisdiction of suits to annul wills, and set aside the probates of the same.” 30 A. 752, Hoover vs. York & Hoover.
    Seventh — “ The nullity of proceedings for the probate of a will, and of the orders in execution of it, must be sued for in the court which decreed the probate and made the orders.” 30 A. 752.
    Looney & Elstner and Hicks & Hicks for Defendants and Appel-lees.
   The opinion of the Court was delivered by

Levy, J.

This suit was brought in the Parish Court of Caddo by the heirs (brothers and sisters) of C. W. Gibson, deceased, for the purpose of annulling the will of said Gibson. The petition was filed in said parish court on the 3rd of December, 1879, and its prayer, after that for citation etc., is as follows : “ And on final hearing of this case they pray that the said will of C. W. Gibson, deceased, and the probate of the same, be annulled, set aside and vacated, and be declared of no effect as to petitioners, or to any portion of the immovable property of the succession of O. W. Gibson, deceased.” The suit thus instituted in the parish court was by virtue of the provisions of the Constitution of 1879 transferred to the district court of Caddo, the successor of said parish court, the business of the latter being merged in that of the district court.

The defendants filed in the parish court an exception to its jurisdiction on the ground that the succession- of Gibson had been long since closed, and the property thereof delivered to the heirs, legal and instituted, and therefore the parish court was without jurisdiction to hear and determine the case presented for adjudication in plaintiff’s petition. This exception was tried in the district court after the cause had been transferred thereto, and the exception was overruled. The court did not err in its action. The parish court during its existence had jurisdiction of cases in which the only question involved was the nullity or validity of a will, and the demand was only to decree its nullity and vacate the dispositions made in it.

The prayer of the petition, whicn we have quoted above, determines the character of the action, and clearly brings the case within the jurisdiction of the parish court, the district court taking the case, as its successor, as it stood. The original investiture of jurisdiction was transmitted to the district court by operation of the Constitution. The decision in Robert vs. Allier, 17 La. 15, relied upon by defendants, and the other cases cited as affirming the doctrine therein laid down, fully sustain our views on this subject. In that case (17 La. 15) the Court said : “Whenever the validity or legality of a will is attacked and put at issue at the time that an order for its execution is applied for, or after it has been regularly probated and ordered to be executed, but previous to the heirs or legatees coming into possession of the estate, Courts of Probate alone have jurisdiction to decree it void, or say it shall not be executed. But, where an action of revendication is instituted by an heir at law against the testamentary heir or universal legatee who has been put in possession of the estate, and who acts upon the will as his title to the property, district courts are the proper tribunals in which suits must be brought.” See 31 An. 506 ; 26 A. 611; 25 A. 144; 28 A. 367. Here no action of revendication was instituted, but simply a suit for the nullity of the will. There is no prayer for ejectment, or that plaintiffs may be put into or quieted in their possession of property claimed under'the will.

Defendants then filed their answer, in which they made a general denial, and specially averred that since the filing of the suit “ the plaintiff, by solemn act and deed, sold, transferred, and relinquished to defendant all the property, rights, demands, and claims set up in this action,” a copy of which, act and deed was annexed to her answer. Plaintiff objected to the introduction in evidence of this deed or agreement (purporting to be a transaction and compromise), and moved to strike out the second portion of the answer, in which the above mentioned special averments were made. The simple issue presented to the court was that of the nullity or validity of the will, and the compromise or transaction, whatever might be its effect as to the property relinquished, had no relation nor bearing to the question involved, i. e., the validity of the testament. It was totally irrelevant as regards the demand in plaintiff’s petition, and the evidence offered to sustain the answer should not have been admitted on the trial of the case.

The grounds on which the nullity of the testament are urged are that the defendant, Mary E. Dooley, the legatee under said will, then known as Eliza Gibson, and the said C. W. Gibson, “ had been living together long before and at the death of the said C. W. Gibson in open concubinage, said Eliza Gibson being the kept woman or concubine of the said C. W. Gibson for many years previous to and at the time of making and signing said will; that the said will and bequest are contrary to public policy, and the policy of the law, and is and was in positive violation of article 1481 of the Civil Code of Louisiana.” The evidence in the record fully sustains the allegations of plaintiff’s petition in this regard. The fact of the concubinage between the parties is fully established, and the nullity of the testament must be decreed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and proceeding to render such judgment as should have been rendered in this case, it is ordered, adjudged, and decreed that the will of Charles W. Gibson, deceased,'made and signed on the 30th day of July, 1869, and admitted to probate by the Parish Court of the parish of Caddo, be, and the same is hereby annulled and avoided, and the order of said Probate Court, admitting said will to probate, be set aside.

And it is further ordered, adjudged, and decreed that all the rights and claims, which the respective parties may have under and by virtue of the act and deed of transaction and compromise of the 23rd of December, 1879, be reserved to them, and that the appellees do pay the costs of this appeal, the costs of the lower court to be paid by.the defendants.


text:
    No. 7.
    John B. Durham vs. Julia Williams, Tutrix, et al.
    The general denial and plea of Novation set up in Defendant’s Answer, are not inconsistent in this case, because it is the legal consequences of the facts alleged by Plaintiff, that Defendants deny; and the special defense of Novation is only pleaded in the alternative.
    Tn such a case, the Plaintiff is not relieved from the necessity of proving his allegations.
    The Plaintiff, having in previous suits alleged that the consideration of the debt now sued upon, enured to the benefit of another party, is estopped from alleging and proving that it enured to the benefit of the present Defendants.
    APPEAL from the First Judicial District Court, parish of Caddo, Taylor, J.
    Land & Land for Plaintiff and Appellee
    First — Admissions in the answer relieve plaintiff from proving his demand, and throw on defendant the onus of establishing his defense. So the pleas of payment, novation, dr compensation, admit the existence of the debt, whose continuance will be presumed, and plaintiff will have judgment, unless defendant make good his plea. 3 N. S. 273 ; 12 L. 397 ; lá L. 372 ; 48 L. 6 ; 14 A. 54.
    Second — The legal effect of a special defense cannot be avoided by a reservation in the answer, that the party does not intend thereby to waive the general issue. 14 A. 868.
    Third — Where a tutor gives his individual notes for the amount of an account against the minor, there is no novation, and prescription is interrupted on the account. 12 A. 299, 840. The delegation of another debtor does not operate a novation, unless the creditor has expressly declared that he intends to discharge the original debtor. This is a case where a mortgage note was given and sued on. 11 A. 39 ; C. C. 2192.
    Fourth — One who files a special plea is to be judged on that plea, and none other; all else is admitted. 9 A. 528.
    Fifth — The evidence does not show any express declaration or intention on the part of the plaintiff to discharge the defendants.
    Alexander & Blanchard for Defendants and Appellants:
    Plaintiff, as merchant and cotton factor, dealt largely with Julia Williams- and husband, in their individual capacity, for a period of time running through four years, during which time Mrs. W. and husband were engaged extensively in planting on a place belonging to her and her minor children, by a former marriage, in the proportion of' about one fourth to her, and three fourths to them. The debit side of these transactions ran up to over $39,000, and the credits to over $32,000. For the balance in favor of the plaintiff, something over 17000, he took the individual notes and draft of Mrs. W. and husband, and receipted the accounts as “paid” and “settled.” The notes not being paid, he instituted suit on them against Mrs. Williams individually, alleging the indebtedness to have enured to her separate benefit. Subsequently, he goes back over the entire mass of accounts, culls from some such items as he thinks he can prove enured to the benefit of the minors, groups them in one account made out against Mrs. Williams as tutrix of the minors, and then brings this suit. He cannot recover :
    First — Because the debt is that of Mrs. Williams and husband, and not of the minors.
    Second — Because plaintiff cannot be heard to contradict the allegations of his suits against Mrs. Williams on the notes, by alleging and proving the indebtedness enured to the benefit of the minors, instead of to her.
    Third — Because the minors’ share of the credits received by Durham far overbalance that part of the indebtedness, if any, which enured to their benefit.
    Fourth — Because their share of a reasonable rent of the place would far overbalance any claim he has against them. Having received all the cotton raised on the place, he should be considered as having received the rents belonging to them, knowing, as he did, that the greater part of the place was theirs.
    Fifth — Because the claim, as to the minors, is novated.
   The opinion of the Court was delivered by

Poché, J.

The minor heirs of B. F. Hollingsworth are sued in this case on an open, account for the sum of $4802 40, for a debt alleged to have been contracted with plaintiff, for account of said minors, by their natural tutrix, Julia Hollingsworth, now the wife of F. R. Williams, the oo-tutor of the minors. Plaintiff alleges that the debt sued on enured to the benefit of the defendants, minors, in cultivating and improving their plantation situated in the parish of Bossier; and he also claims a sum of $28 50 in re-imbursement of taxes paid by him, for their account, on their property in the city of Shreveport.

This petition is met by defendants in an answer and supplemental answer, in which they urge the following pleas and defenses :

They begin by denying generally all of plaintiff’s allegations.

They then specially deny any indebtedness on the part of said minors to plaintiff, and allege that all business transactions and accounts made and carried on, touching the plantation owned in part by the Hollingsworth minors, were with, in the name, and for the individual account of F. R. Williams, and his wife Julia Williams, who cultivated the plantation for their own advantage in the years 1874-5-6-7-and-8, and dealt with plaintiff as their factor and commission merchant during this time, carrying with him an annual running account, from which were selected for the purpose of this suit the various items making up the account now claimed by plaintiff from said minors.

And they conclude with the allegation, that if said minors were ever indebted to plaintiff, which they specially deny, that such indebtedness was extinguished by novation through the acts of plaintiff, who accepted in, settlement of his balance of account, the individual notes of Mrs. Julia Williams and her husband. The judgment of the lower court was in favor of plaintiff for the sum of $909 97, from which defendants have appealed, and urge its reversal, and plaintiff, joining in the appeal, prays that the judgment be amended so as to allow him the full amount claimed in his petition.

At the threshold of the case we are met by a motion filed by plaintiff, who moved to strike out the plea of novation filed by defendants, or to order them to elect between the general denial and the plea in novation, for the reason that the two pleas are inconsistent and contradictory.

This motion was refused by the district judge, and the cause was tried on the two pleas. On appeal, plaintiff earnestly urges the grounds of his motion, and contends that the plea of novation waives the general denial, and that the burden of evidence is on defendants to maintain their plea of novation, in default of which plaintiff is entitled to his judgment, and is relieved from the necessity of administering proof of his account, and of the averments of his petition.

The judge who rendered the judgment (who was not the same who had previously overruled plaintiff’s motion to strike out), adopted plaintiff’s legal proposition, and based his judgment thereon. In his opinion, after reviewing the evidence on the question of the minors’ indebtedness to plaintiff, he says: “ Under the circumstances of this case, I should not hesitate to relieve these minors if they had contented themselves with pleading the general issue. But they have pleaded novation, and this plea waives the general denial, and imposed upon them the burden of showing that the debt sued on has been extinguished.” The judge then concludes that plaintiff having accepted in part payment of his claim a mortgage note of $3500, executed by Mrs. Julia Williams, he thus novated his claim pro tanto, and the judge concludes that the minors are bound for their share of the balance, which he decrees against them.

As the proper solution of the status of defendants’ plea underlies the whole difficulty of the case, we must dispose of that question at once.

We are constrained to differ with, our learned brother of the district court in his conclusion on this feature of the pleadings. We are of opinion that the two pleas as interposed by defendants are not inconsistent.

Defendants’ plea of general denial is not leveled at averments of simple facts, but at allegations of facts pregnant with a legal proposition or deduction. They do not deny the existence of the account sued on, nor the averment that the items charged therein were furnished to their plantation, but they deny that such an account, such dealings, and such transactions could, by operation of law, make them the debtors of plaintiff; but they aver that if such an indebtedness can be legally deduced from such state of facts, that the indebtedness has been extinguished by novation in the manner suggested in their answer.

This plea is merely in the alternative, and has been sanctioned by our jurisprudence in many instances.

In 4 N. S. 492, the defendant urged in defense payment of the note sued upon, and want of consideration, and the court held the pleas good.

In 25 A. 185, plaintiff sought to annul a mortgage on the property óf Labatut in favor of the parish of Points Coupée; the defendant answered by denying that the land was owned by Labatut, averring that it was the property of the succession oi IZónon Porche, and concluded by averring that the mortgage was valid and binding, and it was held that the pleas were not inconsistent.

In 10 A. 539, defendant pleaded the general issue, which put at issue the employment of plaintiff, and then admitted that plaintiff had done work for him, but averred that he had paid for the work, and the court ruled that the general denial was not waived by the plea.

In 12 A. 17, the court uses the following language : “ In Barry vs. Kimball, 10 A. 787, we declared the rule to be, both upon principle and authority, that a consistent answer, which does not admit that the defendant ever incurred a legal liability to the plaintiff, could not relieve the latter from the necessity of proving his demand; but that an answer which admitted the former existence of such an obligation, and averred its extinguishment or discharge, would dispense the plaintiff from any preliminary proof of the obligation, and impose upon the defendant the burden of proving the matters pleaded in discharge.”

Similar rulings, with slight difference, were made in 17 L. 459 ; 16 A. 334. We have carefully reviewed all the authorities quoted and relied upon by the district judge as well as by plaintiff’s counsel, and we fail to see that their position is at all strengthened by any of the rulings which they invoke.

In all these authorities the general denial was unqualified, and put at issue the absolute existence of a distinct and palpable fact, not enlarged by a legal deduction, and defendants, proceeding to interpose a. special plea, based upon the existence and verity of the very fact just denied, were correctly held to have waived the general denial.

For instance, in the case of 3 N. S. 75, quoted by the district judge,, the defendant, in a suit on a written contract binding him to deliver a certain quantity of cotton, first pleaded the general issue, which necessarily denied the existence or making of the contract, and afterward pleaded that the contract, being synallagmatic, two copies had not been made according to law.

In 6 N. S. 226, defendant being sued for the purchase price of a tract of land, set up the plea of general denial, which carried with it the flat denial of any purchase, and in the same answer attempted to plead payment. If there had been no sale there could be no payment, and the pleas were, therefore, inconsistent.

In 14 A. 54, quoted by both the judge and plaintiff’s counsel, defendant was sued for the price of repairs alleged to have been made to his schooner ; his plea of general denial denied the fact of any repairs, having been made as alleged, and was inconsistent with' the further pleas of payment, novation, and with a demand in reconvention.

We fully recognize and re-affirm the doctrine that an unqualified plea of general denial of facts alleged is waived by a plea which necessarily admits the existence of such facts. But the mere statement of the authorities quoted shows that they have no application to the case at bar, where the general denial had reference to a proposed legal deduction from an alleged state of facts, and partakes of the nature of a peremptory exception. And so of the other cases quoted by plaintiff’s counsel. Our conclusion is, therefore, that plaintiff, in the progress-of his suit, must meet the general issue, and prove up his claim. And in order, doubtless, to make assurance doubly sure, plaintiff, notwithstanding his assertion that the general issue had been waived by the plea of novation, proceeded to introduee'evidence in support of his allegations.

But he was met by an objection from defendants to the introduction of any evidence tending to show that the items charged in plaintiff’s account in suit had enured to the benefit and advantage of the minors, on the ground that in two suits against Mrs. Julia Williams, on notes executed by her to represent indebtedness covering the identical-items contained in the account now charged against these minors, plaintiff had specifically alleged that the consideration of this very indebtedness had enured to the separate benefit of Mrs. Julia Williams, and of her separate estate. Defendants’ objections were overruled by the district judge, on the ground that the objections went to the effect, and not to the admissibility of the evidence, and on the further ground, that plaintiff could sue Williams and wife on the contract created by their notes, and at the same time sue the minors on the ground that the-consideration of the notes had enured to their benefit.

We cannot assent to this ruling of the judge a quo, and we hold that the objections should have been sustained, and that the evidence should have been excluded.

If, as plaintiff alleges in his two suits against Mrs. Williams, she and her separate estate had been benefited by the contract in suit, under and by the help of which she and her husband had been enabled to carry on their planting operations, how can he ask the court to decree that these contracts enured to the benefit of the minors, who were no parties to the dealings and transactions covered by these accounts,, and whose share (19-24ths) of the plantation was being used in the planting venture without remuneration or compensation,'and without the authority of law, as required in the administration of minors’ property ?

We are clear that the judicial declarations in the two suits against Mrs. Williams operated an absolute estoppel, in the way of plaintiff, from making the identical allegations against other and distinct parties, on the same cause of action. One proposition is conclusive of the other.

But if the evidence introduced by plaintiff had been-legally admitted, we think that even then plaintiff would have failed to make out a ease against these minors.

Both himself and his book-keeper, in their testimony, admit that his books contained no account or charges against the Hollingsworth minors, either in their name, or that of their tutrix, but that all these accounts were in the name of Mrs. Julia Williams and her husband in their individual capacity; that the account sued upon was made up-after all these transactions had been closed on the books, by selecting here and there, from these long series of accounts, items which in plaintiff’s opinion could show an indebtedness which he could enforce against the minors.

Plaintiff says himself that he had always believed .that Mrs. Julia Williams owned in her own right more than one- half of the plantation, and hence he had dealt with her in perfect security, until he discovered his error, and that she owned but 5-24ths of the property. It was then, and only then, that he began to tax his ingenuity for means to reach the minors, whom he had never before contemplated or considered in all his dealings in the premises.

He has, therefore, no claim whatever against them, save and except for the sum of $28 60, which he claims in re-imbursement of the taxes which he has paid for them on their property in Shreveport.

The view which we have taken of the cause enables us to do full justice to the parties, without an examination of or expression of opinion on the plea of novation, or on the other bills of exception retained by defendants.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that plaintiff’s claim on the account sued on, against the minor heirs of B. E. Hollings-worth, be rejected; and it is further ordered that defendant do recover of the minors aforesaid the sum of j?28 60 ; and, finally, that the defendants pay the costs of the lower court, and that plaintiff pay the costs of appeal.