author: Taliaferro, J. Wyly, J.

text:
    No. 5192.
    Thomas McNeil v. Peter J. Kramer et als. City of New Orleans in Warranty.
    Tkis is a suit to annul a tax sale ky a justice of tke peace and recover tke property tkus disposed of. All property seized under writs of justices of tke peace, wketker tke same be movable or immovable, must be appraised and sold in tke same manner as property seized and sold by sheriffs. None of the formalities required and made necessary by law to constitute a seizure by tke skeriff or otker officer of the parishes of Orleans and Jefferson having been complied with in tkis case, it follows that nullity of tke sale is tke consequence.
    As defendants in their answer set up no reconvontional demand for taxes paid by them since their pretended purchase of tke land herein decreed to belong to plaintiff, no relief can be given in that regard.
    APPEAL from the Superior District Court, parish of Orleans. Uaiolcins, J.

      S. P. Blanc and T. Denegre, for plaintiff and appellant. Peter J. Kramer, for defendant and appellee.
   Taliaferro, J.

This is a suit to annul a tax sale. The judgment of the lower court was in favor of the defendant, dismissing the plaintiff’s demand, and the latter has appealed.

McNeill, the plaintiff, living in Missouri, bought through his agent, Murphy, residing in New Orleans, two vacant lots in the then city of Jefferson. At that time there were no taxes against the lots, but subsequently the corporation of the city of Jefferson levied upon them a tax of $7 50, and in October, 1869, instituted suit before the Eighth Justice’s Court of Jefferson parish, obtained judgment and caused the lots to be sold. They were adjudicated by the constable of that court to Peter J. Kramer and Jacob Hassinger at the price of $5. Seven or eight months after this sale, Murphy, the agent, went to the purchasers and offered to redeem the lots, offering to pay a sum larger than was required by law to redeem them, but the purchasers demanded $200. This extortionate sum Murphy refused to pay, and he brought this suit to recover the property, alleging various nullities in the proceedings and claiming that the pretended sale set up by defendants is null and void. The suit was brought against McNeil as a resident of the State, when in fact he was and still is an absentee. It is insisted that he was never cited, either by citation in the ordinary form or by the notice published in the official journal, made to stand in lieu of citation. The evidence in the record bearing upon this point is, that on trial of the case in the court below, the defendant offered to show by a copy of the newspaper called “The Jeffersonian,” alleged to be the official journal of the city of Jefferson, that the required notice had been given by publication in that paper. The plaintiff objected to the introduction of the paper on the ground that it was not shown to be the official journal of the city of Jefferson, and he alleged further that he was able to show, by the testimony of two persons named, that “ The Jeffersonian” was not the official journal of the city of Jefferson in 1868 and 1869, when these proceedings were going on, but that “The Standard” and “The Louisiana Register” had successively been the official journal of that city, and that the'delinquent tax lists for taxes of 1868 had not been published in either of those papers. An agreement of counsel is found in the record, by which the plaintiff was allowed time to obtain the testimony of the witnesses named, the case to remain open and unsubmitted until the testimony of the witnesses, to be taken out of court, was presented to the court. It appears from a bill of exceptions, embodying the plaintiff’s objections to the admission of “The Jeffersonian ” as the official journal, that the judge proceeded to judgment in the case without waiting for the testimony desired by the plaintiff, which ruling is also excepted to and appears in the bill. When judgment was obtained against McNeil, proceeded against in the justice’s court as a resident of the State, a fieri facias was issued and the constable returned on the notice of seizure that McNeil was a nonresident. Thereupon a new suit was brought in January, 1870, against McNeil as an absentee for the same tax, and the suit was carried on contradictorily, with a curator ad hoc appointed to represent him. Judgment was rendered in this second suit against McNeil. But the fieri facias issued in the first suit, the old writ in the hands of the constable before the last judgment was rendered, was the fieri facias under which the lots were sold to satisfy the last judgment. This writ of fieri facias expired before the day of sale, ninth of April, 1870. It was issued on the twenty-seventh of December, 1869, and was returnable in thirty days thereafter. It was not returned by the constable and a copy taken out in the regular way. The original fieri facias is annexed to and makes part of the record. It shows that the Eighth Justice of the peace indorsed “renewals” on the back of the writ — the-first one on the twenty-seventh January, 1870; the second, twenty-seventh February, 1870, and the third, twenty-seventh March, 1870. The constable’s indorsement across the back of the writ shows there was no return of the writ during the entire interval that elapsed between the day on which it was issued and the day of sale. It is especially urged that there was no legal seizure of the property made. None of the formalities required and made necessary by law to constitute a seizure by the sheriff' or other officer of the parishes of Orleans and Jefferson were complied with. Revised Statutes, 3628. All property seized under writs of justices of the peace, whether the same be movable or immovable, shall be appraised and sold in the same manner as property seized and sold by the sheriffs.” C. P., article 1145.

It is objected that the notice of seizure served upon the curator ad hoc was illegal, because McNeil was represented at the time by Murphy, clothed with plenary powers. The same defect, it is urged, applies to the notice of appraisement. Many other informalities are pointed out in the proceedings in this case as having taken place both before and after judgment. Other objections, urged as showing illegality in the sale of the property, are indicated.

We think it clear that these requirements have not been complied with in this case, and that nullity has thereby resulted. Entertaining these views, we deem it unnecessary to pass on the two bills of exceptions in the record.

• It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed.

It is further ordered that the alleged sale of the property for taxes, and which is set up as defendants’ title, be and the same is hereby declared null and void; that the plaintiff be decreed owner of the two lots for which he sues, and that a writ of possession issue according to law and that he be put in possession of the same, the defendants paying costs in both courts.

On Rehearing.

Wyly, J.

On further examination we find no cause to disturb the judgment rendered by this court in this case on May 21, 1875. The judgment under which defendants acquired title was a nullity, and the proceedings in execution thereof were irregular and illegal.

As defendants in their answer set up no reconventional demand for taxes paid by them since their pretended purchase of the land herein decreed to belong to plaintiff, no relief can be given in that regard.

It is therefore ordered that our former judgment remain undisturbed.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 5816.
    City of New Orleans v. Martin Finnerty.
    Compensation takes place between in divictuals when the debts due by the respective parties are equally due and demandable, and where the character of the debt is the same. It can not be opposed by a fiduciary acting in the line of his duty.
    There is no such thing as compensating a debt due by an agent for moneys collected by him in the performance of his duties, by a debt due by the principal to said agent.
    Ho officer of a government, State or municipal, is empowered to pay himself his salary or plead in compensation a demand made against him for moneys collected by him in his official capacity, by an amount due him on account of his salary. His duty is to discharge the obligations of his office according to the terms of his acceptance thereof and to got his pay as other officers get theirs. In other words, he can not pay himself.
    The Administrator of Commerce for the city of New Orleans had no power to authorize the defendant, a wharfinger for the second district of said city, to retain a sufficient sum out of the moneys collected by him, to pay Ms salary and also other employes in the office, and expenses of office. That the same thing has been done in other instances is no justification. Custom can not supersede the law in such cases. If it be a custom, it is a vicious one.
    APPEAL from the Superior District Court, parish of Orleans. MawJcins, J.

      B. F. Jonas, city attorney, Samuel P. Blanc, assistant city attorney, for plaintiff and appellee. Fd/toard Phillips, for defendant and appellant.
   Morgan, J.

Martin Finnerty was appointed by the proper city authorities wharfinger for the second district of the city of New Orleans. He was entitled to a salary fixed by law. He was by ordinance of the city government ex officio collector of levee dues, and solely responsible for the collection and payment of the same to the Administrator of Finance. He gave bond for the faithful performance of his duties. The city sues him for a balance of collections, made under the authority of his office, amounting to $2721 82. His sureties are made parties to the suit. Judgment for the same amount is asked against them in solido.

Finnerty claims that the city owes him $3289 29, on account of his services, expenses of his office, and the payment of employes. And this is his defense. It is admitted that he is a creditor of the city in the sum due by him.

The.questions for us to determine are whether Finnerty, a salaried officer of the city, when, acting in the direct line of the duties assigned to his office, collects funds due to the department of the city government to which he belongs, can pay himself the salary attached to the office, other employes of the office, and the expenses thereof, and deposit whatever may remain in his hands in the treasury 1

When sued for the amounts collected by him in his official capacity and in the proper performance of the duties of his office, can he plead in compensation the salary due to him, the money he has paid to employes in his office, the expenses of the office; it being admitted that the salary, the money paid to the employes and the expenses were due when paid, even when they are established by judgment of a court of competent jurisdiction1?

We think the questions must be answered in the negative. He accepted the office of wharfinger with all of the advantages, duties and obligations thereof, liis advantage was the salary attached thereto. His duties were to collect the moneys due to the city in the department in which he held office; his obligation was to deposit the money so collected in the city treasury. His salary was to be paid as the salaries of other officers of the city were paid, to wit, out of the common treasury. There is no place for the plea of compensation in a case of this kind. Compensation takes place of right between individuals when the debts due by the respective parties are equally due and demandable, and where the character of the debt is the same. It can not be opposed by a fiduciary acting in the line of his duty. There is no such thing as compensating a debt due by an agent for moneys collected by him in the performance of his duties by a debt due by the principal to the agent. No officer of a government, State or municipal, is empowered to pay himself his salary or plead in compensation a demand made against him for moneys collected by him in his official capacity, by an amount due him on account of his salary. His duty is to discharge the obligations of his office according to the terms of his acceptance thereof, and to get his pay as other officers get theirs. In other words, he can not pay himself.

We are informed that the Administrator of Commerce authorized Finnerty to retain a sufficient sum out of the moneys collected by him to pay his salary, and also other employes in the office, and expenses of the office. The answer, we think, to this is that the Administrator of Commerce had no power to grant him such authority.

We are next assured that the same tiling has been done in other instances. The reply is that custom can not supersede the law in such cases, and that if it is a custom it is a most vicious one, entirely unjustifiable, and which results in the payment in full of certain favorites, while others, perhaps equally diserving, get only a portion of their earnings. No such result was ever contemplated by the framers of the city charter. All officers of a government, municipal as well as general, have their respective duties in their several departments to perform ; all are of the same rank before the treasury, and none can be paid their salaries except in the mode pointed out by law, n.or one in preference to another. Counsel for defendant rely upon the authority of Merlin, verbo Compensation, part 3, No. 3; Toullier, vol. 7, par. 379; Duranton, vol. 12, No. 520; Pothier, No. 589, and articles in the Justinian Code and Institutes to support the proposition that what is due by the fisc to an accounting officer is to be compensated by what the officer owes to the fisc. As for example, if a receiver of taxes has in one year paid a larger sum into the treasury than he was accountable for, and the following year he finds himself debtor to the fisc in a like or greater sum, the sum which is due him on the first year, will be compensated by the sum which he owes; and that compensation may be opposed to the State, that is to say to the publie treasury, provided that the two debts depend upon the same excise of the same office. Also that compensation may be opposed, not only against debts due to individuals, but even against debts due to towns, corporations or communities.

But nowhere do we find any authority which sustains the proposition, that a public officer charged with the performance of a specific duty, for a fixed compensation to be paid in a manner pointed out by law, has any right to plead in compensation a sum which is in his hands simply because he has not done.his duty by depositing it with ■the proper officer as soon as he had received it, against his salary and the salary of other officers in his department, and the expenses of the office. We have been referred, it is true, to the cases of United States v. MacDaniel, 7 Peters, 16; to United States v. Ripley, ib. p. 23; to United States v. Fillebrown, ib. 28; to United States v. Ringgold, 8 Peters, 163.

Macdaniel was a clerk in the navy department, upon an annual ■salary. He also acted as the agent 'for the payment of the money due ■to the navy pensioners, the privateer pensioners, and for the navy disbursements. He received $280 per annum for his services in the payment of pensioners; and for ten or fifteen years he received one per cent, on moneys paid by him . for navy disbursements. He was sued on a balance of account' arising out of these transactions. He pleaded that he was entitled to the percentage charged by him. The court decided that he had performed duties- not properly belonging to his employment; that he had made, and. had been paid, the same charges for ten or fifteen years, without objection ; that the Secretary of the Treasury was authorized to employ him in that particular duty, and that he was entitled to compensation therefor.

In Ripley’s case, he claimed to be allowed in compensation of sums alleged to be due by him, extra services rendered in the disbursement of funds in preparing plans for fortifications, and for procuring and forwarding supplies of provisions, etc., to troops of the United States beyond the limits of his military command, but the court refused to sanction the charge of the district judge that his claim was well founded, and reversed the judgment in his favor.

In Pillebrown’s case the court held that the allowance of compensation by a fixed salary to the defendant, did not exclude his right to claim extra compensation for the disbursement of moneys belonging to the navy hospital fund.

The propriety of these decisions we do not question. We think, however, that they do not touch the defendant’s case.

Neither do we dispute the doctrine as stated in Ringgold’s case that when an action is brought by the United States to recover money in the hands of a party who has a legal claim against them, it would be a very rigid principle to deny to him the right of setting up such claim in a court of justice, and to turn him round to an application to Congress.

But we return to our original proposition, and repeating what we have already said, are of the opinion that no salaried officer of the city government, whose salary is to be paid in the manner pointed out by law can, while acting in the strict line of his duty, collect money belonging to the city and, when sued therefor, plead in compensation the salary which may be due him, and amounts paid by him to other creditors of the city.

Judgment affirmed.


text:
    No. 5855.
    State ex rel. Alexis Ribet v. Judge of the Third District Court, parish of Orleans.
    2To complaint being made as to the sufficiency of tlie surety, the district judge dismissed tlie appeal mainly upon tbe ground that the matter in controversy does not exceed five hundred dollars. After granting the appeal, his jurisdiction over the case, except as regards the sufficiency and legality of the bond, was gone.
    Application for a writ of prohibition against the judge of the Third District Court, parish of Orleans.

      Charles L/ouque, for relator. Judge Lynch, respondent, in propria persona.

   Morgan, J.

Relator applied for and obtained a suspensive appeal from a judgment rendered by the judge of the Third District Court.

No complaint is made as to the sufficiency of the surety. The district judge dismissed the appeal mainly upon the ground that the matter in controversy does not exceed five hundred dollars. After granting the appeal his jurisdiction over the case, except as regards the sufficiency and legality of the bond, was gone.

The rule ordering liim to desist from any further proceeding in the case, and commanding him to send up the record to this court, is made peremptory.


text:
    No. 5848.
    State of Louisiana ex rel. G. A. Fosdick v. The Judge of the Sixth District Court, parish of Orleans.
    The judge a quo dismissed the suspensive appeal granted; on the ground that the surety on the bond was not the owner of tangible property to the amount of the bond within the jurisdiction of the court. There seems, however, to be no question of the solvency of the surety. It is proved that the surety is worth the amount of the bond and that he resides within the jurisdiction of the court. This is all that the law requires.
    Application for a writ of prohibition against the judge of the Sixth District Court, parish of Orleans.

      Jj. Madison May, Bentinck Egan, for relator. Judge Saucier, respondent, in propria persona.

   Morgan, J.

From a judgment obtained against him by Avegno, Fosdick applied for a suspensive appeal, which was granted.

The district judge dismissed the appeal on the ground that the security on the appeal bond was not the security which is required by law. Fosdick asks for a writ of prohibition against the judge of the district court, commanding him to desist from proceeding any further against him or his property in the present controversy. He contends that the judgment of the district court is suspended by his appeal and that the bond furnished by him is, in law, good and sufficient!

There seems to be no question of the solvency of the surety. The objection to him is, as we understand it from the answers of Avegno and the district judge, that he is not the owner of tangible property to the amount .of the bond within the jurisdiction of the court.

The article 575 fixes the qualifications of a surety on a suspensive appeal bond. He must be worth the amount of the bond, and must reside within the jurisdiction of the court.-

Here the surety is worth the amount of the bond, and he resides within the jurisdiction of the court. This is all the law requires.

The rule is made peremptory.


author: Wylt, J.

text:
    Nos. 5823 and 5832.
    State ex rel. John G. Eustis v. The Judge of the Fourth District Court, parish of Orleans.
    There is no force in the objection of the respondent that, appellant in applying for an appeal did not specially ash for a suspensive appeal. He applied for an appeal, and he gave bond within ten days for an amount sufficient for a suspensive appeal.
    APPLICATION for writs of mandamus and prohibition against the judge of the Fourth District Court, parish of Orleans.

      T. J. Bartlett, for relator. Judge Juyneh, respondent, in propria persona.

   Wylt, J.

The relator’s opposition to the tableau of distribution filed by the syndic of the insolvent firm of Bellocq, Noblom & Co., having been rejected and the distribution of funds ordered pursuant to the statement on the tableau, the relator took an appeal within ten days, the bond being for five hundred dollars, the amount fixed by the judge.

To compel the judge to send up the appeal and to prevent the execution of the judgment in the meantime, the relator sued out in this court writs of mandamus and prohibition which are the subject of the present controversy.

An examination of the evidence on which the respondent acted, satisfies us that the surety is worth over five hundred dollars, the amount of the bond; and from the nature of the case we conclude that five hundred dollars will be sufficient for a suspensive appeal bond. We do not see how the costs can exceed that sum. As appellant is not in possession of the funds in controversy he need only give bond for the amount of costs. 10 An. 345; 20 An. 108. As he did this within ten days the appeal operated a supersedeas. C. P. 575.

There is no force in the objection of the respondent that appellant in applying for an appeal did not specially ask for a suspensive appeal. He applied for an appeal,' and he gave bond within ten days for an amount sufficient for a suspensive appeal.

It is therefore ordered that the mandamus and prohibition herein be made peremptory and perpetual at the costs of Henry Peychaud,. syndic of Bellocq, Noblom & Co.


author: Ludeling, C. J.

text:
    No. 5695.

    Charlotte Pauline Emelie Romaine De la Ferriere v. Succession of R. England.
    Where the heirs of a succession, have been recognized by a judgment of the Second District Court, parish of Orleans, and put in possession of the property, an action for debt due from said succession must be brought before the ordinary tribunals against the heirs themselves, if they be of age, or against their tutor.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      J. L. Tissot, for plaintiff and appellee. Bentinek JBgan for defendant and appellant.
   Ludeling, C. J.

This an appeal from the Second District Court of New Orleans. The defendant contends that the said court, being a probate court, had no jurisdiction over the case, because the minor heirs of said England had been put in possession of the estate by an order of court, and he cites the following authorities in support of his position: 22 An. 23; 25 An. 225, 220 ; 26 An. 61.

Article 996 declares: “The case is different when such estates are in the possession of the heirs either present, or represented in the State, although all or some of those heirs be minors; for in such case the actions for debts due from such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their curators if they be under age, or interdicted.” C. P. 996.

It appears that the heirs have been recognized by a judgment of the Second District Court, and. put in possession of the property. An “ action for debt due from said succession must be brought before the ordinary tribunals against the heirs themselves, if they be of age, or against their tutor.”

It is therefore ordered that the judgment of the lower court be set aside, and that the suit be dismissed for want of jurisdiction, with costs.

Rehearing refused.


author: Ludeling, C. J. Morgan, J.

text:
    No. 5629.
    Succession of Walter O. Winn. On petition of John S. Mayfield to destitute Mary E. Richards, executrix.
    Iohn S. Mayfield, alleging that' he is a creditor of the succession of Walter O. Winn, for reasons stated,'prayed for the removal of the executrix from her trust. It appears from the testimony that in 1862 the executrix sold a portion of a certain plantation belonging to the succession by private sale. It also appears that she is not now a resident of the State, and that she has not given a power of attorney/ duly reoorded as required by law, to any one to represent her. These are sufficient grounds for destituting her of her trust.
    APPEAL from the parish court, parish of Rapides. Sullivan, J.

      Thos. MeOay, JR. JE. Hunter, Merrielc, JRaee & Foster, for plaintiff and appellant. M. Ryan and J. Q. White, for defendant and appellee.
   Ludeling, C. J.

J. S. Mayfield, alleging that he is a creditor of the succession, for reasons stated, prayed for the removal of the executrix from her trust. The executrix alleged that Mayfield had no interest in the succession, and denied that he was, a creditor thereof. There was judgment in favor of the defendant .and plaintiff has appealed. A motion has been made to dismiss this appeal, on the ground that the judgment was rendered by consent. The judgment does not so state, and the entry on the minutes, relied' upon by the appellee, does not support the position when taken as a whole. It recites that the exception was disposed of, and “by consent of parties the court proceeded to render the following judgment,” that is, they consented that the court should render judgment on the merits immediately.

The motion to dismiss is refused.

It appears that the notes of Mayfield were acknowledged in November, 1865, since which time there has been no interruption of prescription. The notes were therefore prescribed when the first suit of Mayfield was filed, in 1873. Consequently, he has no interest or right to interfere in the affairs of the succession.

It is ordered that the judgment of the lower court be affirmed, with costs of appeal.

On Rehearing.

Morgan, J.

On the motion to dismiss our opinion remains unchanged.

On the ninth of April, 1874, John Mayfield, alleging himself to be a creditor of the succession of Winn, brought suit in the parish court of Rapides to destitute her from her trust as executrix. The grounds upon which this action rests are : That in a former proceeding he was instructed by the court to institute proceedings to cause her to be removed; that the executrix has left the State without having left any one in charge of the estate under any recorded power of attorney; that.she has had control of property exceeding in value half a million of dollars, and has never filed an account of her administration; that she has disposed by private sale, of the plantations belonging to the succession. He prayed for the appointment of a curator ad hoe to represent her, through whom, or personally, she might be cited, and that she be destituted as executrix.

M. Ryan Was appointed to represent her. He was cited.

Ryan answered, denying that plaintiff is a creditor of the succession; that if he had ever been his debt was prescribed; that she has complied with all of her duties. He also excepted to the jurisdiction of the court raiione materia. Judgment was rendered in favor of the defendant.

As regards the claim of Mayfield it is supported by nine promissory notes of. $5000 each.

These notes are all dated thirtieth of March, 1860, and were payable on the tenth of November and tenth of December following. On the first of November, 1865, they were acknowledged by the executrix in writing, to be a debt of the succession of Winn.

On the tenth of May, 1870, John Mayfield took a rule upon the executrix in which these facts were related, and he asked that the executrix be ordered to file an account of her administration, and if she has not funds enough to pay him, that she be ordered to sell a sufficient amount of the succession property to pay him.

Service was made, in person, of this rule on the executrix on the eighteenth of May, 1870. This takes the case out of prescription.

Upon the merits, it appears from the testimony of her attorney that in 1862 the executrix sold a portion of a certain plantation belonging to the succession by private sale. It also appears that she is not now a resident of the State, and that she has not given a power of attorney duly recorded as required by law, to any one to represent her. These are sufficient grounds for destituting her of her trust.

It is therefore ordered, adjudged and decreed that our former judgment rendered herein, in so far as it maintains the appeal remain undisturbed. It is further ordered, adjudged and decreed that our former judgment in so far as it affirms the judgment of the district court be avoided, annulled and set aside. And it is now ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and set aside, and that.there be judgment in favor of the plaintiff, and against the defendant Mary E. Richards, late widow of Walter Winn, deceased, destituting her from the office of- executrix of the last will and testament of the said Walter Winn, deceased, and that defendant pay the costs in both courts.


author: Wyly, J.

text:
    No. 5764.
    The State of Louisiana v. George Fritz alias Fry and Frank O’Brian.
    The provision of the statute under which Judge Atocha appointed a lawyer,' George H. Braughu, to preside in his court and try defendants, being repugnant to article 90 of the constitution, was void from the beginning of its enactment and the appointment was a nullity.
    The express requirement of article 90, that the judge shall select a lawyer to try a certain class of oases, carries with it an implied inhibition" against the judge selecting or appointing a lawyer to act in his place and stead in the trial of any other cases.
    The defendant was therefore tried and sentenced in the Superior Criminal Court during the absence of the judge of that court, and without any ..competent judge presiding at the time. The attorney who presided had no more authority to act as judge than any other person who was present at the trial.
    The position that Braughu was a de facto judge and that his official acts were valid, is not tenable. He had no color of title to the office of judge of the Superior Criminal Court, and never claimed or pretended to be judge of that court.
    APPEAL from tbe Superior Criminal Court, parish of Orleans.
    Brcmglm, an attorney duly qualified, acting in the place of Judge Atocha. A. JP. Field, Attorney General, for plaintiff and appellee. J. J. Foley and M. A. Dooley, for defendant and appellant.
   Wyly, J.

Defendant, Frank O’Brian, who was convicted on an information for: First, forging an order for the delivery of goods. Second, publishing as true a forged order for the delivery of goods, and sentenced to the penitentiary for four years, appeals from the judgment of the court below.

In this court his counsel files an assignment of errors, the most important objection being, that the accused was tried before George H. Braughn, Esq., an attorney at law, who presided under an appointment of Judge Atocha, the judge of said court; that the statute which authorized the judge to appoint an attorney at law to discharge the duties of his office during his inability to act on account of sickness, was unconstitutional, null and void, and the trial, conviction and sentence of this defendant were therefore null and void.

Article 90 of the constitution provides that: “In any case when the judge may be' recused, and when he is not personally interested in the matters in contestation, he shall select a lawyer, having the qualifications for a judge of his court, to try such cases. And when the judge is personally interested in the suit, he shall call upon the parish or district judge, as the case may be, to try the case.”

The express requirement of this article, that the judge shall select a lawyer to try a certain class of cases, carries with it an implied inhibition against the judge selecting or appointing a lawyer to act in his place and stead in the trial of any other cases; and what a judge is forbidden by the constitution to do, he can not be authorized to perform by an enactment of the General Assembly. The provision of the statute under which Judge Atocha appointed George H. Braughn, Esq., to preside in his court and try defendant, being repugnant to the constitution, was void from the beginning; and the appointment was a nullity.

The defendant was, therefore, tried, convicted and sentenced in the Superior Criminal Court, during the absence of the judge of that court, and without any competent judge presiding at the time. The attorney who presided had no more authority to act as judge than any other person who was present at the trial.

As to the position that George H. Braughn was a defacto judge, and therefore his official acts were valid, we will remark that he had no color of title to the office of judge of' the Superior Criminal Court? held no commission from the Governor, and set up no adverse title to the office. Indeed he never claimed or pretended to be judge of that court. He recognized Judge Atocha as the judge of the court, and with his authorization attempted to perform the duties of that officer during his inability to act on account of sickness. The sole question therefore in the case is a question of authority of a judge to appoint an attorney to perform his official duties during his sickness, in view of the clause of the constitution quoted. And this question we think we have disposed of in the observations already made.

It is therefore ordered that the judgment appealed from he annulled, and that this case he remanded to be tried according to law.


text:
    No. 5377.
    State of Louisiana v. Edward Coleman.
    Where a witness declared that he had formed an impression based on newspaper statements and that said impression would give way to evidence, that is no cause for challenge.
    The judge a quo properly rejected the following question to a witness: “You have stated that the accused received in his youth several injuries upon the head; you have stated also that his language and conduct were at times strange and extraordinary. Was that conduct and language that of a rational man 9” The facts in regard to the language and conduct should have heen detailed.
    The following charge to the jury, which was objected to, is undoubtedly correct:
    “ The killing once proved, the burden of extenuation and of showing all circumstances of accident, misfortune or justification, are thrown upon the defendant, When insanity is pleaded in defense of a criminal act, it must be clearly shown that it existed at the time of the commission of the act. Every person is presumed to he sane until the contrary is proved, and it is for him who sets up this defense to prove it by evidence whioh will satisfy the minds of the jurors that tho party was insane at the time of the commission of the offense. Drunkenness is no excuse for crime, and any state of mind resulting from drunkenness, unless it be a permanent and continuous result, still leaves the person responsible for his acts.”
    The judge a quo did not err when refusing to charge the jury as follows:
    “If the defense to an indiotment is insanity, the burden of proof is on the government to satisfy the jury beyond a reasonable doubt that the prisoner was sane when he committed the act, and if the jury entertain any doubts of ,his sanity, they must acquit hi™ ol guilt.” The burden of proof is upon the party setting up the defense.
    The judge a quo did not err when refusing to charge: “ That, where a person is insane at the time he commits a murder, he is not punishable as a murderer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors.”
    The court below did not erroneously refuse, as alleged, to instruct the jury: “That, if some controlling disease was in truth the acting power within the prisoner, which he could not Tesist, or if he had not a sufficient use of his reason to control the passions whioh prompted the act complained of, he is not responsible ” The instruction was calculated to mislead the jury.
    There is no error, as assigned, because the record fails to disclose “the names of the grand jurors by whom the indictment was found, the time and place at whioh the jury was formed, and whether the indictment was formed by twelve or more.” In the record is found the following copy of the minutes of the court:
    “The grand jurors duly empanneled and sworn in and for the body of the parish of Orleans appeared this day into court, and being called, retired to consider upon the business laid before them; they afterward returned into court and presented the following bill of indictment.” This is sufficient.
    There is no error, as assigned, because “the record fails to show that the defendant was asked if he had any thing to say why sentence of the law should not be pronounced on him.” The remark in the decree, ‘ ‘ and having nothing to offer in arrest of judgment,” of course implies that the defendant was asked if he had anything to say why sentence of the law should not be pronounced on him.
    It is unimportant and no error that the record fails to show “that the prisoner was present in court when the motion for a new trial was made and refused.”
    The objection that the court allowed the Attorney General, after announcing that the evidence in behalf of the State was closed, to offer another witness, is without weight. It was within the discretion of the judge.
    APPEAL from the Superior Criminal Court, parish of Orleans.

      Atocha, J. A. P. Meld, Attorney General, and John McPhelm, district attorney, for plaintiff and appellee. Henry C. and John H. Castellanos, Braughn, Bucle <& Dinhelsjsiel, for defendant and appellant.
   Wyly, J.

The defendant having heen tried and convicted of murder and sentenced according to law, appeals from the judgment of the court below. He assigns in this court certain errors, which we will notice in the order stated by him.

First — He alleges the court erred in refusing his challenge for cause when Louis Schwartz, one of the panel of jurors, was presented to him.

Schwartz, examined on his voir dire, stated that “he had formed an impression, based on newspaper statements, and that it would require evidence to change this impression.” On cross-examinatiou in regard to removing this impression he was asked “ would it require considerable evidence.” To which he answered: “I can not draw such a distinction. To me all evidence is evidence. It would require some evidence.”

Questioned by the court, “You have stated that you had an impression, and you have also stated that it was not an opinion : now, sir, I want to know if that opinion will give way to evidence.” He answered, “Yes.” We think the court did not err in refusing the challenge for cause.

8econd> — He assigns the court erred in refusing the following question propounded to a witness: “You have stated that Coleman received in his youth severe injuries upon the head; you have stated also that his language and conduct were at times strange and extraordinary; was that conduct and language that of a rational man V1 The opinion of the witness was properly rejected. Without detailing the facts in regard to the language and conduct of the accused, which witness thought strange and extraordinary, his opinion as to whether “ that conduct and language was that of a rational man,” was calculated to mislead the jury. Language and conduct which the witness might think were not that of a rational man, might not, if disclosed, produce the same conclusion with the jury.

Third — The objection set up in the third assignment is answered in our remarks in reply to the second.

Fourth — The fourth objection is to the following charge given by the judge to the jury: “ The killing once proved, the burden of extenuation and of showing all circumstances of accident, misfortune or justification, are thrown upon the defendantthat “ when insanity is pleaded in defense of a criminal act it must be clearly shown to have existed at the time of the commission of the act;” and that “every person is presumed to be sane until the contrary is proved, and it is for him who sets up this defense to prove it by evidence which will satisfy the minds of the jurors that the party was insane at the time of the commission of the offense.” And finally that “drunkenness is no excuse for crime, and any state of mind resulting from drunkenness, unless it be a permanent and continuous result, still leaves the person responsible for his acts.” This charge was undoubtedly correct.

Fifth — That the court erroneously refused to charge the jury as follows : “ If the defense to an indictment is insanity, the burden of proof is on the government to satisfy the jury beyond a reasonable doubt that the prisoner was sane when he committed the act; and if the jury entertain any doubts of his sanity, they must acquit him of guilt.” The court did not err. The burden of proof is upon the party setting up the defense.

Sixth — The sixth objection is answered in our remark in reply to the fifth.

Seventh^The seventh objection is also answered in our remark in reply to the fifth. The party setting up the deiense of insanity must establish it.

Eighth — Error is assigned because the court refused the following charge to the jury: “ Where a person is insane at the time he commits a murder, he is not punishable as a murderer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors.” The court did not err. It had previously charged that “drunkenness is no excuse for crime, and any state of mind resulting from drunkenness, unless it be a permanent and continuous result, still leaves the person responsible for his acts.” This charge was a true exposition of the law, and the instruction refused was calculated to mislead the jury.

Ninth — The answer to the ninth objection is, as stated previously, the State is not bound to prove the sanity of the accused. He who alleges insanity as a defense must prove it.

Tenth — The tenth objection is answered in our remarks in reply to the previous objections.

Eleventh — Error is assigned because the court refused the following charge: “If some controlling disease was in truth the acting power within the prisoner, which he could not resist, or if he had not a sufficient use of his reason to control the passions which prompted the act complained of, he is not responsible.” The court did not err. The instruction was calculated to mislead the jury. To avoid responsibility for the offense it devolved upon the accused to prove the defense of insanity.

Twelfth — The answer to the twelfth objection is the same as that stated in reply to the eleventh.

Thirteenth — Error is assigned because the record fails to disclose the names of the grand jurors by whom the indictment was found, the time and place at which the grand jury was formed, and the indictment was found by twelve or more.

In the record is found the following copy of the minutes of court on April 30, 1874: “ The grand jurors duly empanneled and sworn in and for the body of the parish of Orleans appeared this day into court, and being called, retired to consider upon the business laid before them; they afterward returned into court and presented the following bill of indictment.” It was signed by the foreman, and the record further shows that it was filed and recorded. There is no force in this objection.

Fourteenth — Error is assigned because the record fails to show that the defendant was asked if he had' any thing to say why sentence of the law should not be pronounced on him. The remark in the decree “and having nothing to offer in arrest of judgment,” of course implies that the defendant was asked if he had any thing to say why sentence of the law should not be pronounced on him.

Fifteenth — It is lastly assigned as error that the record fails to show that the prisoner was present in court when the motion for new trial was made and refused. This is unimportant.

The objection that the court allowed the Attorney General, after announcing that the evidence in behalf of the State was closed, to offer another witness, is without weight. It was within the discretion of the judge.

Judgment affirmed.

Rehearing refused.


text:
    No. 4110.
    Widow P. C. Lemane, Administratrix, v. Henry Lemane. Ignace Halum, Third Opponent.
    Notice of subrogation to a judgment, served after tlie seizure thereof, has no effect to disturb rights acquired previously.
    It was absurd for the succession of P. C. Lemane, having judgment for $700 against Henry Lemane, to seize thereunder the judgment of the latter against the succession of P. C. Lemane, for $500. At the time of the seizure the respective judgments were- compensated. The law tolerates no such absurdity as a judgment creditor seizing a judgment against himself.
    The objection that this court is without jurisdiction because the judgment seized and which the third opponent claims as subrogee, does not exceed five hundred dollars, is unfounded. At the time of the seizure the judgment and interest exceeded that sum.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      J. Fuvigneaud and A. L. Tissot. for plaintiff and appellant. JR. G. Fugué, for third opponent and appellee.
   Wyly, J.

In March, 1869, plaintiff, the legal representative of the succession of Pierre C. Lemane, sued the defendant, Henry Lemane, for seven hundred dollars, the price of a stall in the French Market, which he bought from his brother, Pierre C. Lemane, a few days before his death. Defendant pleaded a general denial, and also set up in reconvention a claim of five hundred dollars which he alleged he left on deposit in the hands of his brother a few days before his death.

Before trial, however, defendant obtained judgment in the Second District Court on this five hundred dollar claim against the succession represented by plaintiff. At the trial of this case subsequently, plaintiff had judgment against defendant for the seven hundred dollars claimed as the price of the stall. Execution issued on this judgment, and the judgment of defendant in the Second District Court for five hundred dollars against succession of Pierre C. Lemane was seized.

Thereupon Ignace Halum filed a third opposition, claiming as subrogee the judgment seized.

The defense set up to this opposition was that no notice of the subrogation had been served, and compensation was pleaded. The court maintained the opposition, and from that judgment this appeal was taken.

The whole-proceeding is quite irregular. As notice of the subrogation was only served on plaintiff after the seizure, it had no effect to disturb rights acquired previously. It was absurd for the succession of Pierre C. Lemane, having judgment for seven hundred dollars against Henry Lemane, to seize thereunder the judgment of the latter against the succession of Pierre C. Lemane for five hundred dollars.

At the time of the seizure the respective judgments were compensated. The law tolerates no such absurdity as a judgment creditor seizing a judgment against himself. The objection that this court is without jurisdiction because the judgment seized, and which the third opponent claims as subrogee does not exceed five hundred dollars, is unfounded, because at the time of the seizure the judgment and interest exceeded that sum.

It is therefore ordered that the judgment appealed from be annulled, and the demand of the opponent be rejected with costs.


author: Morgan, J. Howerl, J.

text:
    No. 4078.
    C. N. Prudhomme v. Salamander Fire Insurance Company of New Orleans.
    When there is in the description or designation of the buildings in which the goods insured are located, such misrepresentation of a material fact as to avoid the policy, the insurers are released from responsibility.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. Jury trial.

      JS. H. MeOaleb, -for plaintiff and appellee. Albert Voorhies, for defendant and appellant.
   Morgan, J.

' This is a suit on a policy of insurance. The instrument recites that, “in consideration of $120 to them paid by the insured, hereinafter named, the receipt whereof is hereby acknowledged,” the Salamander Fire Insurance Company “do insure Ben Toledano against loss or damage by fire to the amount of $3000 on stock in trade, such as is usually kept in a country store, such as groceries, dry goods, hardware and cutlery, contained in a frame shingled store, situated in the town of Coushatta, Red River, Louisiana, being stock of C. N. Prudhomme.” The defense is:

First — Want of insurable interest in the assured.

Second — That the defendants were not advised that the goods insured were kept for sale in a large hotel, used for the reception of travelers and sojourners, in which other avocations and trades were pursued by different parties, which fact, if it had been made known, would have deterred the defendants from accepting the risk.

If we give to the plaintiff what he claims as regards the insurance of the goods which were destroyed by the fire — that is, that they were his, and were insured for his benefit — still the second objection must prevail.

In the application to insure the goods are described as being in a store. Properly speaking, they were not in a store. They were contained in a room belonging to a lodging and boarding house. It was in the kitchen of this house that the fire which consumed the plaintiff’s goods originated. By the terms of the policy “ taverns ” are extra hazardous. It is contended that the house in question was not a tavern’ but a hotel. The distinction between a tavern and a hotel in such a place as Coushatta is, it seems to us, a distinction without a difference.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, and that there be judgment in favor, of the defendant, with costs in both courts.

On Rehearing.

Howerl, J.

A motion is made to dismiss this appeal on the ground that the appeal bond has been declared insufficient and the appeal dismissed by the court a qua. This has been disposed of in the prohibition suit, just decided, and hence the motion must be denied.

On the Merits.

In our former opinion we held that the insurers were released from responsibility because the goods were in a building declared by the policy to be extra hazardous, and not in such a building as was described in the application for insurance and in the policy. We still think the insurers not liable under the circumstances; for whether the building be a tavern (the word used in the policy) or a hotel (by which it is designated in the record), there was such misrepresentation of a material fact as to avoid the policy — the premium for insurance in such buildings being higher than that paid by the insurer in this instance.

It is.therefore ordered that our former decree remain undisturbed.


text:
    No. 5827.
    State ex rel. Pontchartrain Railrod Company v. Judge of the Superior District Court et als.
    According to law a suspensive appeal is to be taken within ten days from the notification to the party oast of the judgment complained of. But the requirements of the law are not prohibitory, and it is understood by this court that any engagement not prohibited by law and not repugnant to good morals may be enforced between the parties thereto. The law does not say that the parties may not agree that the time for making an application for a suspensive appeal may not be extended, nor does it forbid the parties from fixing the amount of the appeal bond among themselves. The provisions of the law on the subject are for the protection of the parties in litigation. Either party may waive his rights to this protection, and if he chooses to do so and contracts to do so, his contract can be enforced.
    The district judge has the power of pronouncing on the question whether an appeal is or shall be suspensive or devolutive, and of saying whether the appellee shall be entitled to take out execution, notwithstanding the appeal. But when it is a judgment which this court may reform, when the. case is within its jurisdiction, it may determine that an appeal is suspensive, which the district judge may have decided was devolutive. In the like manner this court can decide whether the surety is good and solvent, and revise the judgment of the lower court on this point.
    Therefore, in this case, the application for a suspensive appeal, being made within the time agreed upon by the parties in interest and authorized to make the agreement, is valid.
    APPLICATION for a writ of prohibition against the judge of the Superior District Court, parish of Orleans.

      J. A. Campbell, A. Mieou, for relator. A. J. Teiois, for Mrs. Ellen Murray et als., respondents. Judge Earnhma, respondent, in propria persona.

   Morgan, J.

On the twenty-fifth of March, 1875, judgment was signed in the case of Ellen Murray, tutrix, etc., v. The Pontchartrain Railroad Company, in favor of the plaintiff, for ten thousand five hundred dollars and costs.

On the twenty-sixth of March plaintiff and defendant, through their respective counsel, agreed that the defendant’s right to a suspensive appeal should be extended for the term of sixty days from that date. On the thirtieth of March this agreement was entered upon the minutes of the court, and granted.

On the twenty-fifth of May, 1875, defendants moved the court for a suspensive appeal from the judgment rendered on the twenty-fifth day of March preceding. The motion was granted on the same day, upon the condition that the defendant should furnish bond and security, conditioned as the law directs.

On the same day bond was furnished for $16,050.

On the twenty-sixth of May, 1875, plaintiffs moved the court to set aside the appeal, in so far as it was suspensive, upon the grounds:

First — That the surety on the appeal bond is not good and solvent.

Second — That the amount of the appeal bond is insufficient.

Third — That by the agreement of the twenty-sixth of March, 1875, defendants had acquiesced in the judgment.

Fourth — That the legal delay for a suspensive appeal had expired.

Fifth — -That the delay granted in the agreement of the twenty-sixth of March had expired previous to the filing of the motion for and bond of appeal.

Sixth — That the agreement is not binding upon plaintiff, as defendants have not complied with, but on the contrary have violated the letter and spirit of the agreement.

The district judge was of the opinion, as we gather from his answer:

First — That the surety on the appeal bond was not good and solvent.

Second — That the delay within which a suspensive appeal may be taken being fixed by law, it is a matter of public • policy and is not susceptible of change by agreement between parties; that the delay fixed by law for the taking of a suspensive appeal had expired before defendant’s appeal was asked for; and that the extension provided for in the agreement appeared to have been obtained for purposes different from those stipulated in the agreement, and were suggestive of fraud on the part of the appellant.

For these reasons the district judge declared that the appeal was devolutive only. Hence this application for a writ of prohibition.

Third — The question of acquiescence is not suggested either in the answer or in the brief of the defendant herein.

Our only concernment is, first, with the bond. Is it good in quality and amount1? Second, was the appeal applied for in time to give it a suspensive effect 1

First — The property of the surety on the bond is all personal property, but this is no objection. Estimating his property at its honest value we think he is worth, according to the testimony, at least $35,000. His debts amount to about $10,000. This would leave him solvent in the sum of $25,000, or more than the amount of his liability.

Defendant in rule contends that the surety is not worth the amount which we have stated. But her objections are deductions, not facts. For instance, she says that much of his property is pledged to secure some $8000 of debt, and that the entire amount pledged must be deducted from his assets. Not so. The property pledged is still his, and if it were sold to. pay the debt for which it stands as security, the uncontradicted evidence is that it is worth the amount fixed by us. We are therefore justified in saying that it would fetch that amount. This would leave a balance which, added to the amount he has in hand, would be sufficient to pay the bond, should the judgment appealed from be affirmed.

She further contends that the surety is also surety on another bond for $5000, and that this sum should be deducted from his assets. Giving her the benefit of this position — with regard to which, however, we express no opinion, still, according to the value which we think the record discloses liis property possesses, he has enough to pay both bonds should judgment go against him.

Is the bond sufficient in amount? The verdict was for $10,500 and costs. The judgment followed the verdict. Should the judgment be affirmed, what amount will the defendants have to pay? Ten thous- and five hundred dollars, with the accrued costs.

The bond required to suspend the execution of a judgment is for a sum exceeding by one-half the amount of such judgment.” C. P. 575. One-half of $10,500 is $5,250. Therefore the bond required by law in this case would be $15,750. The bond is for $16,050, or $300 more than the law requires, and leaving that sum for costs, if costs are to be included in the bond. In amount, therefore, the bond is sufficient.

Second — Was the appeal applied for in time to give it a suspensive effect ?

Article 575 of the Code of Practice provides that if the appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit,-when such notice is required by law, it shall stay execution and all further proceedings, until definitive judgment be rendered on the appeal; provided the appellant gives his obligation, with good and solvent security, residing within the j urisdiction of the court, in favor of the clerk of the court rendering the judgment, for a sum exceeding by one-balf the amount for which the judgment was given, etc.

We have not been enlightened upon the question before us by the authorities cited from our own courts upon the subject before us. The rule, or rather the law which we have quoted above, is general, that a suspensive appeal must be applied for within ten days from the notification of the party cast of the judgment complained of. And this is what was decided in the State v. Buchanan, 13 L. 576, and many other cases.

But what we have to decide is, whether or no the requirements of the Code of Practice (575) are prohibitory ? We do not think they are. And we understand the law to be that any engagement not prohibited by law, and not repugnant to good morals, may be enforced between the parties thereto.

Now, the article 575 of the Code of Practice says that the application for a suspensive appeal is to be made within ten days, but it does not say that parties may not agree that the timé for making the application may not be extended; it provides that the bond to be furnished shall be one-half over the amount of the judgment, but it does not prohibit parties from fixing the amount of the bond among themselves. These provisions are made for the protection of the party in whose favor a judgment has been rendered, and for the purpose of giving to the party cast an opportunity of taking the necessary steps for obtaining an appeal from a judgment which would otherwise become executory. Either party may waive his rights to this protection, and if he chooses to do so, and contracts to do so, his contract can be enforced.

The proposition advanced by the respondent that the district judge has the power of pronouncing on the question whether the appeal is or shall be suspensive or devolutive, and of saying whether the appellee shall be entitled to take out execution, notwithstanding the appeal, is supported by authority. Stanton v. Parker, 2 R. 551. We do not dispute it. But this is a judgment of the district court, which we may reform, when the case is within our jurisdiction, and we may determine that an appeal is suspensive which the district judge may have decided was devolutive.

So the lower court is competent to determine the sufficiency of the surety, and when the security is not good and solvent, a writ of prohibition will not issue restraining execution pending the appeal. 21 An. 178. Of course, when the security is n.ot good a writ of prohibition will not issue. But it will issue if the surety is good and solvent, and whether he is good and solvent or not, we have the power to decide. Neither do we find any difficulty in adhering to the decision in the case of the State v. Judge of the Fourth District Court, 22 An. 115, which declares that where a bond is insufficient for a suspensive appeal, execution may issue pending the appeal. But the revolving question constantly recurs, was the bond insufficient? And this question it is our province and duty, when called upon, to decide.

Marcadé, the authority relied on by the respondent (Marcadé, de la Prescription, pp. 27, 28), is of the opinion that a renunciation of prescription, as regards the right of appeal, can not be enforced. He cites several authors in support of his position, as well as others who are opposed to him. If the question before us was whether or no a litigant, before judgment pronounced, could renounce the right of appeal, and we had no authority at band, we would be obliged to consider the arguments of the respective commentators alluded to by him, and give our judgment where, in our opinion, the reasons were strongest. f

But this is not the case before us. We are not considering whether a litigant has the right to renounce the right of appeal, either before or after judgment. We are simply called upon to say whether a party in whose favor a judgment has been rendered, can consent that the party against whom it is rendered shall have sixty days in which to make an application for a suspensive appeal, instead of the ten days stipulated by the Code of Practice. We think he may. Considering, therefore,

First — That the surety on the appeal bond is good for the amount thereof j

Second — That the amount of the bond is sufficient;

Third — That the application for a suspensive appeal was made within the time agreed upon by the parties in interest, and that they were authorized to make the agreement.

It is therefore ordered that the rule herein issued be made peremptory.

Ludeling, C. J., concurring in the decree.

Howell, J , concurring in the decree.


author: Morgan, J. Wxlx, J.

text:
    No. 5662.
    J. O. Howell v. Sheriff of East Feliciana et als.
    Plaintiff can not now be heard to contradict the allegations of his petition in regard to the ownership of the property in litigation, which he made in another controversy, nor can a witness be heard now to contradict the testimony which he then gave.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Dewing, J.

      D. O. Hardee, Gross & Fiphins, Bice <& WhitaJcer, for plaintiff and appellee. W. F. Eernan & Lyons, for defendants and appellants.
   Morgan, J.

This is an injunction suit, instituted against the sheriff to restrain him from executing a writ which issued in the case of Riley v. Howell.

In that case (Riley v. Howell) we annulled the judgment on the ground of want of jurisdiction of the court which rendered it. If the judgment was a nullity, no execution could rightfully issue under it. The judgment of the district court, therefore, which maintained the injunction, is correct.

Judgment affirmed.

On Rehearing.

Wxlx, J.

It now appearing that the court which rendered the judgments sought to be executed was not without jurisdiction, the merits of this injunction suit will have to be examined.

Plaintiff enjoined the seizure by defendants of an iron box and its contents, consisting of money, parish warrants, etc., on the ground that they were not his individual property and therefore not liable to seizure by his creditors; that they were in his custody and possession in his representative capacity of tax collector of the parish of East Feliciana, and that he had an interest in seeing that the property seized was faithfully applied to the purpose for which he had given bond.

In support of the position plaintiff sought to prove by himself and James A. Sullivan that the money, warrants, and other property seized belonged to the State or the parish. Defendants excepted to the evidence on the ground that in a recent controversy between plaintiff and one De -Gray, who succeeded him as tax collector, plaintiff had judicially admitted that he was the owner of the property now under seizure, and the witness Sullivan in that case had testified that this property was the private property of plaintiff.

We think the bill of exceptions of defendants to the introduction of this evidence was well taken. Plaintiff can not now be heard to contradict the allegations of his petition in regard to the ownership of this property which he made in the controversy with De Gray; nor can the witness Sullivan be heard now to contradict the testimony which he then gave.

It is therefore ordered that the injunction herein b"e dissolved, with costs and one hundred dollars’ damages.

Mr. Justice Howell was recused in this case.


author: Taliaferro, J.

text:
    No. 5820.
    State ex rel. James Wood v. Judge of the Fifth District Court, Parish of Orleans.
    Tn a suit for dissolution, settlement and liquidation of partnership, the judge a quo having . appointed a liquidator, one of the partners appealed from this interlocutory order. The case being called for trial on its merits, the appellant objected to its being tried pending the suspensive appeal from the order appointing a liquidator. The court a qua erred in sustaining the objection and in continuing the case.
    APPLICATION for a writ of mandamus against the judge of the Fifth District Court, parish of Orleans.

      JBentinoTc Hgan, for relator.Judge Cullorn, respondent, in propria persona.

   Taliaferro, J.

In a suit pending in the Fifth District Court by which one partner sued the other for a dissolution of the partnership and for settlement and liquidation of the partnership affairs, it seems that both the partners prayed the court to appoint a liquidator and each prayed for the appointment of himself. The judge appointed a third party. From this interlocutory order, Allen, one of the partners, appealed. When the case was called for trial on its merits, Allen objected to its being tried pending the suspensive appeal from the order appointing a liquidator. The court sustained the objection, and the case was continued.

The other party, Wood, the relator in this case, complains of the action of the judge a quo as being a denial of justice, and prays this court to issue a writ of mandamus ordering the judge of the Fifth District Court to have the said cause set for trial with preference and to proceed with the trial of the same with the least possible delay.

The judge in answer to the rule nisi says : If his appointment of a liquidator was correctly made, the report of the liquidator would become indispensably necessary as a basis for his judgment. If his appointment of a liquidator should be' annulled on appeal he would be compelled from the intricate character of the accounts of the parties to refer them to an auditor; that the final decision of the cause by this court could not have been accelerated by hearing it at the time referred to by the relator.

We do not concur with the judge a quo, but think the case should have been proceeded with. Let the rule be made absolute.


text:
    No. 5839.

    State ex rel. Nicholas Schmidt v. Judge of the Second Judicial District Court, parish of Jefferson.
    A party obtaining an injunction prohibiting a sheriff from executing a certain judgment, can not, after the injunction is dissolved and no appeal taken therefrom, appeal from a decree of the court making absolute a rule taken upon the sheriff to show cause why he should not put the purchaser in possession of the property sold in execution of the judgment, after the dissolving of the injunction. The plaintiff should have appealed from the judgment dissolving the injunction, if injured thereby. He can not appeal from an order which merely carries out a decree.
    APPLICATION for a mandamus against the judge of the Second Judicial District Court, parish of Jefferson. Pardee, J.

      C. W. Pesancon, Cotton & Pevy, for relator. Judge Pardee, in propria persona.

   Morgan, J.

Schmidt obtained an injunction prohibiting the sheriff of the parish of Jefferson from executing a certain judgment. The injunction was dissolved. From this judgment no appeal was taken. The sheriff thereupon executed the judgment which had been enjoined, and sold certain property to satisfy the same.

The purchaser demanded to be placed in possession of the property purchased. The sheriff not complying, a rule was taken upon him to show cause why he should not do so. The rule was made absolute.

From the judgment on this rule Schmidt asked for an appeal, which was denied. He prays for an order commanding the district judge to grant his request.

The judge did not err. Relator should have appealed from the judgment dissolving his injunction, if he was injured thereby. He can not appeal from an order which merely carries out a decree.

Rule dismissed at relator’s costs.


author: Howell, J.

text:
    No. 5133.
    City of New Orleans v. Hugh Cassidy.
    A suit for taxes is summary and is not to be tried by a jury.
    APPEAL from the Superior District Court, parish of Orleans. JLawlams, J.

      Samuel P. Blane, assistant city attorney, for plaintiff and appellee. Geo. L. Bright, for defendant and appellant.
   Howell, J.

We are not favored with a brief or argument on behalf of the appellant. There is in the record a bill of exceptions to the refusal of the judge a guo to grant a trial by jury on the ground that the suit, being for taxes, is summary and not to be tried by a jury. The ruling of the judge was correct. The law makes this class of cases summary in the mode of proceeding, and such are not to be submitted to juries. C. P. 756-57; 19 An. 82.

Judgment affirmed.


author: Howell, J. Morgan, J.,

text:
    No. 6002.
    States of Louisiana ex rel. George C. Norcross v. Judge of the Fourth District Court, parish of Orleans.
    There is nothing in the act creating the Superior District Court, which confines to that court the proceeding of relator, asking for kn order to the sheriff to put relator in possession of certain real estate which he alleges to have purchased at a tax sale of the same by the tax collector under the provisions of act Ho. 47 of 1873, entitled an act to enforce the payment of taxes due the State, etc.
    The Fourth District Court for the parish of Orleans is a district court in contemplation of the act Ho. 47, invoked by relator, being a district court of general civil jurisdiction.
    The act does not declare in express terms that the order of the sheriff to put a purchaser in possession shall issue without notice, and this court may well construe it as adopted with reference to the general laws relating to summary proceedings in the courts of this State. Hence no constitutional question arises.
    The judge a quo, in this instance, did not err in refusing to issue the order as prayed for, because no party was made to tbe proceeding upon whom notice could be served. Consequently there is no proper showing for the writ of mandamus to issue from this court.
    APPLICATION for a mandamus against the judge of the Fourth District Court, parish of Orleans.

      G. H. Braughn, for relator. L. MaMson Bay, for respondent. Judge Lynch, in propria persona.

   Howell, J.

This is an application for a mandamus to compel the judge of the Fourth District Court, for the parish of Orleans, to issue au order to the sheriff to put relator in possession of certain real estate which he alleges he purchased at a tax sale of the same, by the tax collector, under the provisions of act No. 47 of 1873, entitled “an act to enforee the payment of taxes due the State; providing for the seizure and sale of the property of delinquent taxpayers, and regulating the proceedings against them and their property and tenants. ”

The relator presented to the said judge a petition for such order as prescribed by tbe last clause of the fourth section of said act, which is in the following words : “ upon the presentation of a title so given (that is, a title by the tax collector) to the district court, it shall be the duty of the judge to order the sheriff to put such person in possession of the property so purchased by him. ”

The judge refused to grant the order for the reasons :

First — The Fourth District Court is without jurisdiction.

Second — He questioned if there is any law which will warrant this summary proceeding.

In answer to the provisional writ of mandamus he contends that the subject matter, if constitutional, is confined to the. jurisdiction of the Superior District Court, in the parish of Orleans, by section two of act No. 2 of 1873, creating the said court, and that the act under which the said order was asked is unconstitutional in several respects and especially in depriving an owner of his property without a hearing.

We can find nothing in the act creating the Superior District Court, which confines this proceeding to the said court, and we think the Fourth District Court, for the parish of Orleans, is a district court in contemplation of the act No. 47, invoked by relator, being a district court of general civil jurisdiction.

It is unnecessary to raise or discuss the constitutional question, as the act does not declare in express terms that the order to the sheriff, to put a purchaser in possession, shall issue without notice, and we may well construe it as adopted with reference to the general laws relating to summary proceedings in the courts of the State and as authorizing the district courts, to which application is to be made, to require the necessary legal notice to be issued to the party to be ousted and to dispose of the contest in a summary manner.

We think, however, that the judge in this instance did not err in refusing to issue the order as prayed for, because no party was made to the proceeding upon whom notice could be served, consequently there is no proper showing for the writ of mandamus to issue from this court. When the judge refuses to issue the order upon presentation to him of a petition in proper form, it will be time to ask for a mandamus.

It is therefore ordered that the writ of mandamus herein be discharged with costs.

Morgan, J.,

dissenting. I think the law makes it the duty of the district judge to pass judicially upon the question propounded to him, and having refused, I think he should be ordered to do so.

I think the mandamus should be made peremptory.


author:
Wily, J. Ludeling, C. J.
      Wyly, J., Howell, J.,

text:
    No. 5294.
    Georgiana Whan v. Jesse R. Irwin, Tutor, et al.
    This is a suit, by rule, to compel a surety on an appeal bond to pay the remainder of the judgment, which had been affirmed on a suspensive appeal from an order of seizure and sale.
    If the position taken be correct, that the proceeding against the surety was premature, as only the mortgaged property had been sold under the writ, and no execution had been issued against the judgment debtor and returned nulla bona, then to require bond for an appeal from an order of sale is an idle form.
    Article 575 of the Code of Practice and section 37 of the Revised Statutes of 1871, justify the mode of proceeding in this case. The only execution which it was possible for the judgment creditor to cause to be issued, was issued, and returned not satisfied. The requirements of the law were substantially complied with. The surety knew that, under the executory process, no other property could be sold except that which was included in the mortgage, and when he stopped that by signing the appeal bond, he obligated himself to pay the amount of the judgment for which the writ had issued, if affirmed on appeal.
    By reason of the nature af the judgment, no execution could be taken out„ after the return of the order of seizure and sale, which could reach the property of the debtor, and therefore plaintiff had the right to proceed immediately against the surety on the appeal bond. A different interpretation of the law would make of judicial suretyship a mere farce, the commencement rather than the end of litigation.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Lyman Harding, Samuel P. Blanc, H. Q. Morgan, for plaintiff and appellant. Bentinck Egan, J. Livingston, for defendant and appellee.
   Wily, J.

The order of seizure and sale in this case having been affirmed on appeal, with ten percent.'damages, plaintiff caused execution to issue and the mortgaged property was sold, leaving a balance still due by the defendant. The plaintiff then took a rule on Robert Bloomer, surety on the suspensive appeal bond, to compel him to pay the balance due after the enforcement of the executory proceeding.

The court dismissed the proceeding by rule, on the ground that, as plaintiff had no personal judgment against the principal on the appeal bond, no execution had or could issue against him, and until all legal means are exhausted against the principal, his surety can not be made liable. The correctness of this doctrine can not be doubted. 9 La. 229; 10 Rob, 136, 191; Q. P. 596.

The plaintiff, however, contends that as the principal on the appeal bond, Jesse R. Irwin, tutor, has no property belonging to the tutorship, it would be a vain thing to proceed against him, and therefore this proceeding can be maintained under the cases 1 An. 122, 11 An. 124, 20 An. 512, 25 An. 124. The difficulty is, there is no proof in the record showing that the tutorship is insolvent or without means to pay the debt for which the defendant is the judicial security. The facts disclosed in the record do not justify the legal conclusion.

Judgment affirmed.

On Rehearing.

Ludeling, C. J.

This is a suit, by rule, to compel a surety On an appeal bond to pay the remainder of the judgment, which had been affirmed on appeal. The said appeal was from an order of seizure and' sale. It is contended that the proceeding against the surety was premature, as only the property mortgaged had been sold under the writ and no execution had been issued against the judgment debtor and returned nulla bona. If this proposition be correct, to require a bond for an appeal irom an order of seizure and sale is an idle form, for having exhausted his remedy under the executory process-, the creditor would have to sue the debtor; and if he appealed from the personal judgment against him, a new appeal bond would have to be given and the surety on that appeal bond would have to answer for the payment of the personal judgment rendered on appeal, if the debtor had not property sufficient to satisfy said judgment. The surety on the appeal bond, given for the appeal from the order of seizure and sale, would not be a party to the second proceeding.

But it has been decided by this court that to suspend the execution of an order of seizure arid sale, by appeal, a bond must be given in conformity with the requirements of article 575 of the Code of Practice. 20 An. 179; 22 An. 36. Article 575 of the Code of Practice requires the appellant to “ give his obligation, with a good and solvent security, residing in the jurisdiction of the court, in favor of the appellee, for a sum exceeding by one-half the amount for which the judgment was given, if the same be for a specific sum, as surety for the payment of the amount of such judgment, in case the same be affirmed,” etc.

Section thirty-seven of the Revised Statutes of 1870 declares, I'm all cases of appeal to the Supreme Court, or other tribunals in this; State, if the judgment appealed from be affirmed, the plaintiff may,, on return of the execution that no property has been found, obtain a. decree against the surety on the appeal bond for the amount of the judgment, on motion, after ten days’ notice, which motion shall be-tried summarily and without the intervention of a jury, unless the-surety shall allege, under oath, that the signature to the bond purporting to be his signature is not genuine, or that the judgment has been, satisfied.”

The only execution which it was possible for the judgment creditor to cause to be issued, was issued and returned not satisfied. The requirements of the law were substantially complied with in this case. The surety knew that under the executory process no other property could be sold except that which was included in the mortgage, and when he stopped that writ by signing the appeal bond he obligated.’ himself to pay the amount of such judgment for which the writ had issued, if affirmed on appeal.

If it be true that the surety can not be proceeded against in this case, because the proceeding is in rein, it would be equally true as to sureties on appeal bonds in cases of attachments, where the absentees made no personal appearance. A construction of the laws which leads to such conclusions can not be correct In Alley v. Hawthorne this court said: “But, as in the present case, suppose an execution can not" be lawfully taken out against the property of the debtor — suppose he has made a cessio bonorwm, or has died and his succession is under administration, will the law turn the judgment creditor over to a labyrinth of creditors, to await the tardy litigation of a litigated or insolvent succession 9 Is this the security to which he is to be referred on having his rights finally adjudicated upon, after a delay which the surety has enabled the debtor to obtain ? If it be so, the judicial suretyship is a mere solemn farce, the commencement rather than the end of litigation, and the provision of the law for the satisfaction of the debt is a mere mockery, not worth having, and would often be attended with more vexation, expense and delay than the pursuit of the debt itself. We think that, if the creditor can not take out his execution on the judgment by reason of a change in the condition of the debtor’s estate, which prevents its being reached by that process, the law requires from him no act in order to secure his immediate recourse against the surety on an appeal bond, and that we can require none.” 1 An. 126. The reasons given in that case are applicable to the present case.

By reason of the nature of the judgment, no execution could be taken out after the return of the order of seizure and sale which could reach the property of the debtor, and therefore he had the right to proceed immediately against the surety on the appeal bond. It is therefore ordered that our former decree in this case be set aside; that the judgment of the lower court be annulled, and that there be judgment in favor of the plaintiff against Robert Bloomer for the sum of $4,666 94 and costs of both courts.

Wyly, J.,

dissenting. Article 594 of the Code of Practice provides, that from the moment citation of appeal is served on the appellee, the appellant can not withdraw the appeal, etc. Article 595 provides that appellant may withdraw his appeal, on motion in the lower court, before the appellee has been cited, and in such case he may renew the appeal within the time allowed for taking an appeal. Article 596 says: “If, on the execution of the judgment of the appellate court, there is not sufficient property of the appellant to satisfy the judgment and costs, the appellee may obtain judgment against the surety given by the appellant; provided, that no suit shall be instituted against such security, until the necessary steps shall have been taken to enforce payment against the principal.” And the language of article 597 is: “ The rules provided in the preceding articles shall govern all appeals to the Supreme Court, whether the same be taken from judgments rendered by district courts or parish courts.”

Now, if the rule stated in article 596 is to govern or shall apply to all appeals to the Supreme Court, are we not bound, by the express command of the lawgiver, to apply it to this case, where a surety is sued and sought to be made liable on an appeal bond ?

Article 596 must apply to this suit upon a suspensive appeal bond from an order of seizure and sale, because, in precise terms, article 597 declares it shall apply to all appeals, to the Supreme Court. The article is clear and free from ambiguity. There is no room for construction, or for an argument supporting the views of the majority of the court, based upon convenience and the equitable rights of the parties. The rights of the parties have been fixed in precise terms by the law, and this we must administer to them as we find it.

By article 596, which I have quoted and which I regard as the law of the case, the appellee may obtain judgment against the surety on the appeal bond, if, “on executing the judgment of the appéllate court, there is not sufficient property of the appellant to satisfy the judgment and costs“ provided that no suit shall be instituted against such security, until the necessary steps shall have been taken to enforce payment against the principal.”

Here the appellee has executed the order of seizure and sale, affirmed by the Supreme Court, and there was not sufficient property of the appellant (embraced in the mortgage) to satisfy the judgment and costs. And without taking necessary steps to enforce the payment of the balance of the debt against the principal, the appellee rushes into court with a rule and proposes to take judgment against the surety.

Appellee has complied with one clause of article 596; she has enforced the order of seizure and sale against the mortgaged property of the appellant and found it insufficient to pay the judgment and costs, but she has in no sense complied with the other clause of that article contained in the proviso, which is: “ That no suit shall be instituted against such security until the necessary steps shall have been taken to enforce payment against the principal.”

Now, I take it that this proviso is a most important part of the article; it was not thrown in as a high sounding and meaningless clause, in order to round off the article.

Appellee has complied with one clause and ignored the other; and jn this, it seems to me, she has been sustained by the majority of the court.

I can not see how the appellee has complied with the proviso, the condition precedent to suing the security. How has sbe taken “the necessary steps to enforce payment against the principal?” Has she sued the principal? She has not. Has she shown the insolvency.of the principal and, therefore, her right' to be exonerated from suing him, because the law does not require a vain thing? There is no proof in the record showing the insolvency of the principal.'

In my opinion the clause “ necessary steps to enforce payment against the principal,” means necessary legal steps; a suit, judgment and an attempt to make the money on execution. This the appellee Las not attempted to do. She asks to be excused from complying with the law (the proviso of article 596), on the ground that it would be inconvenient, that great delay might occur in suing the principal, because lie might take an appeal, etc. To this my reply is, that an argument of inconvenience or hardship accruing to the appellee can not be opposed to or be made to override an express provision of law.

Besides the rule of practice stated in article 596 of the Code of Practice, which plaintiff has failed to comply with, I find the same requirement in article 3066 of the Revised Code,"under the title of suretyship. That article declares that: “A judicial surety can not demand the discussion of the property of the principal debtor. But no suit shall be instituted against any surety on an appeal bond, nor on the bond of any administrator, tutor, curator, executor or-syndic, until the necessary steps have been taken to enforce payment against the principal.” Have the necessary legal steps been taken to enforce payment against the principal, in the case at bar? They have not. Then by the express terms of the prohibitory' law quoted, plaintiff can not sue the defendant representing the surety on the appeal bond.

I also object to the 'conclusion of my learned associates, because in my opinion, it, in effect, makes the condition of the surety ón a suspensive appeal bond in an order of seizure and sale more onerous than that of the principal, thereby subverting an important principle of the law of suretyship and the express provision of article 3037 of the Revised Code.

For the payment of the balance due after exhausting the mortgaged property, the principal is only suable by the appellee in a personal action; he must be cited and be permitted to enjoy all the delays of an ordinary suit. The surety, however, is not thus favored ; he is proceeded against summarily by rule;' he is not cited; he can not enjoy the delays accorded to the principal. The money may be made speedily of him ; but no summary remedy is given by which he can recover from the principal that which he has been compelled to pay on his account. I am slow to believe that the lawgiver gives the creditor a more summary remedy against the surety than he has against the principal. It looks to me like changing the position of the surety and principal, or making the position of the former more onerous than the latter.

The question was never presented to this court before. It is an important one. If the conclusion of the majority of the court is adhered to as the true exposition of the law, the result will be, that after the mortgaged property has been sold on an order of seizure and sale that has been affirmed on appeal, no appellee will hereafter sue the appellant for the balance due him; he will proceed at once by rule' against the surety on the appeal bond, and leave the latter to make the money as best he can from the principal debtor.

In view of article 596 of the Code of Practice, and also the express provision of article 3066 of the Revised Civil Code, I adhere to the opinion expressed in our former decision of this case, that the surety can not be made liable until all legal means have been exhausted against the principal.

When judgment has been recovered against the principal for the balance due to the plaintiff and the money can not be made on execution, a rule will lie and the surety can. be made liable, but not till then, unless by insolvency it would become useless to sue the principal.

If the principal should appeal, as in the case supposed by counsel for plaintiff, and another ■ suspensive appeal bond were given, the result would be, according to my view of the law, the appellee would have recourse against the surety on each of the bonds for the payment of the debt, it the principal could not be made to pay after taking necessary legal steps. But if the money could be made on execution out of the principal, neither of the sureties on the two -bonds would be liable.

Much stress is laid on the case of Alley v. Hawthorn, 1 An. 122, which decides: that the creditor is not bound to discuss the whole estate of the principal. He is in no case bound to do more than take out an execution, and where, in consequence of a change in the condition of the estate of the principal, it can not be reached by that process, no act is required on the part of the creditor to secure his immediate recourse against the surety. I entirely concur in the soundness of that decision; but I fail to perceive its application to this case.

Unless by a stretch of fancy it should be supposed that a change has happened in the condition of the principal, so as to put his property beyond the reach of execution, when the mortgaged property has been sold and the executory process can not be directed toward other property of the principal. This is a mere falacy. . Executory process exhausted against the mortgaged property, can not for the balance due the creditor, be directed against the other property of the principal, if he were a millionaire. The wealth, solvency or pecuniary condition of the principal is a matter of total indifference. The residue of the money can not be made on execution, after the sale of the mortgaged property, not on account of any change of condition of the principal, but solely because the law does not allow an execution to issue for the balance due after exhausting the mortgage, until a judgment has been rendered for such balance. In the case at bar the money can not now be made on execution because there is no judgment against the principal.

The insolvency or change of condition of the principal is not in this case.

Here the sole question is, can the surety on a suspensive appeal bond in an order of seizure and sale, be proceeded against by rule for the balance due after exhausting the mortgage, where no personal judgment has been rendered against the principal for said balance, and where it is not shown that a change has happened in the condition of said principal so that the money can not be made on execution against him.

For the reasons stated and those given in the first opinion of this court in this case, I dissent.

Howell, J.,

dissenting. I concur in the dissenting opinion of Mr Justice Wyly as to the right to proceed against the surety on the appeal bond as was done in this case.