text:
    No. 13,769.
    Charles O. David vs. M. Aaronson.
    Syllabus.
    The testimony makes out a case in which plaintiff and defendant were both at fault. The plaintiff, by connecting himself with an act of extreme violence against the defendant, and the defendant, by afterward charging plaintiff with having committed robbery, a charge not sustained by the testimony.
    The jury and the judge considered the act of violence as having provoked the unfounded charge, and treating the two offences together, found a verdict denying plaintiff’s demand and a judgment rejecting it.
    This court affirms the verdict and judgment.
    APPEAL from the Tenth Judicial District, Parish of Concordia— Dagg, J.

      Samuel Lucius Elam and J. S. Boatner, for Plaintiff, Appellant.

      Gustave Lemle, for Defendant, Appellee.
   The opinion of thfe court was delivered by

Breaux, J.

From a judgment rejecting his demand for damages in the sum of five thousand dollars, plaintiff prosecutes this appeal.

■ He alleges, in substance, that defendant wantonly and maliciously charged him with highway robbery; that he was arrested at his home and was compelled to go to Vidalia, the parish seat of Concordia parish, which is situated eighty miles from his home in that parish.

Defendant, in answer to plaintiff’s action, pleaded the general denial. He admitted in his answer that he made an affidavit and caused a warrant to be issued and plaintiff to be arrested for having robbed Kim of one hundred and twenty-five dollars, as charged, but he avers his good faith and denies that he was actuated by malice, and also avers that he acted on probable cause. He also sets up in his answer that plaintiff and Theodore Aust made a violent, unprovoked, premeditated, and furious assault upon him (while he was in his buggy on his way from his place of business to his home) with a pistol and a large buggy whip; that one held him while the other struck and beat him with the heavy end of the whip and his fists into an insensible condition, and he reiterates that while he was in that condition he was robbed, as before stated.

lie also avers in his answer that after he had been beaten he was prevented from going to the magistrate’s office and also from continuing on his way home. lie sets up, in the nature of a reconventional demand, that by the assault and asserted robbery he has been damaged in the sum of five thousand dollars. Plaintiff filed a motion to strike out -the demand, .for the reason that both parties are residents of the parish, and the demand is not connected with, nor does it grow out of the cause of action set forth in plaintiff’s petition. This motion was sustained and the reconventional demand dismissed. After this motion had been filed, defendant amended his answer by alleging that after the case had been called for trial the plaintiff and Aust had been found guilty of assault and battery upon him. The salient facts of the case, as developed by the record of evidence, are: Aaronson, the defendant, was the owner of two stores, one about half a mile from the mouth of Black river, and the other about ten miles above, at New Era. He left his New Era store at daybreak to return to his home near Black river. On his return he usually took cash with him, the amount of the week’s cash sales. Opposite plaintiff’s home he was accosted by plaintiff and his brother-in-law, who said to defendant that they were wronged by utterances of defendant’s wife, detrimental to a member of the family of the plaintiff. The brother-in-law then inflicted severe blows on the defendant, as alleged. On defendant’s arrival home he discovered that the amount with which he had left the store, and which he carried on his person, was missing. He made charges of assault and battery and robbery against the plaintiff and his brother-in-law. They were found guilty of the former offense, but not of the latter. The ease before us. for decision was tried by a jury in the District Oourt. The verdict was for the defendant, rejecting plaintiff’s demands.

Our review of the facts has resulted in convincing us that plaintiff and his brother-in-law acted together in attacking the defendant. They left plaintiff’s home together and met defendant on the road. The brother-in-law actively committed the assault, while the plaintiff stood in front of the horse and buggy, giving the attack his sanction by his presence and by, to some extent at least, participating in it, as shown by all the facts and circumstances of the case. They were, it seems, greatly provoked by calumnious reports which they assert defendant’s wife sought to circulate against them. It is well known that this is not cause sufficient in law to justify one in resorting to the commission of such an assault as that committed by plaintiff and his brother-in-law.

By the attack, he was put entirely in their power, and while the blows were being inflicted, defendant testified that he lost all consciousness. The bruises left on his face and neck lead to the inference, even without testimony, that he was surely rendered powerless, and it may be unconscious. After the attack, and doubtless greatly smarting under the treatment, discovering that he no longer had on his person the amount he had when he left his store in the early morning, the charge brought, under the circumstances, is not entirely out of all reason, although, as the result shows, it was not true that plaintiff had robbed him. In face of the fact that defendant was violently and without cause assaulted and beaten, we do not think that we should change the conclusion which is expressed by the jury of the vicinage in this ease.

Defendant was too hasty in bringing charges against plaintiff, but, none the less, he is not to be judged as one should be who has not been made to suffer greatly at the hands of the one or those whom he denounces. He had cause to complain. He had been injured, and even if he also went beyond the proper bounds, plaintiff and his brother-in-law were not blameless. They had actively taken part in arousing the bitter feeling which found vent in the charge made.

Plaintiff complained of the charge of the district judge in instructing the jury,in substance,that they had the authority to consider the amount of defendant’s damage, if they found that plaintiff had suffered injury for which he should recover damages, with the view of compensating one with the other. The question, strictly, is not one of compensation or set off, at the same time, those causes of action were inseparably connected the one with the other. In proving up plaintiff’s cause of action, that of the defendant was unavoidably brought before the court in all its particulars.

It being evident that both parties were in the wrong, we do not thirds it was error so to instruct the jury, since these causes of action were merged into one, to consider them, and to render a verdict disposing of both issues.

There was wrong done by each of the parties to the action. We have not found it possible, in view of the facts, to find that plaintiff is entitled to damages.

Plaintiff’s counsel have referred us to the article of the Code of Practice, No. 375, and to the case of Ooco vs. Guyral, 36 Ann. 293, in which it was decided that the action for damages was different from the main action, and necessarily connected with it.

Here, we think, the plaintiff’s assault did have something to do with tire charge of robbery, in this, that defendant was ill-treated by the plaintiff and his brother-in-law to the extent that even this erroneous charge is not to be considered in the light of a case where there has been no provocation or where the provocation was not as great as it is in this case. One who has been violently assaulted is not always reasonable in subsequent conduct and utterances regarding his assault: If he is not, the cause of his injustice and the injury suffered may be considered in arriving at a conclusion as to whether the victim of the injustice should recover damages for the after-effects to which he has, in a measure, contributed.

' There was no testimony before the court proving that defendant had had the dispatch complained of by plaintiff inserted in the “Picayune” newspaper. We do not think that this fact is of any importance in determining the issue.

For reasons assigned, the judgment appealed from is affirmed.

Rehearing refused.

Blanchard, J., takes no part, having been absent during the argument.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,940.
    State of Louisiana vs. Henry Posey.
    Syllabus.
    An error assigned as patent upon tlie face of the record, must plainly so appear, else there is nothing for the court to act upon.
    APPEAL from the Twenty-first,Judicial District, Parish of West Baton Rouge — Claiborne, J.

      Walter Guión, Attorney General, and Albin Provosty, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      J. E. LeBlanc, Jr., and Herbert & Herbert, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Indicted for murder, the accused was convicted of manslaughter, and from a sentence of eight years at penal servitude appeals.

Following conviction, a motion in arrest of judgment was filed on the grounds (1) that the indictment was not drawn in conformity to Section 1048 of the Eevised Statutes; (2) because the minutes of the court do not show there had been an arraignment of the accused; (3) because the case had been fixed for trial without the presence of the accused.

The next day, it appears, evidence was taken showing the presence o C the accused on the 4th of March, 1901, in open court, when he was arraigned and pleaded “not guilty,” and when his case was assigned for trial. The sheriff and clerk of court were the witnesses who deposed to this.

Whereupon, the trial judge ordered the minutes of court for the 4th of March to be corrected and amended so as to show the presence in court of the accused on that day when these things were done.

A formal judgment was written up and signed, ordering these corrections of the minutes, and in this judgment it is recited that the accused was present at the time the corrections were ordered to be made.

The motion in arrest was overruled. No bill of exceptions was reserved.

In this court an assignment of errors is filed, setting forth that before sentence the accused moved in arrest of judgment because the record failed to disclose his arraignment under the indictment, or any plea thereto, and that before passing on the motion the trial judge by e.c parte proceeding, taken without previous notice to the accused, upon the testimony of witnesses with whom he was not confronted and which testimony he was given no opportunity to rebut, ordered the minutes of court to be so corrected as to show an arraignment and plea. The allegation is made that these are errors patent on the face of the record. As this is the only defense insisted on in the brief presented on behalf of defendant, other points raised in the plea as filed are considered abandoned.

Ruling — We do not find it patent on the face of the record that the correction of the minutes was by ex parte proceedings, taken without previous notice to the accused, and ordered upon the testimony of witnesses with whom he was not confronted, ■ and whose testimony he was given no opportunity to rebut.

On the contrary, the judgment of the court ordering the correction states the' accused was present in court at the time of correction. We are not to infer he was not present during the whole time taken in bringing about the correction.

If it had been otherwise, if it be true he was not present during the whole time, and had not been given notice and opportunity as alleged, all these things could have been and should have been recited in a bill of exceptions, taken at the time or as soon thereafter as these matters had come to his knowledge. The court would then be in a position to pass upon the same.

But an error assigned as patent upon the face of the- record, must plainly so appear, else there is nothing for the court to act upon.

•Judgment affirmed.


author: Breaux, J.

text:
    No. 13, 927.
    State of Louisiana vs. Charles Hayes.
    Syllabus.
    The word “bigamy” as inserted in the Statute of 1898, completely denounces an' offence. It is universally understood, and a description of the offence of bigamy would not express more than the word itself.
    An indictment against one for having committed that offence is not invalid on the ground that it should have charged the crime strictly in the language of the statute.
    The offence is statutory. There are no forms at common law to be followed as adopted by the Statute of 1805. The offence may be described in the indictment as understood, and it will be valid if the description conveys all that is meant by the one word, “bigamy.”
    An indictment is valid when the offence is charged in words equivalent in meaning to those in the statute. '
    APPEAL from the Twelfth Judicial District, Parish of Sabine— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District-Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Thomas O. Armstrong and Thomas G. McMichael for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

From a sentence condemning him to be imprisoned in the State penitentiary for a period of one year for bigamy, the defendant appeals. The grounds upon which he seeks to have the verdict and sentence reversed are that the information describes no offence known to the criminal statutes of Louisiana; that statute 93 of 1898 is void, because, in drafting the bill denouncing bigamy, no attempt was made to define that offence. In the alternative, the defendant urges, if the statute 93 of 1898 be held valid, then that the indictment is invalid and void because it describes the offence denounced in section 800 of the Eevised Statutes and that this last statute does not, in terms, denounce bigamy. In addition, defendant’s counsel argue that the article of the Eevised Statutes cited has been repealed by statute 93 of 1898.

The statute just cited sets out that “any person who shall be convicted of the crime of bigamy in this State shall be imprisoned at hard labor in the State penitentiary for a period of not more than five years nor less than one year.” The complaint of the defendant is particularly directed against the language used in the indictment setting forth that he was married and, while married and undivorced, he feloniously, knowingly, and unlawfully did .marry one named in the indictment. The ground of objection is that the indictment is not responsive to the cited statute.

The offence “bigamy” is not eo nomine in the indictment. The close pleader would not, perhaps, have omitted the word. But it has been repeatedly held that an indictment is not defective and illegal if the offence is charged in words of equivalent import to those used in the statute denouncing the offence for which the defendant is prosecuted. Words of equivalent meaning may be substituted for the words of the statute. State vs. Brown, 41 A. 345.

The 'one who contracts a second marriage before the dissolution of the first is guilty of bigamy. This is the written law, whether expressed by the word “bigamy,” of well-known meaning, or whether defined as above, or as in the indictment attacked by the defendant. It is clear enough that the defendant was charged with having committed the crime of bigamy. The description given is a complete equivalent to the word. The offence is legally described by a definition which is more complete, if possible, than the word used in the statute. .

Defendant, in the second place, attacks as null and void the statute 93 of 1898, under which he was prosecuted. His grounds of attack are that the statute denounces the crime of bigamy eo nomine, without defining that offence, and that it was unknown to the common law in 1805, at the time of the adoption of that system in this State. True, as contended by the defendant, the crime of bigamy is not particularly defined by the statute of 1898. It remains, however, that the word has a meaning not to be misunderstood wherever the English language is spoken. It is so well understood that it requires no definition. It, in itself, denounces an offence. If a definition of the word had been inserted, it would only have encumbered the statute and would not have assisted the reader in discovering the meaning, which every reader knows very well. In State vs. Smith, 30 Ann. 846, the crime charged had not been defined at common law. The one word used did not convey a “world-wide definition of the term.” It had not, like murder, a fixed and definite meaning everywhere, or like other acts having the same meaning wherever it is understood at all. There are offences denounced eo nomine by statute, and wherever the word clearly conveys the legislative intent and is universally understood, they have been sustained as legal and valid.

While a different view has been taken when, as in the cited case, the word used conveys an uncertain meaning or is so broad and comprehensive as to render the statute uncertain and faulty, nothing of the sort suggests itself here, and we, in consequence, are unwilling to annul and set aside the statute.

We readily agree with counsel for the defendant that the crime of bigamy was unknown to the common law at the time of its adoption in this State. The offence is statutory, and for that reason the common law definitions are not to be thought of in drafting an indictment or information. It should, however, be denounced in the language of the statute or in language in every other way at least equivalent in meaning.

From our point of view regarding the statute of 1898, we do not deem it necessary to pass upon the question of repeal vel non of section 800 of the Revised Statutes. Whether this section is repealed or not, we hold that the indictment is legal under the statute cited.

Natural and positive law has pronounced against bigamy. The gravamen of the indictment brings the second marriage charged to have been contracted! under the ban of the statute. It only remains for us to affirm the sentence and judgment.

Eor the reasons assigned, the sentence and judgment appealed from are affirmed.


text:
    No. 13,884.
    State of Louisiana vs. J. E. Dunn.
    Syllabus.
    Motion to Dismiss.the Appeal.'
    1. The prosecution was for selling liquors, other than for medicinal and sacramental purposes, within limits stated in the indictment.
    2. The right of appeal is granted in such cases from a judgment which decrees a law unconstitutional. But no law was declared unconstitutional; on the contrary the court of the first instance maintained the indictment as valid and the sentence as legal.
    3. Defendant was prosecuted for a mere misdemeanor. The sentence does not fall within the lower limits of the jurisdiction of the Supreme Court. The appellate jurisdiction cannot be substituted for the supervisory jurisdiction, to have asserted illegal proceedings reviewed.
    APPEAL from the Thirteenth Judicial District, Parish of Grant— Blackman, J.

      Walter Guión, Attorney General, and James Andrews, District Attorney, (Lewis Guión, of counsel), for Plaintiff, Appellee.
    Defendant, Appellant, pro se.

   The opinion of the court was delivered by

Breaux, J.

At the October term of the District Court for the Parish of Grant, defendant was indicted for selling intoxica,ting liquor other than for medicinal, scientific, or sacramental purposes, within five miles of the Colfax High School. He was, after trial, found guilty and sentenced to' pay a fine of two hundred dollars and in default of payment to be imprisoned for sixty days.

On Motion to Dismiss ti-ie Appeal.

The attorney general interposed a motion to dismiss on t'he ground that this court has no jurisdiction for the reason that no law of this State has been declared unconstitutional by the court of the first instance, and, secondly, that no fine exceeding three hundred dollars or imprisonment exceeding six months has been imposed by the District Court, and because these propositions dispose of all the grounds brought up on appeal.

We have found that the defendant moved in the lower court to quash the indictment on the ground that the statute he assails under which he was tried and convicted was enacted in violation of Article 48 of the Constitution, being in conflict with its prohibitory terms. It appears of record that this motion was referred to the merits by the presiding judge. Defendant, at the time, reserved all his rights, as we take it, to urge his grounds of defense. The record does not contain any reference to this motion. If it was overruled, no bill of exceptions was reserved and nothing shows what was done with the motion. It must have been overruled, for the case is before us on appeal, as before stated, from a sentence of conviction.

It is manifest that the court a qua did not decide that the law defendant attacked is unconstitutional. The textual provisions of the Constitution on the subject of appeal set forth that this court has jurisdiction in all eases in which the constitutionality of any “tax, toll or impost whatever or a fine or forfeiture or a penalty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof, and to all eases wherein an ordinance of a municipal corporation or law of this State has been declared unconstitutional.”

It is very evident that the defendant has no right to an appeal under the terms of the Constitution just quoted. No law was declared unconstitutional.

Defendant here is the only one complaining of the statute denouncing the sale of intoxicants within the limits designated. He does not seek to appeal from a decree declaring its uneonstitutionality, but, on the contrary, is attempting to appeal because of the lower court’s refusal to decree its uneonstitutionality.

The second ground urged for its dismissal is even more fatal than the first. Defendant was prosecuted for a mere misdemeanor and the sentence imposed is far below the minimum jurisdiction of this court. He has not been condemned to imprisonment exceeding six months nor to pay a fine exceeding three hundred dollars, essentials as relates to jurisdiction. One against -whom it may he that an unconstitutional statute is brought to bear in cases of a criminal nature has no right to an appeal in those cases not within the jurisdictional limit on appeal. He is none the less not without remedy and he may have the proceedings reviewed, but not on appeal. The supervisory jurisdiction provides ample protection in all such eases. If the defendant chooses not to avail himself of the right he may have under the article of the Constitution vesting this court with supervisory jurisdiction, he can not in' these cases he heard on appeal.

The distinction between supervisory jurisdiction and appellate jurisdiction is defined both in law and in a number of decisions. We must adhere to the jurisdictional lines which are well defined.

Eor these reasons, the appeal is dismissed.


author: Blanchard, J.-

text:
    No. 13,754.
    Tensas Delta Land Company, Limited vs. C. & W. D. Sholars.
    Syllabus.
    1. Considering the mandatory requirement ol Act 88 of 1888, parties to an act of conveyance of real property are not at liberty to dispense with the production of evidence of the payment of taxes, and notaries and other officials authorized to execute public acts are forbidden by law to pass any act importing the sale, transfer or exchange of real estate until there is .produced the tax collector’s receipt or certificate showing payment of State, parish and municipal taxes assessed against the same for three years next preceding the execution of the act.
    2. The notice of delinquency required to be given or mailed to the tax debtor is sacramental, and failure to give it vitiates all subsequent proceedings taken for the sale of the property to enforce payment of taxes.
    3. Deeds of sale made by collectors of taxes are required by law, both constitutional and statutory, tp be received by courts in evidence as prima facia valid sales.
    4. But when there is evidence adduced sufficient to rebut this prima facia character of the deed, and to fatally imperil the presumption of regularity which attaches to the tax sale, there is thrown upon the party who holds under the tax title the burden of sustaining the latter by testimony aliunde the deed.
    5. In a matter of so much public importance as tax sales a record in writing in each case should be kept by tax-collectors of how and when, the manner, etc., of giving notice of delinquency to tax-debtors, and officially signed. And if this record does not make proof of its recitals, as does the return of the sheriff on a citation, it could be given that effect by legislation.

      APPEAL from the Sixth Judicial District, Parish of Ouachita— Hall, J.

      .Hudson, Potts & Bernstein, for Plaintiff, Appellant.

      Percy Sandel for Defendants, Appellees.

      Stulls & Bussell for O. D. and Mrs. W. A. Mathews, Warrantors, Appellees.
   The opinion of the court was delivered by

Blanchard, J.-

The plaintiff company asserts • ownership to the “Buck Baker” plantation, in the parish of Ouachita, containing 378.97 aeres, and has instituted this petitory action to be decreed owner and tb be placed in possession thereof.

Whether or not the company is entitled to recover depends on the validity of a tax adjudication made to the State of Louisiana by the sheriff and tax collector in June 1896.

The property was acquired by purchase by J. T. Bryant from Mathews and wife in March 1895, and the deed was duly registered in the conveyance records.

It (the property) was, therefore, properly assessed to Bryant for the taxes of 1895.

Bryant did not pay the taxes, and in February 1896, conveyed- the property to S. C. Trimble for $5,500. Had the notary public before whom this act of sale Was passed observed the law requiring production of evidence of payment of taxes before executing the deed, the present suit and all the trouble and expense incident to same would have been avoided.

Instead of requiring evidence of the payment of taxes, he inserted a provision to the effect that the parties to the act dispensed with the production of tax receipts showing payment of taxes.

In view of the public interest, we deem it advisable to say that, considering the mandatory requirement of Act 88 of 1888, parties to an act of conveyance of real property are not at liberty to dispense with the production of evidence of the payment of taxes, and that notaries are forbidden by the law to pass any- act importing the sale, transfer or exchange of real estate until there- is produced the tax collector’s receipt or certificate showing payment of State, parish and municipal taxes due on the same for three years next preceding the execution of the act.

Immediately upon his'acquisition of the property Trimble conveyed it to C. D. Mathews, and again there was incorporated in the act a provision dispensing with the production of tax receipts.

In September following (1896) Mathews and wife conveyed it to C. and W. D. Sholars, defendants herein, and this act, too, purported to dispense with evidence of payment of taxes.

The Messrs. Sholars went into possession and this suit is brought ' against them.

Bryant having failed to pay the taxes on the property for 1895, the sheriff and tax collector proceeded to enforce payment.

The first requirement of the law (Art. 210 of the Constitution of 1879 and Sec. 50 et seq. of Act 85 of 1888) was the giving of notice, written or printed, to the tax debtor that his taxes on the property must be paid within twenty days, or that the property would be sold to enforce payment.

The tax collector is directed to commence giving these notices to delinquent tax payers on the 2nd of January of each year, and in the country parishes it suffices that the notice be sent by mail to the postoffice of the tax debtor, addressed to the latter.

Sec. 51, Act 85 of 1888.

On the 2nd of January 1896 and until the middle of February of that year Bryant was the owner of record of the property in question and was, therefore, the proper party to whom to give the notice.

Twenty days after mailing the notice, or as soon thereafter as practicable (the taxes not being meanwhile paid), the sheriff is required to proceed to advertise for sale the property thus delinquent.

Sec. 53 of Act 85 of 1888.

The property in dispute here, with other property delinquent in the matter of' payment of taxes, appears to have been advertised for sale from the 23rd of May to the 27th of June 1896, and offered for sale for taxes on the latter day.

It appears, further, that no bid was offered for the property assessed to Bryant, and, in default of a purchaser, the same was adjudicated to the State as required by law.

Formal act of conveyance was made by the sheriff to the State following the adjudication.

From the State the property passed to the Tensas Basin Levee District by virtue of Act No. 77 of 1888 and deed from the auditor carrying the same into effect.

The commissioners of the Tensas Basin Levee District sold it, in November 1898, to the plaintiff company, and the present action is brought to vindicate the title thus acquired.

From an adverse judgment in the court below plaintiff prosecutes this appeal.

Ruling■ — One of the defenses set up is that the State acquired no title to the property at the tax sale because the notice required by the Constitution and statutory law was not given to the tax debtor prior to the advertisement and sale of the property.

This notice is sacramental and failure to give it vitiates all subsequent proceedings taken for the sale of the property.

If, therefore, it should appear there was failure to give notice, the State acquired no title at the adjudication, and could and did convey none to her subsequent vendees.

The deed from the sheriff to the State contains the recital that the notice required by Act 85 of 1888 had been given and that all of the requirements of the statute leading up to the ta¡x sale had been observed.

The Constitution of 1879 (Art. 210) and the Constitution of 1898 (Art. 233) direct that all deeds of sale made by collectors of taxes shall be received by courts in evidence as prima facie valid sales.

Giving that effect to the deed in question here, it remains to be seen whether or not the testimony as to want of notice adduced by defendants rebuts the prima facie character of this deed and overthrows the presumption of regularity which attaches to the tax sale. '

The tax collector who initiated the proceedings went out of office before the day of the tax sale.

If notice to Bryant was given at all, it was given by -him. He inserted the advertisement of the property for sale for taxes on May 23rd, 1896, and surrendered office to his successor on June 1st following.

The new sheriff officiated at the sale on June 27th and executed the deed to .the State. He knows nothing about the antecedent steps taken by his predecessor.

The latter is dead and his evidence is lost to the case.

His deputy sheriff was called to the stand by defendants and testified that the only record kept in the sheriff’s office of demand and notice to a delinquent tax debtor was a mere check mark made opposite his name on the tax rolls.

It is unfortunate if this practice obtains in sheriffs’ offices generally chroughout the State. In a matter of so'much public importance as tax sales, a record in writing in each case should be kept by tax collectors of how and when, the manner, etc., of giving notice of delinquency to tax debtors, and officially signed. And if this record doeá not make proof of its recitals, as does the return of the sheriff on a citation, it could be given that effect by legislation.

That portion of the tax rolls of Ouachita parish containing the assessment against J. T. Bryant was brought up in the original, and opposite his name, appears no check mark, while under his name appears these words written with a lead pencil: “Belongs to C. D. Mathews, Hillsboro, Texas.”

This entry or memorandum id shown to be in the handwriting of the then sheriff. There is evidence going to show that while the title of record was in Bryant he was not in fact the real owner of the property, though that circumstance has no bearing on the case. It suffices that he held the legal title of record. Having it, the property was properly assessed to him' and he was the party to whom the notice should be given.

It might be inferred from the sheriff’s memorandum, as above, that he refrained froin giving notice of delinquency to Bryant because he had learned he was not the owner. But the court does not permit itself the latitude, and the law does not sanction it, of drawing inferences to overthrow tax titles.

Nor is it necessary here.

Undoubtedly, a check mark, such as that shown by the testimony to indicate that notice of delinquency had been mailed, had once been made opposite Bryant’s name and afterwards erased. The erasure is plainly visible. Who made it and when made, who erased it and when erased, does not appear, and if that were all, we would not consider the prima facie validity of the sale had been affected.

But there appears the testimony of Trimble and Stubbs, who, in the spring or summer of 1899 before this suit was filed, examined the tax rolls with reference to the assessment of Bryant. Both testify that at that time there was no check mark either before or after the name.

Trimble was the owner in part of mortgage notes affecting tbe property, and if the sale to the State was a valid one his security was lost. Stubbs was employed as attorney to give an opinion as to the validity of this sale, and, it seems, finding there was wanting on the records the usual evidence that notice had been given to the tax debtor, he advised his clients the sale would not hold.

Both testify that neither did they notice, in their examination, the erasure which now appears upon the roll. Both were looking for the check mark, and so plain is the indication now upon the roll of a former check mark and its erasure, that had the erasure been there at the time of their examination it must needs have been seen. To that effect is their testimony.

The evidence of these witnesses, together with the testimony of Bryant that he did not receive the notice, we think, taken in connection with the tax roll, establishes that the record kept by the former sheriff,, indicating to what delinquents notice had been mailed, fails to show the sending of the required notice to Bryant, and that this is sufficient to rebut the presumption of regularity of 'the tax sale and of its prima facie valid character, invoked by plaintiff, and to throw upon the latter the burden of sustaining the tax title by testimony aliunde the deed.

This has not been done.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,744.
    Alida Landry et als. vs. J. D. Landry.
    Syllabus.
    1. Where a defendant in a petitory action has been in possession, claiming as owner, of the property sued for, for more than thirty years, the action is barred by prescription, whether he can show title or not, unless the plaintiff is within some exception established by law. A fortiori is this the case where it appears that the plaintiff has always lived in the neighborhood and is aware of such possession and claim.
    2. Minors are within an exception established by law, and the prescription above referred to is inapplicable to them. And where it is once made to appear that the person whose claim is affected is a minor the burden is east upon the party who pleads the prescription, to show at what time it began to run against such person by reason of his attaining majority.

      3. As between an administrator and tbe heirs of an estate, the latter are entitled to notice, other than by publication, of the flling by the former of his account, and, in default of such notice, they are not bound, save as to creditors, by the judgment of homologation.
    4. Where it is claimed that a person is estopped from suing for the recovery of property by reason of his having received the proceeds of the sale thereof, it should be made to appear, in order to maintain the plea, that such proceeds were received knowingly, since if he received them ignorantly, supposing that they came from some other source, though he may be compelled to refund, there is no estoppel.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Burke, Judge ad hoc.

      Weeks & Weeks and Todd & Davis, for Plaintiffs and Appellants.

      Anthony N. Muller, Thomas H. Thorpe and Andrew Thorpe, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is a petitory action for the recovery of a certain tract of land in New Iberia, to which the plaintiffs set up title by inheritance from Philemond, and Elize, Broussard, their grandparents, and of which, they allege that the defendant unlawfully holds possession, claiming to be the owner.

The defendant, for answer, avers, that in, or about, April, 1866, his wife, Clelie Broussard, who was one of.the daughters, and heirs, of said Philemond, and Elize, Broussard, bought the interests of her coheirs in the property in question and took immediate possession thereof, as owner, and that she retained such possession until her death, in 1896, when defendant, as her universal legatee, succeeded her; and that defendant has, since then, been in undisputed possession of said property, as owner. He alleges that the notary before whom the act by which his wife acquired said property was passed neglected to register the same and that he, defendant, has been unable to find the original of said act. or to ascertain what has become of it. And he further alleges and pleads that the plaintiffs are estopped to urge the claim here set up for the reason that they have accepted the estates of their grandparents, including the proceeds of the sale of the property which they now seek to recover, and have otherwise acquiesced in the disposition made of said property. Defendant further pleads res adjudicaba and prescription and makes a claim, in reconvention, for damages.

It appears from the record that Philemond, and Elize, Broussard died in 1865, or prior thereto, the dates not being shown, and were survived by seven children, or their representatives, to-wit: Eleonore, who died unmarried and without issue; Elina, married to Palemón '(or Rosamond) Broussard, who died, leaving children; Elmaize, married io Alexandre Broussard, who died, leaving children; Euzeide, married to Esteve Lamperez, who died leaving children; Glelie, married to the defendant, who died leaving her husband as her universal legatee; the representatives of Elesmene, a predeceased daughter, married to Louis Dugas; and the representatives of Emma, a predeceased daughter, married to Edouard Broussard. It further appears that there was a son, Belizaire, who died unmarried and without issue, and who is not shown to have survived his parents. The original plaintiffs were Alida and Loe, children of Elismene; Eleonore, Marie, and Euzeide, children cf Elina; Edgar and Joseph, children of Euzeide; Lionel and Amanda, children of Emma; and Louis, Oscar, Edmee and Julia, children cf Elmaise. Of these, Louis and Oscar, formally withdrew from the suit before the trial in the lower court, and, thereafter, there was judgment in favor of Lionel, and Amanda, Broussard, each for one-fourteenth of the property claimed and rejecting the demands of the other plaintiffs. Erom this judgment all the parties cast 'have appealed.

It further appears from the record that the defendant qualified as administrator of the succession of the said Philemond, and Elize, Broussard, and, in October, ■ 1865, caused an inventory to be made, which showed property to the value of $6950.58, of which $2500 represented the value of the real estate here claimed, and the balance represented the value of promissory notes, live stock, furniture and other movables found among the assets of the estates. Shortly thereafter, to-wit : November 30th, 1865, the whole of the said property, with the exception of the promissory notes, appraised at $3970.08, was sold at public auction, by order of court and agreeably to the recommendations of family meetings, as it is claimed, and the real estate appears to have been adjudicated to “Edourd Broussard for his children, Mrs. Olelie Broussard, wife of Dorcily Landry, Elmaize Broussard, wife of Alexandre Broussard, Euzeide Broussard, wife of Esteve Lamperez, Miss Eleonore Broussard; Elina Broussard, wid. of Rosamond (or Palemón) Broussard; and Louis Eloi Dugas, for his children, for the sum of $1950.00”, adding to which the price of the movables, and the total proceeds of the sale amounted to $2768.60. Thereafter, no further s'teps appear to have been taken, in court, until March, 1871, when a petition was filed on behalf of Edourd Broussard, tutor, praying- for an account, and, agreeably to said prayer, the defendant, in June, 1871, was ordered to file an account within ten days. This order does not seem to have been complied with, but, upon August 5th, 1872, the defendant filed an account in which he makes substantially the following showing, to-wit: he charges himself with the total proceeds of the sale made in 1865— $2768.60, following which, appears this statement: “This sum must be increased with the difference between the price of the adjudication of the town lots situated in New Iberia and the amount of the purchase price thereof, subsequently made by the heirs thereof 'to Clelie Broussard, wife of J. D. Landry, to-wit: $550.00”. He then charges himself with the notes, which were valued in the inventory at $3970.08, deducting therefrom $552.23, as “uncollected”, and $2419.84 as “bad debts”, and, from the balance, thus arrived at, further deducts various debts, charges, etc., and presents for distribution the sum of $2898.55, which, Eleonore Broussard having died unmarried and without issue after the opening of the succession, he proposed to distribute among the six surviving children, or their representatives, giving to each child, or branch, $483.09. He then supplements the general account so made with the particular accounts of the various distributees, charging them with payments on account of the movables purchased at the auction sale, etc., and showing balances in their favor, except in the case of Elmaize Broussard’s representatives. With this account, there was filed a petition for homologation and for the discharge of the accountant, and we find in the record the following note of the evidence offered in support of the prayer of said petition, to-wit:

“Statement op Facts.
“1st.' All proceedings of estate aforesaid.
“2nd. Sale of property — proces verbal thereof, marked ‘A’.
“3rd. Notice and advertisement in the newspaper, the Echo, of St. Martin, the official journal of the parish of St. Martin.
“These are to certify that the above and foregoing comprises all the evidence adduced upon the trial of the application for the homologation of the account of the administration presented the 5th day of August, 1872, by J. Dorcily Landry, administrator. (Signed) H. V. Four-net, Clerk.”

Upon the face of the account there is a waiver of notice by Alida Dugas, wife of Chas. Landry, and her husband, and by Olelie Broussard, wife of the accountant.

After the rendition, December 26, 1872, of the judgment homologating said account and ordering the discharge of the administrator “upon payment of all sums carried as due, to the interested parties”, there was a cessation of proceedings in the succession of Philemond, and Elize, Broussard, until the filing of this suit, in July, 1899. Turning our attention, however, to matters outside of court, and going back to the period following the sale at auction in November, 1865, the defendant claims, and has undertaken to prove, that, after the adjudication of the real estate to the heirs, and not later than January, 1866, the other adjudicatees, by act before Edmond Monge, notary public, sold their respective interests-in said property to his wife, Olelie Broussard, and that he, thereafter,’ inherited it, as- her universal legatee. His statement concerning the matter is that the parties all met at the house of his brother-in-law, Esteve Lamperez, together with the notary, who, with two witnesses, whom he took with him, had gone there from St. Martinville, and that the act was there signed by all the parties in interest.

Lamperez swears positively that no such act was signed and that no such meeting took place in his house. It is not pretended that those who are said to have signed as tutors had any authority to sell the interests of their wards, nor is it claimed that the act which is said to have been executed was ever recorded. There is some testimony to the effect that the defendant and his counsel have made an effort to find the original act, but not as much light is thrown upon the subject as might have been. Thus, for aught that appears, Mr. Monge’s sole official achievement as a notary public, was to go to Mr. Lamperez’s house, taking two witnesses, whom the defendant was unable to name, and pass the act in question. Other than this, there is nothing to show that he was a notary at all, or that he ever acted in that capacity at any other time or place, or left any records behind him. Under these circumstances, and particularly in view of the fact that Lamperez, at whose house this family gathering, the purpose of which was finally to dispose of the home of his wife’s parents, is said to have taken place, and who is the only living survivor, except the defendant, who was connected with the transaction, positively and emphatically contradicts the testimony of the defendant, whilst the defendant brings no witness and points to no circumstance, except the long silence of the plaintiffs. to corroborate his testimony, we have been unable to reach the conclusion that the sale in question is established. We find, upon the other hand, that the defendant and his wife went into possession of the property in question in the latter part of 1865, or early in 1866, and that they remained in undisturbed possession, claiming as owners, until the filing of this suit in July, 1899, that is to say: it was held as the property of the wife until her death in 1896, since which time it has been held by the defendant as the universal legatee of his wife.

Counsel for plaintiffs insist that defendant acquired possession of said property in his capacity as administrator and that he has not shown any change in the character of that possession, the contention being that the alleged adjudication of the property to the heirs-is not shown to have been legally effected inasmuch as the order of court and the proceedings of the family meetings on behalf of the minors have not been produced. In answer to this it may be said that the procos verbal of the auctioneer recites that the sale was made pursuant to an order of court, and to the advice of family meetings, and to the request of the administrator, and the fact that that recital remained of record, unchallenged, for more than thirty years might justify a presumption of its verity. Gentile, Administrator, vs. Eoley, Administrator, 3rd Ann. 146. Rut whether the order of court and the advice of the family meetings were obtained or not, it is indisputable that the property was adjudicated, by an auctioneer who claimed that he was acting under such order and authority and by such request, to the heirs in whom the title was already vested. This transaction had, at least, the effect that a surrender of the property by the administrator to the heirs would have had, in the absence of any action by the court or by the family meetings. The administrator no longer had the property under administration, but, having surrendered it to the owners, thereafter occupied'the same relation to it that any other stranger would have occupied, and, although we have been unable to concur in the conclusion, reached by the learned judge ad hoc, that there was such a conveyance to Mrs. Landry as is. claimed by the defendant, we think there can hardly exist a reasonable doubt that there was an understanding of some kind upon the basis of which she took possession of said property as owner. Our reasons for this conclusion, briefly stated, are as follows, to-wit:

It would otherwise be impossible to account for the fact that Mrs. Landry and her husband, the defendant, were allowed to remain in undisturbed possession, as owners, for more than thirty years of a piece of real estate which had been the homestead of, and was the only immovable property left by, an old couple, whose numerous heirs, children and grand-children, were living, and continued to live, in the immediate neighborhood. Oscar Broussard, who was sworn by the plaintiffs, testifies that he was told by his mother (Elmaize, wife of Alexander Broussard) that the property in question 'had been sold to his aunt Olelie at auction, from which, considered in connection with the recitals in defendant’s account, we are inclined to think that it was understood that there should be a formal adjudication of the property to all the heirs, but that Olelie Broussard (Mrs. Dorcily Landry) should thereafter pay the amount bid, plus a sufficient amount to make the price $2500, and take the property. Mrs. Alida Landry, one of the plaintiffs, and Esteve Lamperez, whose wife was one of the children of Philemond, and Elize, Broussard, have both given their testimony, and although they both participated to some extent in the proceedings connected with the settlement- of the succession of said decedents, and1 were evidently apprised, at the time, of what was being done, they do not deny that defendant and his wife have occupied said property as owners, though they offer no explanation of that fact. And, finally, Edourd Broussard, as tutor, in March, 1871, filed a petition, in which he prayed that the defendant be ordered to file an account, and such an order was made. There is no complaint in that petition, however, as to the disposition which had been made of the real estate, though the defendant and his wife had then been living on said property for about five years. We, therefore, conclude that there had been an adverse possession of the property in dispute, under a claim of ownership, for more than thirty years before this suit was filed, and that the plea of prescription of thirty years is, therefore, good as to the plaintiffs who are not excepted from its operation by reason of minority.

As to the plea of res adjudicaba it does not appear that any of the heirs, with the exception of Mrs. Alida Landry and the defendant’s wife, took cognizance, or were notified,‘of the filing of the administrator’s account, from which it follows that they are not bound by the judgment homologating the same.) Millaudon vs. Cajus, 6 La. 222; Carter vs. McManus, 15 Ann. 676. Nor can we discover any sufficient reason for holding that those who are in no wise bound by the account should be estopped by reason of having received payments from the administrator, since those payments appear to have been made and received as amounts due them as heirs of their grandparents, and not under circumstances which would justify the belief that they were informed of the recitals contained in the administrator’s account in regard to the real estate. In, fact, the two payments, amounting to $190, which appear to have been made to Mrs. Loe Dugas,, wife of J. J. Marie, were so made more than a year before said account was filed, and the receipts given by her convey no intimation that she understood that she was receiving the purchase price of the real estate in question. Under these circumstances, it cannot be said that there was any ratification of the alleged sale to Mrs. Dorcily Landry. Succession of Troxler, 46 Ann. 769; Breaux vs. Sarvoie et als., 39 Ann. 243.

As to the plaintiff, Mrs. Alida Landry, it appears, partly from her own evidence, that she had attained her majority when the wife of the defendant took possession of the property in question; that she took cognizance, and waived notice, of the account filed by defendant, in 1872; that, in 1892, she sold defendant a lot adjoining said property, by a description, in which the latter is referred to as belonging to Mrs. Olelie Broussard, wife of Dorcily Landry; and that she has remained silent as to her present demand for more than thirty years, although living in the same neighborhood as defendant, who has, during all that time, been living on the property which she now seeks to recover. We concur with the judge ad hoc in the opinion that the pleas of prescription and estoppel are well made as to this claim and should be sustained.

As to the plaintiffs, Mrs. Loe Dugas, wife of J. J. Marie, Leonie, and Amanda Broussard, and Edgar, and Joseph, Lamperez, they appear upon the face of the record to have been minors at the date at which the defendant’s wife went into possession of the property in dispute, and the burden was upon the defendant to bring them within the prescription relied on by him. As this has not been done, and as, for th» reasons which have been stated, they are not affected by the pleas of res adjudicata and estoppel, we conclude that they are entitled to recover.

As to the plaintiffs, Eleonore, Marie and Euzeide, Broussard, aud Edmee, and Julia, Broussard, (here is nothing in either the pleadings or the evidence to take their claims out of the prescription of thirty years; the exception as to them should, therefore, be maintained.

Counsel for the plaintiffs, in their brief, suggest that the plaintiffs should be entitled to recover the interests inherited by them from Belizaire, and Eleonore, Broussard, who died unmarried and without issue. This is true as to Eleonore, who survived her parents, but there is nothing in the record to indicate that Belizaire so survived. On the contrary, the impression which we derive from the record is that he died first. Concerning the interest of Joseph, and Edgar, Lamperez, it appears that their mother, Euzeide Broussard, left three children at her death, viz: Omer, Edgar, and Joseph, and that Omer died subsequently, so that his interest descended to his father and two brothers, which latter are therefore entitled, each, to his original interest (% of 1-7, or 1-21), plus the interest inherited from his aunt (%■ of % of 1-7, or 1-126), plus the interest inherited from hia brother, Omer (% of 7-126, or 21-1008), making a total of 11-144 to each, or 11-72 to both. The interests of the others, whose claims have been allowed, may be stated as follows, to-wit:

Loe Dugas, wife of J. J. Marie, and Leonie, and Amanda, Broussard, are, each, entitled to his, or her, original interest (% of 1-7, or 1-14) plus the interest inherited from her aunt (% of % of 1-7, or 1-84)— being a total of 1-22.

It is therefore ordeied, adjudged and decreed that the judgment appealed from, in so far as it rejects the demands of the plaintiffs, Eleonore, Marie, Euzeide, Edmee, and Julia, Broussard, be and the same is hereby affirmed at the cost of the appellants, and in so far as the said judgment is in favor of the plaintiffs, Lionel, and Amanda, Broussard, that the same be and is hereby amended to the extent of awarding to said plaintiffs, each, a 1-12, instead of a 1-14, undivided interest in the property sued for.

It is further ordered, adjudged and decreed that, in so far as said judgment rejects the demands of Mrs. Loe Dugas, wife of J. J. Marie, and of Edgar, and Joseph, Lamperez, the same be and is hereby annulled, avoided, and reversed, and that there now be judgment in favor of said plaintiffs and against the defendant, J. D. Landry, decreeing said Mrs. Dugas to be'entitled to an undivided one-twelfth (1-12), and the said Edgar, and Joseph, Lamperez, each, to be entitled to an undivided 11-144 interest in the property herein sued for. It is further ordered, adjudged and decreed that, as between the said -plaintiffs, Mrs. Loe Dugas, Marie, Lionel, and Amanda, Broussard, and Edgar, and Joseph, Lamperez and the defendant, the defendant pay the costs in both courts.

Breaux, J., having been of counsel in 1872, on an incidental issue, recuses himself.

Provosty, J., takes no part.


author: Provosty, J.

text:
    No. 13,953.
    State of Louisiana ex rel. J. C. Theus, District Attorney, vs. B. P. Edwards, District. Judge, Third Judicial District.
    Syllabus.
    Section 12 of Act 49 of 1894 is not repealed by Act 13 of 1896.
    ^ PPLICATION for writs of mandamus and certiorari.

      Walter Gnion, Attorney General, and J. G. Theus, District Attorney (Lewis Guión of counsel), for Eelator.
    Eespondent Judge pro se.

   The opinion of the court was delivered by

Provosty, J.

The defendant was indicted under Section 12 of Act 49 of 1894. He moved to quash on the ground that he was not indicted under any statute of the State of Louisiana. The court sustained the motion on the ground that Section 12 of Act 49, under which the defendant was indicted, is repealed by Act 13 of 1896.

Act 13 of 1896, thus invoked as repealing Section 12 of Act 49 of 1894, contains three sections; Sections 1 and 2 amend respectively Sections 14 and 19 of Act 49 of 1894 by re-enacting them; and Section 3 repeals all inconsistent laws. The effect of Act 13 of 1896 is to take out of Act 49 the Sections 14 and 19 therein found and to put in their place new Sections 14 and 19. After the accomplishment of this, the legal situation is the same as if Act 49 of 1896 had been originally enacted as thus amended. Act 13 of 1896 says not a word about amending or repealing Section 12 of Act 49, and the repeal of Section 12 must result, if at all, from an inconsistency between it and the new Sections 14 and 19 inserted by Act 13.

Section 12 reads as follows:

“Be it further enacted, etc., That any itinerant vendor of aiiy drug, nostrum, ointment, or application of any kind, intended for the treatment of disease or injury who may, by writing, print or other methods, profess to cure or treat disease or deformity by any drug, nostrum, manipulation, or other expedient in this State, shall, if found guilty, be fined in any sum not less than twenty-five ($25) dollars and not exceeding one hundred ($100) dollars for each offense, to be recovered in an action of debt, before any court of competent jurisdiction, or shall be imprisoned for a term of not less than ten (10) days or more than thirty (30) days, or be both fined and imprisoned.”

Section 14 as amended reads as follows:

“Be it further enacted, etc., That, if any person shall practice medicine in any of its departments, in this State, without first having obtained the certificate herein provided for, or contrary to the provisions of this act, the Board of Medical Examiners created by this act may through their respective presidents cause to issue in any competent court a writ of injunction forbidding and enjoining said person from further practicing medicine in any of its departments in this State, until such person shall have first obtained the. certificate herein provided for and under the provisions of this act.”

Before amendment the section read as follows:

“Be it further enacted, etc., That any person practicing medicine, in any of its departments, in this State, without first having obtained the certificate herein provided for or contrary to provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not less than fifty ($50) dollars, or more than one hundred ($100) dollars, or by imprisonment in the parish jail for a period of not less than ten (10) days or more than (90) days, or by both fine and imprisonment for each offense. It shall be the duty of the respective district attorneys to prosecute violations of the provisions of this act, before any court of competent jurisdiction.”

The two Sections 12 and 14 as they originally stood in Act 49 were not inconsistent. If they had been inconsistent they would have been so by pure accident, for it is not to be supposed that the Legislature after enacting Section 12 would have proceeded in the next breath to nullify it by enacting in Section 14 an inconsistent statute. The authors of Act 49 committed no such blunder. The one section provides for the case of itinerant vendors of drugs, etc., and seems to put their business unconditionally and for good and all under ban; while the other section provides for the case of practitioners of medicine, permitting them to be licensed; each section makes separate and different provisions for the case it separately deals with.

The two sections were not inconsistent as they originally stood in Act 49; and are not rendered more so by the amendment of Section 14. The section after amendment, is identical with what it was before amendment, except that the process it provides for is changed from criminal to civil. It continues to deal with a case different and separate from that dealt with by Section 12, and continues to be perfectly consistent with Section 12.

Section 19 deals with the liability of the State for certain costs, and has no bearing.

The judgment of the lower court is set aside and the case is ordered to be proceeded with according to law.


author: Nicholls, C. J.

text:
    No. 13,921.
    State ex rel. Louisa Hohn vs. Joshua G. Baker, Judge of the Criminal District Court for the Parish of Orleans, and James Hughes, Recorder of the First Recorder's Court for the City of New Orleans.
    Syllabus.
    1. Where by an ordinance of the city of New Orleans the doing of a certain act is prohibited as a public nuisance, and violation of the ordinance made punishable by fine or Imprisonment, and each day’s continuance of the nuisance is made a separate offence, a party convicted by a recorder upon separate and distinct and successive charges for violation on successive days of the ordinance, and separately sentenced upon each charge, cannot by certiorari have the sentence set aside as being an illegal division into different offences of a single offence, where in none of the complaints is the party charged with^more than one day’s infraction of the ordinance.
    2. The fact that evidence of the conviction of the accused of a prior and similar offence has been permitted to be introduced in evidence on his trial for the later offence and has s'erved as a “make weight” in the determination of the later charge, does not justify the claim that the party has been found guilty and punished a second time for the original offence, where other evidence has been introduced in support of the later charge, and the evidence of the prior conviction has been introduced by way of corroboration.
    ^ PPLICATION for writs of certiorari and prohibition.

      Charles H. Osterberger, for Relatrix.

      M. Bracos Dimitry, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Respondents.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator alleged that she was accused of having violated Ordinance No. 13,032 as amended by Ordinance No. 13,485, C. S., relative to keepers of assignation houses.

That on the tenth day of December, 1900, she was charged upon information received with having violated said ordinance as amended, on the first day of December, 1900.

That before a hearing was accorded her, upon the aforesaid ordinance, and amended ordinance, she was additionally charged upon information received, with having' violated said ordinance relative to keeping an immoral house from day to day up to and including the 36th day of December, 1900, the day on which a hearing was granted, until thirteen charges had been preferred against her for the alleged violation thereof on as many different days; that on the day of trial it was agreed that all of the aforesaid charges should be consolidated; that upon the trial thereof, and notwithstanding that no evidence was adduced against relatrix other than that of previous bad reputation and former guilt, the recorder of the First Recorder’s Court of New Orleans did wrongfully and illegally pronounce relatrix guilty of conducting an immoral house in violation of said ordinance and sentenced her to pay fines under the several charges aggregating two hundred and forty dollars, and in default of payment to imprisonment in the parish prison exceeding six months; that the record discloses the fact that relatrix was charged with having violated said ordinance within the time allowed her to vacate and before the expiration of the five days’ delay allowed under the ordinance; that the record discloses the fact that relatrix owns the property in question, and uses it as hei; home; that the record discloses, also, the fact that there is not a scintilla of evidence therein showing that she kept an immoral hfruse on the days mentioned in the several affidavits, or that she conducted an immoral house since receiving the notice from the mayor that her house was used for immoral purposes; that the record discloses, also, that the testimony upon which the recorder relied, as establishing the guilt of relatrix refers to alleged violations of the ordinances long since past, and for which alleged violations relatrix paid the penalty shortly after the commission; that a conviction under such circumstances operates as a dual punishment for the same offence in violation of the law for such cases made and provided; that relatrix applied for and was granted a' suspensive appeal from said illegal sentence returnable to the Criminal District Court for the Parish of Orleans; that said appeal was allotted to Section “A” of said court; that the judge of said court through error of law and a disinclination to disturb the findings of the recorder, affirmed the sentences of the recorder; that the opinion affirming the sentences discloses the fact that the judge of said Criminal District Court considered and gaye weight to the testimony of a witness, the only one who testified to the immoral use of the house, and who stated that ten months ago the house was so used by her, for which alleged infraction relatrix had already paid the penalty as disclosed by the record; that the conviction thereunder was equivalent to a dual punishment for an alleged infraction, and violates the constitutional rights of relatrix which guaranteed her against being punished twice for the same offence; that this multiplicity of charges and a conviction thereunder, in the absence of any evidence other than that of previous bad reputation and former guilt, although affirmed on appeal, operates as a divestiture of the liberty and property of relatrix without due process of law; that it was necessary in the premises for the protection of the liberty and property of relatrix, and to insure the observance of the true principles of law applicable thereto, that a writ of certiorari do issue returnable according to law, directed to the judge of the Criminal District Court (Section “A”) for the Parish of Orleans; that it was also necessary that a writ of prohibition issue directed to the recorder of the First Recorder’s Court restraining him from further proceedings herein until further orders.

In view of the premises said orders and writs were prayed for.

The judge and the recorder were ordered to show cause why the writs prayed for should not issue and the judge of the Criminal District Court was ordered to send up a certified copy of the proceedings had before him in the consolidated eases mentioned, to the end that their validity might be ascertained, and, in the meantime, and until further orders of court, all further proceedings in those cases were restrained.

The district judge sent up the record, and the district judge and the recorder, for answer, averred that the record showed that at the time the accused was placed on trial before the recorder, she filed no demurrer to the affidavits, and consented to a consolidation of the affidavits filed; that at no time did the accused file any plea or exception to the jurisdiction of either the First Recorder’s Court, or to the jurisdiction of the Criminal District Court; that using the language of the Supreme Court in the ease of State ex rel. Baker vs. Judge of Second Recorder’s Court, “it was unquestionably settled that until a plea to the jurisdiction of a court had been made and overruled an application for a writ of prohibition cannot be entertained” (43 Ann. 1119), that there were many authorities on this subject, some of which were State ex rel. Railroad Co. vs. Judge (37 Ann. 843); State ex rel. Girardy vs. State (38 Ann. 569); State ex rel. Shakspeare vs. Judge (40 Ann. 607); State ex rel. LeBlanc vs. Judge (40 Ann. 908); that the record shows that when the accused was tried before the recorder she did not question the legality or constitutionality of any fine or penalty imposed, or to be imposed under the said ordinances, but took advantage of her constitutional rights and appealed to the Oriminal Districi Court; that Article 139 of the Constitution of 1898 fixes the appellate jurisdiction of the Oriminal District Court as follows: “Appellate jurisdiction in all eases tried before the City Criminal Courts or Recorder’s Courts of the city of New Orleans which cases shall be appealable on the law and the facts, and shall be tried on the record and evidence as made and offered in the lower court”. That at the time the accused was convicted before the recorder she appealed on the facts alone and at no time contended or excepted on the ground that she was being deprived of any constitutional or legal rights; that the judgment of the appellate court shows that the recorder was affirmed on the facts as contained in the record.

Respondents prayed that the restraining order be set aside and that the writs applied for be denied and relatrix’s petition be dismissed at her costs.

Opinion.

No brief has been filed in this matter on behalf of t'he relatrix. We have, however, examined with care the record which has been sent up. We ascertain from it that an affidavit (Affidavit No. 645) was filed against relatrix in the First Recorder’s Court on the 10th of December, 1900, charging her with having violated on the 1st day of December, 1900, Ordinance No. 13,032 of the city of New Orleans, amended by Ordinance No. 13,485, relative to keeping an assignation house without the prescribed limits; that thereafter a second affidavit (Affidavit No. 648) was, on the 11th of December, 1900, filed against the same party, charging her, in the same court, with having violated the same ordinances on the 10th of December, 1900; that each day thereafter, commencing on the 12th of December, 1900, down to and inclusive of December 15th, 1900, distinct affidavits (Affidavits Nos. 650, 652, 653, 657) were filed against her, each charging her with having the day preceding, violated the same ordinances; that on the 17th of December, 1900, another affidavit (No. 662) was filed against her in the same court, charging her with having on the 16th of December, 1900, violated the same ordinances; that on the 18th of December, 1900, and each day thereafter, down to and including December 22nd, 1900, distinct and separate affidavits (Nos. 663, 666, 671, 677, 680) were filed against her in the same court, each charging her with having violated, on the day previous, the same ordinances; that on the 27th of December, 1900, an affidavit (No. 681) was filed against her, charging her with having, on the 26th of December, violated the same ordinance; that these various cases were taken up and tried on the 22nd and 27th of December, 1900, and after evidence adduced, the court found the accused guilty upon each of these affidavits, or charges, against her, and rendered separate judgments against her upon each, viz: upon affidavit No. 645, imposing a fine of five dollars, and in default of payment imprisonment not exceeding ten days; upon affidavit No. 648, a fine of ten dollars, and in default of payment not exceeding twenty days; upon affidavit No. 650, a fine of fifteen dollars, and in default of payment imprisonment not exceeding twenty days; upon affidavit No. 652 a fine of fifteen dollars, and in default of payment imprisonment not exceeding twenty days; and on affidavits Nos. 657, 662, 663 and 666, respectively, a fine of twenty dollars on each, and in default of payment imprisonment on each not exceeding twenty days; upon affidavits Nos. 671, 677, 680 and 681, a fine of twenty-five dollars on each, and in default of payment imprisonment on each not exceeding thirty days.

The accused appealed to the Criminal District Court, and that court having affirmed the judgment, this application was made.

We do not discover any irregularities or nullities in the proceedings. Defendant’s witnesses were heard as well as those of the city, and though both courts may have erred in their conclusions as to the weight' and sufficiency of the evidence to establish the guilt of-the accused that simple fact of itself would not warrant us in decreeing the proceedings or the judgments null and void and setting them aside.'

Relatrix is in error in supposing that because evidence was permitted to be introduced over her objections showing prior violations by her of the same ordinances and for the violation of which she had paid the penalty, that she was tried and found guilty a second time for those past violations and would be made to be punished twice for the 'same offence. She was not tried for those prior violations, nor found guilty thereon. The evidence on that subject was introduced simply as corroborative of and in aid of other evidence adduced to sustain the charges made for the later violations.

Relatrix denies the right and authority of the prosecuting officers of the city to have charged her on successive days and through separate affidavits with having committed separate offenses for each day that she might have kept an assignation house within the forbidden limits. She claims that she would be guilty of one single offense and subject to one single punishment and that within the limit of the punishment which- the recorder could impose for a single offense. The ordinances which she is charged with having violated make each day’s keeping of an assignation house a separate offense. The making of each day’s keeping open of such a house a separate offense was not the act of the recorder nor of the city authorities, but of the ordinances themselves. This identical question was before this court in State ex rel. Baker vs. Judge, 43 Ann. 1120, and decided adversely to the position taken by relatrix. The same question was similarly decided by the Supreme Court of Vermont in State vs. O’Neill, reported in 58 Vermont, 140, and referred to in O’Neill vs. Vermont, in the 144 U. S. Reports, 333 and 334.

The following extracts from Horr & Bemiss’ work on Municipal Ordinances, Section 152 (supported therein by authorities), bear upon this subject:

“In determining the validity of a judgment imposing a fine care must be had to discriminate between offenses that are several and distinct, and those that are continuing. Distinct offenses of the same nature may under some codes of procedure be prosecuted in one and the same action, in which ease the full limit of the law may be adjudged against the offender for each, regardless of the fact that the total fine thus imposed far exceeds the bounds of the jurisdiction of the local court. For instance, one might make any number of unlawful sales of intoxicating liquors on the same day, and each sale would be a distinct offense punishable separately.”

Other acts that constitute offenses against ordinances are continuing; that is, they may have numerous consecutive results, each of which may be considered an offense. Thus, if a person erect a huisance, not only the primary erection but also each day’s continuance, is a menace to public rights. A prosecution, however, would needs cover the tota1 offense prior to the date of its institution. In such eases, the limit ot the lawful fine, for maintaining a nuisance could not be exceeded for the same nuisance, but it is lawful to provide an initial fine for creating the nuisance and an additional fine for each day of its continuance. The fine, as thus computed, must not be made to exceed the limits prescribed for that kind of offense. It is no ground of objection to such an ordinance that the fine might under its provisions, be computed to exceed the limit.

In the present case no affidavit charged more than one offense for a single day’s infraction. (See Brown on Jurisdiction, Sec. 107.)

As we have said, the affidavits are separate and distinct, and so, also, were the judgments and sentences.

We are of the opinion that relatrix presents no ease for our interference.

It is therefore ordered, adjudged and decreed that the application of relatrix is refused, and that the restraining order heretofore granted be set aside, that the application be dismissed, and that relatrix pay the costs of the. proceeding.

Provosty, J., takes no part.


author: Bkeaux, J.

text:
    No. 13,905.
    State of Louisiana ex rel. J. B. Watkins vs. North American Land and Timber Company.
    Syllabus.
    In proceedings instituted to enable one interested to examine tbe books of the company, the defendant excepted, and averred that it had not been cited. The citation was addressed to the manager. The citation should have been addressed to the defendant, and not to its manager. Bertoulin vs. Bourgeois, 19 A. 360; State ew rel. B. B. vs. Justice, 48 A. 1417 ; MePadden vs. Sheriff, 49 A. 1359. The mandamus proceedings .were directed against the manager and do not have the effect of curing the defective citation. A citation was issued and was subject to the objection urged.
    The illegality of the citation renders it necessary to remand the case for further proceedings and for service of the writ of mandamus directed to the .defendant company.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.

      Cline & Cline, for Relator, Appellee.

      Pujo & Moss, for Respondent, Appellant.
   The opinion of the court was delivered by

Bkeaux, J.

On this application for a writ of mandamus, relator avers that he, as a shareholder, is entitled to oyer of the books* records, accounts, and documents of the North American Land and Timber Co. (kept at the office of the company at Lake Charles) at all times while the office is open.

He asks for an alternative writ of mandamus against Austin V. Eastman, manager of the company, to compel him to give to the relator or his attorneys an opportunity to exercise the right he claims as just stated. The alternative writ was issued and served on A. V. Eastman, manager of the North American Land and Timber Co. Relator is a stockholder of the company. He was not permitted, through an authorized agent, to examine the books and papers in accordance with his request.

The company excepted to the citation. The exception was overruled. The manager intervened and, upon objection, his intervention was dismissed. The ground of the exception overruled, as just stated, is that the citation is not directed to the respondent company. . The citation accords with the prayer of relator’s application for a mandamus and is addressed to the manager. Relator contends that a writ was issued and duly served on Austin V. Eastman, manager, together with a regular citation. The return shows that citation and a copy of the petition were served. No mention is made of a writ in the sheriff’s return of service., Erom this we must conclude that no writ was ever served. The citation was not what the law requires. It should have been directed to tire defendant and not to the “manager of the North American Land and Timber Co., Ltd.” This court has always interpreted the article of the Code of Practice literally and it has always been held that citation should be addressed to the defendant. Bertoulin vs. Bourgeois, 19 Ann. 360. Recently this interpretation was affirmed, viz.: in State ex rel. Railroad Co. vs. Justice, 48 Ann. 1417, and in McFadden vs. Sheriff, 49 Ann. 1319. In two of the cited cases, the one to whom the citation was addressed was the agent. The! court held that the citation was defective in form. In the other cited case, the citation was addressed to the president of the corporation. The court held that the citation was not made out according to the prescribed form. Here the citation was addressed to one who was only the manager of the company. The authority of repeated decisions regarding citation strikes the one before us with absolute nullity in so far as defendant is concerned. Plaintiff sets forth in argument that the citation, although null, afforded no cause for objection as it was a mere surplusage. This position would have had some force, perhaps, if the writ had been served. We have seen that it was not served.

Assuming for an instant that the writ had been served, as urged by plaintiff, he would be bound by the citation which was issued although there was no need of a citation. Yet if a citation is issued by authority of plaintiff, he is not in a position to assert that it is a mere surplusage. Plaintiff has not sought to disavow the binding effect- of the clerk’s action in issuing a citation. He is therefore bound by it and cannot be heard to say to any effect in argument that it was not done with his sanction.

Be this as it will, the only process served on the defendant for the examination of books and papers being defective, there was nothing upon which to ground future proceedings. The defendant company may, as plaintiff avers in the brief, have excepted in its own name. The exception was well founded, and, in consequence, defendant cannot well be held to have appeared in the suit save for the purpose of having its nullity decreed. ,

If the writ had been served (as well as the citation) as relator says it was, we question very much if it would have been a legal service on the defendant company for it would have called on the manager alone to permit relator to examine the books and papers. The petition for the mandamus is- directed exclusively against the manager and not against the defendant who should certainly, in our view, have been made a party. The manager alone answered this application. As he was on the ground and had charge of the books and papers, there was no good objection to his being a party defendant., He is therefore properly before the court, but his principal should also be brought into court by legal process which may be served on the manager, if he be the agent, under the article of the Constitution relative to the one upon whom to serve process. We must say that we have not found evidence of that fact in the transcript. The attempt of the manager to intervene, and the averments in this petition of intervention do not have the effect of putting the case at issue between relator and respondent. The attempted intervention was the act of the intervenor alone and not of the company of which he was the manager.

We must add here that we are not inclined to the opinion that the proceeding, summary in character, as intended by relator, would have been changed by the citation, had it been legal, into an ordinary action. This court said in a proceeding for mandamus that plaintiff had not changed the proceedings into an ordinary action by asking for a citation to issue against the defendant. We decide that citation being the only process which was issued as before stated and that it being defective, defendant was not bound to answer before legal citation had been served.

In a case presenting analagous issues, this court did not dismiss the suit but remanded the case. We adhere to the ruling in the cited case. Railroad vs. Montegudo, Justice of the Peace, 48 Ann. 1417.

For these reasons, the judgment appealed from is annulled, reversed and avoided.

It is further ordered, adjudged, and decreed that this case be remanded to the District Court for amendment of the application for mandamus and in order that legal service may be made of the order or writ calling the defendant in court to show cause why plaintiff should not be permitted to examine the books and papers of the respondent company. The costs of this appeal are to be paid by the appellee, and the costs of the lower court are to await the final decision of the case.