text:
    No. 13,896.
    State ex rel. Joseph Lasserre vs. Blanche Michel et al.
    Syllabus.
    1. It is error for a District Court to refuse to entertain, an application made to it by a husband and father, during his marriage, for a writ of habeas corpus to be directed to his wife, the application being based upon an alleged illegal detention by the latter of their minor child, upon the ground that the spouses can only bring suit against each other in specially permitted cases, and that application of this character is not authorized by law.
    2. A writ of habeas corpus is essentially a writ of enquiry in aid of right and liberty in respect to matters in which the State has an interest, though private rights may be involved. The writ simply brings the parties before the court for the ascertainment of the facts of the case. The court is clothed with a sound discretion, after hearing', to grant or refuse to the applicant the’ relief asked for. Neither spouse has an absolute right to the custody of the children.
    APPEAL from the Civil District Court, Parish of Orleans— St. Paul, J.

      Edwin T. Merrick, Philip Qensler, Jr., and Walter 8. Lewis, for Plaintiff, Appellant.

      Frank McGioin for Defendants, Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

Statement of the Case.

Nicholls, C. J. The plaintiff alleged that about the 19th of October, 1898, he was married to Blanche Michel, in the city of New Orleans; that of his said mariage there was issue, a girl child named Lucille, who was,at the institution of this suit, 19 months old; that on or about the 10th of January, 1901, his wife left his marital domicile and was then residing at No. 738 Napoleon avenue, and although summoned to return to the marital domicile had refused to do so. That his wife had taken away from him his said child and declined to return her to his care, and she was therein aided and abetted in the illegal retention of said child by her father, Henry Michel.

That his wife was unfit to have the custody and control of the said child for the reason that she was wanting in discretion; that the child had been in bad health for some time and she had exposed her by taking her away from home sick, contrary to the instructions of plaintifE’s physician, among other occasions on December 31st, 1900; that he, as husband and master of the community, was entitled to the custody of the child.

He prayed that his wife be authorized by the court to defend in this proceeding; that a writ of habeas corpus issue to his said wife, and said Henry Michel, commanding them to produce the said child to the court on the loth of November, and to show cause on said day why the writ should not be made absolute and relator should not be given the custody of his child; that after due proceedings the writ be made abso; lute. He prayed for general relief and for costs. The petition was sworn to.

The court authorized the wife to defend the suit and to stand in judgment therein and ordered that a writ of habeas corpus issue to her and to her father, Henry Michel, commanding them to produce the child in open court on the day fixed, and then and there to show cause why they kept the child detained, and why she should not be delivered to the care and custody of the relator.

The wife excepted to the petition on- the ground of no cause of action, and for answer to the petition averred that she was in possession of the child; that the child was of tender years .and needed a mother's care, and could not, with safety to said child, be deprived thereof. She control of her own child. She averred that her husband did himself force her to leave the home he had only recently set up for her, having deliberately abandoned her child in said home, discharging the only servant, cutting off her credit and leaving her and her child without either money, food or protection; that relator had never adequately supported either herself or her child, but had left upon her own family, during the entire time of their married' lie, not only the charge of supporting and housing her and her child, but also of supporting and sheltering himself; that he had more than once, prior to this occasion, abandoned his family and at other times threatened so to do; that by his long continued course he had forfeited his right to have her or her child and that he had frequently declared his inability to do so; that respondent and her child had with her parents a safe and comfortable home, where they had extended to them kindness and affection and had every need supplied; that relator could not support, maintain, or educate said chil or give it the necessary care. She prayed that the writ of habeas corpus be denied and that she have judgment given her for the custody of the child.

The District Court rendered judgment refusing the application, dismissing the proceeding, and maintaining the exception of no cause of action. It held, under Article 105 of the Code of Practice and the authority of Cowand vs. Pulley 9 Ann. 12; Theurer vs. Schmidt, 10 Ann. 296; Bourdette vs. Bourdette, 18 Ann. 41; Moore vs. Moore, 18 Ann. 614, that the public policy of the State, since the adoption of the Code of Practice, was against the maintenance of any civil suit between husband and wife, no matter what the cause of action or how serious the complaint when not within one of the exceptions of Art. 105 O. P. That it was 'against the policy of the State that husbands and wives should be heard complaining of one another during marriage. The court, in its opinion, referred incidentally to Articles 104 and 105 of the Code of Practice, to Articles 119, 120 and 229 of the Civil Code, to Carroll vs. Carroll, 42 Ann. 1074; Suberrith vs. Adams, 46 Ann. 124; State ex rel. Huber vs. Judge, 49 Ann. 1508; Bermudez vs. Bermudez, 2 M. 181; Heno vs. Heno, 9 M. 643; and Laycock vs. Black, 5 Ann. 189, and declared that “it did not always follow "that because there might be an undoubted obligation (right), there must necessarily be a means of enforcing it (C. C. 1757); that 'the legislator might in his wisdom have determined that it were better in the public interest that the fulfillment of certain obligations, however desirable, should not be made enforceable in law, and it was of the opinion that since the Code of Practice, the duties which husband and wife owed to each other and to their children were of this nature.”

The relator appealed.

Cpinion.

In the brief filed in this court on behalf of the mother, counsel analyzes and discusses the petition declaring that an examination of the same will show that there is no just cause of complaint against the wife justifying her deprivation of the custody of her only child; that it is not alleged that she is a woman of vicious life, or that the child is in surroundings not suitable and comfortable.

The District Court did not, in dealing with the question, consider the pleadings or the merits at all, but based its action upon the broad proposition that a husband is without legal right during marriage, at least without the simultaneous pendency of an action for divorce or separation from bed and board, to apply to a court of justice for a writ of habeas corpus directed to a wife for the custody of their child, and that courts were without legal right to entertain such an application, no matter what the particular facts of the particular case might be. Under such circumstances, consideration of the pleadings becomes unnecessary.

Counsel of the relator urges that a child remains under the authority of his father and mother until his majority or emancipation. That in case of difference between the parents, the authority of the father prevails, (citing Bosworth vs. Beiler, 2 Ann. 293; Woods vs. Perkins, 43 Ann. 349, and Gates vs. Renfrae, 7 Ann. 570;) that the writ of habeas corpus is a writ in the name of the State of Louisiana (C. P. 791).; that at common law a husband and wife can not sue each other, because they are regarded as one person (1st Ed. Am. & Eng. Ency. of Law, 9th Vol., p. 799; 1 Blackstone, 120; 2 Kent, 129; 8 Queen’s Bench, 934; Doe vs. Daley); but that the writ of habeas corpus would lie in favor of the one against the other (5 East. 221, The King vs. DeManneville; The People vs. Land, 2 Johnson, 375 (N. Y.)

Counsel calls the attention of the court to Bermudez vs. Bermudez, 2 Martin, 182-183; Hyde vs. Jenkins, 6 La. 427, and Prieto vs. St. Alphonsus Convent, 52 Ann. 683. It is urged that, under the court’s view “the husband, to enforce his legal rights, would either be driven to an action of separation from bed and board or for a divorce, which it was not the policy of the law to encourage (Gahn vs. Denby, 36 Ann. 74); or, he would have to have recourse to fraud or force.” In the case of Bermudez vs. Bermudez (2 Martin, 182-183), the court said:

“The paternal house is the proper residence of the family. If the wife choose to absent herself from it without offering to the court any reason, the court will therefore presume that none exists. De non apparentibus et non existendibus eadem est lex. In such a case they must consider her as the faulty parent. The father is the master of the family. His authority as to its civil force is founded on nature, and the care which it is presumed he will have for their education. While his conduct is proper, the court can not interfere with his authority, and will cause it to be respected. The mother, however, is not without her rights. If she be compelled to live separately from him on accoun t of ill treatment; if, from his conduct, she can show that the children are not likely to receive a proper education, or that it will be a dangerous example to them, the court will afford its aid to her solicitude, especially in regard to the daughters, and deprive the father of a power which it is likely he will abuse. For the right of the community, to superintend the education of its members and disallow what for its own security and welfare it sees good to disallow, goes beyond the right and authority of the father.” (Blisset’s case, Loft’s Reports, 748-749.)

It has been held elsewhere that where the wife breaks up the household and departs from her husband’s home wrongfully, whether it be done of her own purpose or from weakly yielding to the evil influences of others, she is not to be allowed to take with her the children of their union. (People vs. Olmstead, 27 Barb. 9; People ex rel. Nickerson vs. -- — , 19 Wend. 16; Church on Habeas Corpus, Sec. 443.)

But the father’s right to the custody of his children is not absolute, even during marriage, and even where there is no suit pending for a separation from bed and board. The courts in the United States, while adopting the legal principle that the father is usually entitled to the custody of his children, have been inclined to modify it by adopting the equitable principle that this right must yield in some instances to considerations affecting the welfare of the children, and by regarding more highly than was formerly done in England, the rights of the mother. (Iiurd on Habeas Corpus, Sec. 441.)

Thus, while the father may have the first title to custody of the children by nature, his claim may be disregarded by the court acting on a principle of natural justice, if his character and conduct render him unfit to be a guardian. They will not be delivered to him on a writ of habeas corpus, when it would be manifestly to their injury to do so; nor taken from the mother when the mother, blamelessly on her part, had been forced to live with her father, apart from her husband, and when it appears that they are well provided for by the mother and not likely to be by their father. Particularly is this so in cases where the matter at issue is the custody of an infant child of such tender years as to require the personal care of the mother, where the minor child is out of the possession and custody of the father. It by no manner of means follows that the prayer of the petitioner will be granted because the writ has been ordered to issue. The writ simply brings the parties before the court for the purpose of enquiry and the ascertainment of the facts of the case. The court is clothed with the power, with a sound discretion, to grant or refuse relief. The child itself, in contentions of this kind, is entitled to some measure of protection from the court. The parents, in issues of this kind, are not simply urging their own legal rights, but are acting for and on behalf of the child, and in respect to this matter the State itself, as stated in the Bermudez case, has an interest which goes beyond the mere right and authority of either the father or mother. The right of neither is absolute; the right of either, or both, depends upon matters in pais, into which it is the object of the writ to have full enquiry through an exhaustive examination, under oath, so that the tribunal may have before it all the light practicable.

We scarcely think that a writ of habeas corpus directed to a woman touching the custody of a minor child can be called a suit by the husband against the wife, because the party invoking the State’s action is a husband, and the party against whom the writ is directed is his wife, and the child is theirs. It is the result of a suggestion that the child is improperly restrained of its liberty, and that enquiry should be made into the facts of the case. It may be observed' in this connection that illegal restraint may exist without -the exercise of force or coercion. (Church on Habeas Corpus, Sec. 439.)

When the writ issues the wife is called into court in the name of and by the State itself, though this be done on the relation of the husband. It is true that the ultimate action of the court upon the writ may be iu aid and in enforcement of private rights — of t'he rights of the husband or of the wife in the premises — but the result is incidental and consequential.

The writ of habeas corpus is essentially a writ of enquiry, and upon matters in which the State itself is concerned, in aid of right and liberty. As mere enquiry is primarily sought and the costs of the proceeding will fall upon the relator in case the action of the State has been unadvisedly sought and obtained, the exact or precise legal interest which the relator may have in inaugurating the enquiry and in its result, should not be subjected to too rigid a test at the instance of those whose conduct and action are sought to be investigated.

We do not think that either husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce, to have the matter of the legal custody of the children judicially enquired into. Actions of separation or divorce should not be forced, nor do we think that where husband and wife are, as a matter of fact, living apart, the spouse out of the possession of the children of the marriáge and claiming the legal right to have such possession, should be driven to force or to fraud to obtain the same. Such a course of conduct would tend directly to breaches of the peace and to violence. It is right, proper and legal for the party entitled to the possession of the child to .obtain the same and under the sanction of judicial proceedr ings. It would be stretching the terms of Article 105 of the Code cf Practice for no good purpose and with no good results to hold otherwise. That article does not refer to proceedings of that character.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed; that the application for the writ of habeas corpus be reinstated, to be proceeded upon according to law, under the exceptions and answers filed by the defendants.

Breaux, J., dissents for reasons assigned.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,966.
    Vicksburg, Shreveport and Pacific Railroad Company, J. H. McCormack, Receiver, vs. W. N. Traylor, Sheriff, et al.
    Syllabus.
    Where it does not appear that petitioner in injunction availed himself of a writ of injunction improperly, in order to obtain delay and to harrass the one enjoined, and in addition where plaintiff in injunction succeeded in part in sustaining his injunction, although dissolved as to part, he will not be held liable in damages.
    APPEAL. from the Seventh Judicial District Court, Parish of Richland — Ellis, J.

      Stubbs & Bussell for Plaintiff, Appellee.

      Jonathan N. Luce for New Orleans & Northwestern Railway Co., Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The New Orleans and Northwestern Railroad Company, one of the defendants, appeals from a judgment of the District Court rejecting its demand for damages.

The facts are that in a prior suit the Vicksburg, Shreveport and Pacific Railroad Company, sued out an injunction restraining Traylor, sheriff of the Parish of Richland, from collecting any amount over and above the amount it had tendered in payment of its taxes. R. R. Co. vs. Scott, 52 Ann. 512. The New Orleans and Northwestern Railroad joined issue with the plaintiff in injunction, and claimed damages. It asked for judgment dissolving the injunction and for damages.

The injunction was dissolved, and, as before stated, all the demands of the defendant in injunction were rejected. On appeal, this court modified the judgment and sustained the injunction in part and’dissolved it in another part, that is, sustained the injunction as to the penalty of two per cent, claimed and dissolved it as to the five per cent, interest claimed on the amount due.

This court found in this suit that defendant’s reconvention contained two demands, one for interest and attorney’s fee resulting from the first injunction, and the second for interest, attorney’s fee, and other claims growing out of the last injunction. The court said that a question had been raised as to whether these demands having been rejected by the District Court, and the defendant not having appealed, were before the court through a prayer for the amendment of the judgment from which an appeal had been taken only by plaintiff in injunction.

The court said that the claim for damages growing out of the second injunction was identical and directly connected with plaintiff’s proceedings, and, in consequence, fell within the rule laid down in Lange vs. Baraneo, 32 Ann. 697. The court, although holding that the claims for damages arising in the second injunction were properly brought up on appeal, did not specially reject or allow the claim for those damages. Not having been allowed, although claimed, t'he one inference is that it was not the. intention to allow damages, particularly in view of the fact that all other issues were passed upon and the sheriff was directed to proceed with the collection of taxes indicated and no motion was made for damages. If it had been the intention to allow damages, the court would have directed the sheriff to collect an amount to pay them. We have noted that the court decided that the “damage as resulting from the second injunction is incidental to, and directly connected with, plaintiff’s petition,” vide ease cited supra.

But we have not stopped here, although we might have rested our conclusion without further discussion.

As relates to the damages we had originally considered, though not announced in express words (and we reiterate our views upon the subject), that plaintiff in injunction having succeeded in sustaining his injunction could not,-in law, be held liable for the damages claimed. Of course, if at all abused, the writ of injunction should be dissolved with damages.

This court held, in Barrow vs. Eobiehaux, 15 Ann. 70, that when sued out to enjoin the execution of an entire judgment, on the ground that the defendant is indebted to plaintiff in a sum being in an insignificant proportion to the amount of the judgment, it should be dissolved with damages. Is not the reverse of the proposition true, that when it is shown that the plaintiff in injunction acted in good faith and, in resisting seizure, showed that much of the amount claimed is not due, he should not be condemned for damages such as these here claimed ? See, also, Raiford vs. Thorn, 15 Ann. 81; Breedlove vs. Johnson, 2 N. S. 517; Fish vs. Hart, 11 La. 483; Wells vs. Gordon, 16 La. 219; Moranz vs. Clark, 6 A. 173; Williamson vs. Richardson, 30 Ann. 1173.

We come next to the case of the Vicksburg, Shreveport and Pacific Railroad Co. vs. Scott, Sheriff, 52 Ann. p. 512, in which this court, referring to damages asked in that case, said that the rights of the parties touching damages were reserved and the action became the subject of a separate and independent suit or demand, “and that is the position it occupies in the present action.” It was incidental to the first injunction, but not to the second. “From that standpoint, we think defendant should have appealed from the judgment disallowing it in the present suit. It can not be altered or reversed by a simple prayer for amendment. Upon this, defendant in injunction had brought up an appeal on his reconventional demand in the present suit.” Cox, Receiver, vs. Sheriff, 104 La. Reports, 501.

On the Motion to Dismiss.

A number of grounds are urged by appellee in support of the motion to dismiss the appeal. Inter alia, it is urged that intervenor and appellant has acquiesced in the judgment to such an extent as to deprive it of any right of contest. Appellant received of plaintiff the amount allowed by the court to it (the former), and the amount was received before an appeal was taken on the reconventional demand. The judgment on the main demand having become final, it was not acquiesced in on the part of the appellant, as relates to the reconventional demand, to receive the amount allowed. The question is not now res nova. In the present condition of the issues, the appeal being always a favored right, it will be maintained. Our view regarding the merits render our conclusion of no special importance. The motion to dismiss is refused.

•On ti-ie Merits.

The plaintiff in injunction had the right to an injunction as originally sued for. This is made evident by the agreement of compromise.

The petition for an injunction in the suit of the Railroad Company vs. Scott, Sheriff, contained two demands. One demand against the authorities, complaining of the assessment and valuation as excessive, and the other against the sheriff to restrain him from collecting the railroad tax.

The learned counsel for appellant fairly and frankly admits that the question of valuation and assessment was settled between the plaintiff and the local authorities, and an agreement entered into and signed by them; and that this demand was eliminated from the case contradictorily with all concerned. But the learned counsel for the appellant contends that, notwithstanding this elimination of part of the issues, the injunction suit remained in force prohibiting the sheriff from enforcing the ordinance of the Police Jury for the tax in favor of the New Orleans and Northwestern Eailroad Company and the restraining order on the injunction,prevented collection until the injunction was finally dissolved by the court.

The plaintiff in injunction had the right to an injunction as made evident by the agreement of compromise to which we have just referred. The injunction was not obtained illegally in the first instance, and it, was not directed against the intervenor. By the brief of intervenor’s counsel, in this case, we are informed that under an agreement, “plaintiff’s petition for injunction is to he taken and considered as its answer to the intervention and the case is submitted on, the statement'of facts and the document named therein apd on file, with the understanding that plaintiff tenders witnesses to prove certain allegations in its petition, and that intervenors object to the tender.” From this we see that the intervenors, not parties to the first injunction suit originally, chose to consider the petition for injunction as an answer to their petition of intervention, and this after having agreed with plaintiff that one of its demands, that relating to the assessment and valuation, was well founded.

Further, the assessment and valuation were agreed upon and were intended to be made the basis of the judgment which was afterwards rendered. It is said that by some oversight it was not included in the judgment. But the agreement of compromise is of record and is bonding upon all the parties concerned. It is evident that, by the agreement, the injunction was maintained in part. The plaintiff in injunction can not be held liable for damages. It must be borne in mind that no immediate effect was given to the agreement of adjustment of the parties. It looked to the judgment and it was in contemplation to make it the basis of the judgment. True, the litigation continued, but the effect of the agreement remained as a bar to a claim for damages, although plaintiff did not put an end to the litigation at the time the agreement was entered into. Raiford vs. Thorn, 15 Ann. 81; Carroll vs. Readheimer, 38 A. 374; Materne vs. Lion, 35th Ann. 988.

For the reasons assigned, the judgment is affirmed.


author: Breaux, J. Breaux, J.

text:
    No. 13,834.
    Vordenbaumen & Eastman vs. J. M. Bartlett et al.
    Syllabus.
    1. The owner who pays an amount to his contractor, after having received notice of the contested account of the laborer or material man, may be held liable for the amount, although he may not have served a copy on his contractor as he should have done. The "decision in Schwartz vs. Cronan, 30 Ann. 995, in this particular is overruled.
    2. The laws regarding owners, builders, workmen, and material men of a date prior to Statute 180 of 1894 have not been repealed, except in so far as they may conflict with the statute. The latter is only supplementary to prior laws on the subject.
    3. The owner did not make payment to his contractor in anticipation, but paid for work performed and material which had actually been used in the construction ; and on this score the security has no cause to complain.
    4. One of the plaintiffs, a member of the firm, claims for labor and material; at the same time he claims to have been released from his liability as surety on the bond. His firm is entitled to recover the amount of its claim.
    5. The question of the liability of this security remains to be determined.
    IN RE Vordenbaumen & Eastman, Applying for Gertiorari, or Writ of Review, to the Court of Appeal, First Circuit, State of Louisiana.

      Lee Emmett Thomas, for Applicant.

      M. O. Elstner, for Neith Lodge No. 21, I. O. O. F., Defendant.
   The opinion of the court was delivered by

Breaux, J.

On application for a rehearing by Breaux, J.

Breaux, J. This action was brought by plaintiffs on an attested account.

' Plaintiffs, asked for judgment for the amount and recognition of a privilege for its payment.

The contractor, Bartlett, filed a general denial. The owner, the Neith lodge of Shreveport, admitted having entered into a contract with this contractor for the erection of a building, under the provisions of Act 180 of 1894, and averred that one of the plaintiffs, Vordenbaumen, was one of the sureties on Bartlett’s bond, which had been executed in accordance with the terras of the act just cited. The lodge further averred that it had paid the amount stipulated in the contract, and that it was not indebted to the contractor at the date the suit was instituted.

The lodge particularly invoked the fact that Vordenbaumen was surety on the bond of Bartlett, contractor. The entire building, on which plaintiff worked and in the construction of which its materials were used, was completed on the 20th day of January, 1900.

On the 20th day of December preceding, plaintiff served an itemized account (for work done and materials furnished) on the defendant, but the -owner, the Neith Lodge, did not serve the attested account on the contractor, Bartlett, and did not seek to bring about an adjustment of the claims with this contractor.

The judge of the District Court found as a fact that at the date of the service of the attested. account before mentioned, the lodge owed an amount 'to the contractor under the contract, which it chose to pay out after notice of the attested account.

Our learned brother, in an elaborate opinion, concluded that the workmen and the material men have lost all right to recover from the owner. The owner, although notified, did not choose to serve a copy of the attested account he had received on the contractor. From this judgment plaintiff appealed.

The Court of Appeal also found, as did the district judge, that at the date of the service of the account, the lodge was indebted to the contractor, Bartlett, which was “afterwards paid by the owner to the holders of other claims”; but which decidedly inclined to a contrary view, the Court of Appeal deemed it a duty to follow the view expressed in Schwartz vs. Cronan, 30 Ann. 995, and for that reason alone, we are informed by the opinion, the judgment of the District Court was affirmed.

The contractor had rendered to the- owner all service provided for by the contract. The owner has paid the price agreed upon in the contract for erecting the building.

Before this payment had been made, we have noted that it (Neith Lodge) had been notified by service upon it of an attested account made out as required by Article 2772 R. C. C., from which the following is an excerpt: “It shall be the duty of the owner to furnish his contractor with a copy of the attested notice served upon him.” O. O. 2272. The laborers and material men had a claim upon the price, but no service of the attested account was ever made on the contractor as provided by the article.

Prior to the enactment of Statute 66 of 1844, workmen and material men had the right to sue and hold the owner for the amount he still owed the contractor at the date the suit was filed.

The purpose of the statute just cited was to enlarge the remedy in the interest of the workmen and material men. The title of the statute expressly indicates that such was the purpose.

If, as contended by defendants, because of the mere fact that the owner did not serve the attested account, as made his duty by the statute, he is at once and without further examination into the matter, o be considered released from liability, although he openly violated his duty 'and disregarded the notice; arid, despite the notice, paid the amount he was notified not to pay, then the statute fails entirely in carrying out the purpose expressed.

Our study of this statute has not led us to that conclusion. In our view an interpretation can be given to the statute that will carry out the purpose expressed in the title, which is to enable workmen and material men to collect' their claims.

The claim of the laborer and material man is not left to the will of the owner, who may be entirely unwilling to carry out the provisions of this statute. The creditor is not to be made to lose a right because of the failure of the debtor to fulfill a duty .imposed by statute. As we read this law, it seeks to protect all parties concerned — the owner, the laborer, the material man, and the contractor. The amount is only as it were, garnisheed in the hands of the debtor, to the extent that it may be necessáry to protect the creditor who has a claim. Contradictorily (under the terms of the statute, as we interpret it) with all parties concerned, the rights of the parties are fixed, and the creditor is paid in accordance with a decree of court, subsequently obtained, provided a prior settlement is not arrived at in the manner indicated. The statute does not ask for more than that the workman and material man shall let the owner know that his building has been in part furnished by his labor or with his material, and to that extent, from the unpaid balance in the hands, he expects to be paid. There is nothing in this to injure or oppress the owner. It only remains for him to notify his contractor and to hold needful amounts until it has been determined between the contractor and his creditor whether the amount is due.

In a number of earlier decisions, -this court always gave effect to the service of the attested account, and no account in these decisions is taken of the fact that the owner did not make service over, as required, on his contractor. We have referred to each of the following decisions. In each decision it appears that the attested account was served on the owner alone. In every one of them, effect was given to the service as made on the owner and although not completed by the owner by handing over a copy to his contractor. Hale vs. Willis, 3 Ann. 507; Allen vs. Wills, 4 Ann. 97; Jorda vs. Gobet, 5 Ann. 431; McBurney vs. Bradbury, 6 Ann. 39; Hogge vs. Taliaferro, 10 Ann. 561; Stewart vs. Christy, 15 Ann. 325.

The rule laid down in these cases was recently followed and another decision was added to the number cited, in which this court said: “Service of the attested account on the parish-as owner subordinated the contractor’s claims thereto.” (Our italics). Pullis vs. Parish of Natchitoches, 51 Ann. 1377.

On rehearing in the last cited ease this point was specially urged and earnestly pressed upon the attention of the court. The rehearing was not granted and -thereby again the view, to which we have just adverted, was affirmed. It remains that one of the decisions of this court is not from all points of view in accord with the cited decisions supra. We do not think that the test, to which the law has been sujected upon the subject, sustains the conclusion arrived at in that decision. It has become manifest that the amount due by the owner should, by all means, be distributed in accordance with the rights of each of the creditors, and this precludes the idea that the owner has the right to pocket the attested account and defeat the purpose of the statute. We must, however, disclaim all intention to overrule entirely Schwartz vs Cronan, 30 Ann. before cited. The decision treats and decides other questions, and in other respects, has withstood the test of time and experience. But as relates to the point now being considered by us. we think that, as an authority, it should be so modified as not to render unavailing all service of an attested account, on the ground that the owner has chosen not to perform the part which the law lays down as his duty.

We will say, in passing, that we do not consider that the laws regarding owners, builders, workmen and material men, in force prior to the adoption of the Statute 180 of 1894, have been repealed by that statute.

This last statute only enlarges the security. It is supplementary and not a repealing statute, except in so far as prior laws conflict with it. There is nothing about this statute indicating that it was the intention to repeal a general law upon the subject. The last statute (180 of 1894) applies only in cities designated by the number of its inhabitants and contracts over a stated amount. If the statute just cited were a repealing statute, it would replace the old law only in part and leave but scant protection to workmen and material men in cities of less than ten thousand inhabitants, and in matter of contracts involving less than one thousand dollars. In our view, the old law, in so far as it does not conflict with the statute in question, is still in force and, under it, creditors may have funds retained in the hands of the owner a sufficient length of time to enable all parties to be heard regarding their rights.

Plaintiff charges that the owner (Neith Lodge) prematurely-advanced to the contractor the sum of three thousand dollars, without the surety’s knowledge or consent, and that this money was not applied by the contractor in the-payment of debts due on the building.

This amount was deposited in bank subject to the contractor’s check as the work advanced. We are not led to believe that payments were anticipated and claims paid before the amount had been earned by the workmen or material men. It was paid “for labor performed and material owed.” The testimony discloses that it was necessary to meet the claims as they were met, in order to enable the contractor to go on with his work.

The fact that one of the plaintiff’s firm, Vordenbaumen, has signed the contractor, Bartlett’s bond, and has bound himself .to Neith Lodge, owner, for the faithful performance of all of its terms and conditions, gives rise to another issue. Vordenbaumen, in so far as he has an interest, can not recover it adversely to' his obligation as surety on the bond, provided the “Neith Lodge” obligee has not lost its recourse upon this bond. He can not recover an amount which, in certain contingency, he is himself bound. He is, in face of the bond, bound as surety to his firm.

The defendant, owner, asks to have its right reserved to recover on building- contractor’^ bonds signed by one of the plaintiffs as surety. This right will be reserved in our decree.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Appeal is annulled, avoided and reversed; it is further ordered, adjudged and decreed, that the. judgment of the District Court is also annulled, avoided and reversed.

Eor the reasons assigned, judgment is pronounced in favor of plaintiff and against defendant for the sum of three hundred and twenty-nine 65-100 dollars for material furnished, with five per cent, interest from judicial demand which the owner is decreed to pay.

It is further ordered, adjudged and decreed, that the owner’s right to proceed hereafter against principal and surety on their bond is especially reserved, and this judgment is subject to that reservation.

On Application por Rei-iearing.

Breaux, J.

Plaintiffs ask that our decree be corrected because it is for three hundred and twenty-nine 65-100 dollars, while plaintiffs contend that it should be for a larger amount. With reference to plaintiffs’ claim, we quote from page three of their brief: “Their bill amounted to three hundred and twenty-nine 65-100 dollars. On December 20th, 1899, they made out an itemized account of the same, duly attested it, and served it, etc.” Again, on page 20, “that plaintiffs are entitled to a judgment for three hundred and twenty-niné 65-100 dollars against Neith Lodge.” We took the amount as stated by plaintiffs. It did not escape our attention that the judge of the District Court passed upon the claim for an additional amount. While the claim of three hundred and twenty-nine 65-1.00 dollars, which we have allowed, was rejected by the District Court, that court passed upon and decreed another amount due (not included in the three hundred and twenty-nine 65-100 dollars).

When the case was taken up on appeal to the Court of Appeal, there was no question raised about this additional amount. The judgment of the District Court was affirmed. On review, we decided that relators are entitled to the three hundred and twenty-nine 65-100 dollars. That claim alone occupied our attention. We will add the heretofore omitted words to our decree: “In so far as it rejects the demand for three hundred and twenty-nine 68-100 dollars, in other respects the judgment of the District and Court of Appeal remained undisturbed.”

Plaintiffs’ counsel further urges that we should not have reserved any right to the defendant to proceed against the security on the bond. Counsel contends that all recourse on the bond is now prescribed and lost. Be that as it may, we have not passed upon any right nor did we epress recognition of any right ' on the part of the defendants to proceed on the bond. The purpose of the reservation and the intention in regard to all reservation, in the absence of direct expression, is to reserve only such rights as one may have. If he has no right, or if it is subject to prescription, the reservation does not operate prejudicially to the opposing party.

It is, therefore, ordered, adjudged, and decreed, that our original decree be amended by adding the words, “in so far as it rejects the demand for three hundred and twenty-nine dollars and sixty-five cents.” In other respects the judgments of the District Court and of the Court of Appeal remain undisturbed.

It is further ordered, adjudged, and decreed, that plaintiffs do have judgment against the defendant, the Neith Lodge of I. O. O. F., in the sum of three hundred and twenty-nine dollars and sixty-five cents, with legal interest from judicial demand as heretofore decreed.

It is further ordered, adjudged, and decreed, that the said sum is due in solido by said Neith Lodge of I. O. O. F. ánd J. M. Bartlett, and that as to the said Bartlett the amount is already included in the judgment rendered by Judge A. D. Land on the 12th of December, 1900, afterward affirmed on appeal before the Court of Appeal.

It is further ordered, adjudged, and decreed, that as to the additional amount claimed by plaintiff, say one hundred dollars, it is included in the said judgment of December 12th, 1900.

Rehearing refused.


author: Monroe, J. Nicholls, O. J.

text:
    No. 13,460.
    State ex rel. Theodore Cotonio vs. Judge Criminal District Court, Parish of Orleans, Section “B.”
    Syllabus.
    1. Recorders in New Orleans are authorized to take judicial cognizance of ihc ordinances of the city, and, when they do so, such ordinances need not he offered in evidence for the purposes of prosecutions under them.

      2. But the recorders are not bound to take such notice, and in any case wbu-li is to be appealed, they ought, if so requested by the defendant, to require the prosecution to furnish a copy of the ordinance, to be used for the purpose of the appeal, and should send the same up with the record, since it is a hardship, which ought not to be imposed on the defendant, to furnish such copy, and equally a hardship that his appeal should be dismissed for want of it.
    3. It is, however, incumbent upon the defendant to make his request that the recorder require the prosecution to furnish a copy of the ordinance under which the sentence is imposed, and that he send it up as part of the record of appeal, and if no such request is made, and the appeal goes up without such ordinance, it will be properly dismissed by the appellate court.
    ON APPLICATION for writs of certiorari, manckmius and prohibition.

      Theodore Cotonio, Relator, pro se.

      Bichard Peete and J oseph E. Generelly for Respondent.
   The opinion of the court was delivered by

Monroe, J.

On rehearing by Nicholls, C. J.

Monroe, J. Relator alleges that he was charged, before the Sixth Recorder’s Court of New Orleans, with violating a city ordinance, referred to in the affidavit as “0. O. 3387, O. S., relative to the cleaning of privy vaultsthat he filed certain exceptions and demurrers, which were overruled, and that he was sentenced to pay a fine of twenty-five dollars, or, in default of payment, to imprisonment for thirty days; that he appealed to the-Criminal District Court, and that said tribunal has dismissed his appeal, and refuses to hear and determine the case “because of the failure of the recorder to attach to the transcript of appeal a copy of the city ordinance” that he is charged with having violated, which failure is attributed to him, although, under the law, as appellant, he has nothing to do with the preparation or filing of the transcript. He claims that this action amounts to a denial of justice and of his constitutional right of appeal, and he prays that the District Court be ordered to send up the record and proceedings; that said court, and the Sixth Recorder’s Court, be prohibited from enforcing the sentence imposed upon him; that the judgment of the District Court,

dismissing the appeal be annulled; and that a mandamus issue, directing said court to reinstate the appeal, and to hear “and determine the issues, as presented by the record, and all proceedings had in said suit.”

The respondent, Judge of the Criminal District Court, by way of return, and for cause why the writs prayed for should not issue, has forwarded the original record in the matter of “City of New Orleans vs. Theodore Cotonio,” and has made answer in due form.

From this record and answer, taken together, it appears that, after the appeal had been lodged in the District Court, the defendant and appellant, upon March 10th, 1899, filed a motion to send the transcript back for correction, for the reason, as alleged, that, prior to sentence, he had moved for his discharge, on the ground that the City of New Orleans had failed to offer in evidence the ordinance under which he was prosecuted, and on the further ground, that the testimony did not show whether he was the occupant, owner, or agent of the premises mentioned in the affidavit, which motion and statement did not appear in the transcript, and had been inadvertently omitted. A motion was also filed, on behalf of the city (whether before or after the motion to correct does not appear), to dismiss the appeal, on the ground that the ordinance was not in the record; and both motions were disposed of at the same time — the opinion and decree reading as follows: “The city moves to dismiss this appeal, on the ground that the ordinance is not in the record. The correction of the record, as suggested by the defendant in his motion, can not avail him, since it would not make the ordinance a part of the record. The recorders take judicial cognizance of the municipal ordinances of the city. The motion to dismiss, in accordance with the former ruling of this court, must prevail,” etc. Thereafter, upon application for rehearing, the court ordered the judgment thus rendered set aside, and the “cause remanded to the lower court to be corrected in accordance with the motion to correct transcript of appeal, filed herein, March 10, 1899, if the allegation contained therein be true.”

But, the recorder returned the transcript with an answer in which he denied the truth of the allegation contained in the motion to correct, and insisted that the record showed all that had taken place in the trial before him. Thereafter, the matter was again remanded in order that testimony might be taken upon the issue thus presented; and testimony was taken, and the respondent reached the conclusion that it failed to show that there was any error in the statement of the recorder; and he dismissed the appeal a second time.

In addition to the facts which thus appear, the respondent alleges, in his return, that cases appealed to the Criminal District Court, under Article 139 of the Constitution, are required to be tried “on the record and evidence as made and offered in the lower court;” that the District Court does not take judicial notice of the municipal ordinances, and hence, that the ordinance in question should have been offered in evidence, or annexed to the record, and that the dismissal of the appeal, because of its non-appearance therein, was in conformity to previous rulings of both divisions of said court, which .rulings are well known to the profession. He further alleges that the recorders, upon the other hand,' take judicial notice of the ordinances which they are called on to enforce, and that they are never filed in evidence in trials before them; that this practice has prevailed since time immemorial, and that if relator had any objection to urge, he should have urged it before the recorder, and thus have secured a record, made up in that court, upon which to predicate his claims upon the appeal. He further alleges that the judgment of the recorder “is presumed to be correct, that the burden is on the appellant to show that it is incorrect, and the' duty devolves upon him to bring up such a record, made up in the lower court, as will show its incorrectness;” and that “if he fails to do so, the fault is attributable to him.” That “if it was the duty of the City of New Orleans to file the ordinance in evidence that point should have been contested in the lower court. The recorder should have been given an opportunity of ruling on the point, .then the relator should have reserved his bill.” In conclusion, respondent alleges that: “although, as a matter of law, the Criminal District Court does not take judicial notice of city ordinances, yet, as the recorders do, the judges of the former court simply require the ordinance to be in the record of appeal; whether offered in evidence or merely annexed by the parties. The practice now, is for the appellant to produce a copy of the ordinance, and the recorder, on his request, annexes it. Any other system would require the judges of the Criminal District Court to seek for ordinances at the City Hall, to determine, appeals from the Eecorder’s Courts. This would not only impose difficulties and inconvenience on them, but would compel them to decide such cases, 'on matters de hors the record. The ordinance, when annexed to the record, should be submitted to both the appellant and appellee, or the recorder. This would give an injured party an opportunity of assailing it, and if unassailed, the Criminal District Court presumes it to be authentic.”

It may be further stated that the defendant excepted, or demurred, before the recorder — (1) To the jurisdiction of the court ratione personae; (2) That the affidavit is informal and defective; (3) That, even though a statement of the offense embraced within the ordinance referred to in the affidavit had been made, the ordinance is unreasonable, and ultra vires; (4) That it is not charged that the defendant is either owner, agent or occupant of the premises; (5) That if he is charged as agent, the ordinance is illegal and unconstitutional. The record, however, fails to establish the fact that he invoked any ruling of the recorder upon the question of the production of the ordinance or its inclusion in the record to be sent up to the appellate court.

Opinion.

It appears from the foregoing statement of the case as presented, that the question, whether the ordinance under which the relator was prosecuted should be offered and filed on the trial before the recorder, or whether that official could properly take judicial cognizance of it; and the question as to the manner in which said ordinance should be presented to the appellate court in order to enable that tribunal to consider the relator’s defenses, were not raised in the court of the first instance, and were, therefore, not brought up by the appeal. It further appears that the question presented by relator’s motion, filed in the appellate court, for the correction of the record, related to (he failure of the city to offer the ordinance in evidence, and not to the failure of the recorder to include said ordinance, which had not been offered, in the record sent up by him. And, finally, it appears, from the petition filed herein, that the comxffaint uxion this point is, not that the relator asked that the ordinance should be annexed to the record, for the purposes of the appeal, but, that he had moved for his discharge, because said ordinance had not been offered in evidence, and that his motion had been omitted from said record; and this averment has been negatived, as we have seen, by the evidence taken on the traverse of the recorder’s denial thereof.

It is well settled, 'however, that it is competent for a city court to take judicial notice of a city ordinance. And it is equally well settled that a court of general jurisdiction will not, ordinarily, take such notice. Dillon on Municipal Corporations (4th Ed.) Sec. 413; State vs. Leiber, 11 Iowa, 40. It is also a well recognized principle of jurisprudence, that the presumption, in the appellate court, is in favor of the correctness of the judgment appealed from, and, whilst the plaintiff is bound to make out his case in the court of first instance, the appellant is bound, on the appeal, to show the error of which he complains.

“Every act of a court of competent jurisdiction shall be presumed to have been rightly done, until the contrary appears.” Rice on Evidence, Vol. 1, p. 163.

“The appellant must present a record showing error so clearly as to overthrow every presumption of regularity. He must exclude every presumption in favor of the judgment, arising from omissions in the record, by including all the trial court proceedings, affecting the error alleged. No presumption or inference in favor of the appellant will be made.” Enc. Pl. & Pr., Vol. 11, p. 294.

“The transcript should contain every statement, paper, and document on which the opinion of the court is to be pronounced.” State vs. Daly, 64 Md. 314; Reisenthal vs. Walton, 66 Md. 470.

“The general presumption obtains in all legal proceedings that judicial tribunals and officials act according to law. On appeal, accordingly, from an inferior district tribunal, an appellate court will presume, in review, that it has complied with all the requirements of law, and that its determination rested on facts sufficient to sustain it. * * ' * The burden rests upon the appellant to rebut this presumption. He must show, clearly and affirmatively, from the record itself, facts constituting error in the proceedings below.” Enc. of Pl. & Pr., Vol. 2, pp. 421, 423.

In view of these established propositions, it was to have been expected that the recorder would take judicial notice of the city ordinance under which the relator was prosecuted, and, hence, that it would not be offered in evidence, since one is not bound to prove that of which the court takes judicial notice. It was equally to have been expected, that, upon the appeal, the appellate court, being a State court of general jurisdiction, would not take judicial notice of said ordinance, but would, in its absence from the record; rather presume that the judgment appealed from, and predicated upon such ordinance, was correct.

Eelator claims, however, that, whilst he was appellant, he was not responsible for the correctness of the record sent up by the recorder, but that, by express provision of law, the responsibility of preparing and filing such record devolved on that officer.

The law applicable to the subject, we apprehend, is as follows:

Constitution, Article 189, which confers upon the Criminal District Court appellate jurisdiction of all cases tried before the City Criminal Courts and Recorders’ Courts, and provides that such cases shall bo “appealable on the law and the facts, and shall be tried on the record, and the evidence as made and offered in the lower court.”

Ad No. 128 of 1898, organizing the Criminal District Courts, which provides, Section 13: “That in no case shall the appellant be responsible for any errors, omissions, or oversights, in the record of appeal, The chief clerk, or in his absence, the clerk designated by the judge, shall prepare the record, and shall be responsible for its errors, and omissions, or for any failure faithfully to discharge his duties in relation to it. Any dereliction in this respect shall be punishable as to (?) a contempt, by the appellate court.”

Act No. 81¡. of 1898, amending the city charter with regard to trials before the recorders, which provides that: “In all appealable cases, the testimony shall be taken down verlaiim, but the stenographer’s notes need not be written out unless an appeal is taken, in which case the testimony shall be written out and signed by the recorder, and by him forwarded with the record of (to) the appellate court. No appeal shall be allowed, except when taken on the day of sentence; and in appeals, the procedure shall be, as nearly as possible, the same as in cases of appeals from 'the City Criminal Courts.”

It will be seen from this that the relator’s case was to be tried in the appellate court upon “the record and evidence as made and offered in the lower court.” And that it was the duty of the recorder, in case of appeal, to sign the testimony taken before him, and forward the same, with the record, to said appellate court. And it appears that the recorder discharged this duty. The relator’s trouble arises from the fact that the ordinance under which he was prosecuted was never offered in evidence, and formed no part of the record, and, hence, was not sent up by the recorder. And all that the recorder did having been within his authority, there seems to' be nothing that the appellate court could require him to correct. The case was remanded to enable the relator to have it appear that he had raised the question that the city had not offered the ordinance in evidence. But it could have done him no good to have established that fact, because the recorder was authorized to take judicial notice of the ordinance, and the city was therefore under no obligation to offer it. The relator, however, although afforded an opportunity to traverse the recorder's statement upon the subject, failed to show that he had raised even that question; and he made no attempt' to show, nor does he claim now, that he requested the recorder to annex the ordinance to the record of appeal.

The record, therefore, went up properly, so far as the recorder was concerned, without the ordinance, and, the appellate court, declining to take judicial notice of it, dismissed the appeal. This ruling was in accord with the practice of said court, as we are informed by the return, in which it is said that the precedent was established in 1898, shortly( after the adoption of the Constitution, and has been adhered to since that time, and is well known to the profession. It may also be said to find support in the jurisprudence of this court, since appeals arising in eases under municipal ordinances have frequently been dismissed because of the absence of the ordinances from the transcripts. Hassard vs. Municipality No. 2, 7 Ann. 496; City vs. Boudre, 14 Ann. 303; City vs. Hill, 32 Ann. 1161; City vs. Labatt, 32 Ann. 107; State vs. Tsni Ho, 37 Ann. 50; State vs. Clesi, 44 Ann. 85; State vs. Callac, 45 Ann. 30.

It may be remarked, however, in regard to the eases thus cited, and others, perhaps, which might be cited, that it was not made to appear that the ordinances were missing from the transcripts because the recorders had taken judicial notice of them, or that the appellants had made any efforts, in the trial courts, to have them included in the transcripts of appeal. Otherwise, the rulings might possibly have been different, at least to the extent of giving the appellants the opportunity of eorrectingi or supplementing, such transcripts, and of being heard apon the merits of their eases.

R is true, as we have stated, that the recorders may take judicial notice of municipal ordinances, but they are not obliged to do so, and when, in a given case, by so doing, they subject the defendant, who is prosecuted before them, to the hardship of being compelled, himself, to furnish so important a factor in his conviction, in order that he may obtain a hearing upon his appeal, the custom of taking such judicial notice should be rather honored in the breach than in the observance, or followed with a certain moderation. In speaking of the latitude-which courts allow themselves in matters of this kind, Mr. Stephens says:

“No evidence of any fact of which the Court will take judicial notice need be given by the party alleging its existence, but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person, or to any document or book of reference for his satisfaction, in relation thereof, or. may refuse ' to take judicial notice thereof, unless, and until, the party calling upon him to take such notice, produces such document, or book of reference.” Stephens’ Digest of Evidence, Article 59.

If, then, ignorance of a fact of which he is authorized to taire judicial notice entitles a judge to refuse to take such notice, unless, and until, the party calling on him to do so, furnishes evidence of such fact, we think the circumstances of the ease here presented would equally entitle him to pursue that course, since a defendant ought not to be obliged to furnish to the court the ordinance under which he is prosecuted, nor yet have his appeal dismissed because he has not furnished it, and because the appellate court refuses to take judicial cognizance of it. It has been held in some jurisdictions that “where a conviction is had for a violation of a city ordinance, and an appeal taken to the District Court, the ordinance of the city need not be introduced in evidence. The District Court should take judicial notice of it,” etc. Downing vs. Miltonville, 36 Kansas, 740.

We are of opinion, however, that the needed relief, in this class cf cases, should be found hi a change in the practice of the recorders, and that in a case which is to be appealed, the recorder should, if so requested by the defendant, require those who are conducting the prosecution, to furnish, for the purposes of the appeal, a copy of the ordinance relied on, and should send the same up, as part of the record of appeal, though he need not allow the business of his court to be obstructed by requiring such copy for any other purpose, and may, for all other purposes, take judicial cognizance of such ordinance.

Upon the other hand, when, as in this case, the appellant has made absolutely no effort in the trial court to have the ordinance under which he has been prosecuted produced in the trial court, or sent up to the appellate court, and the proceedings of both courts are perfectly regular, we find ourselves unable to grant relief. The recorder committed no error, under the circumstances, in sending up the record without the ordinance in question, since he had taken judicial notice of it, as it was competent for him to do, and it had not, therefore, been offered in evidence, and the defendant in the case made no demand that it be produced for the purposes of an appeal. Nor was any error committed by the District Court in dismissing the appeal, since it could not have proceeded to decide the case on the merits, without the ordinance, which was not in tlie record, and of which it was not bound to take cognizance.

It is therefore ordered, adjudged, and decreed that the preliminary order issued herein be rescinded, and that the demand of the relator be rejected, and this proceeding dismissed, at his cost.

On Eei-iearing.

Nicholls, O. J.

Eelator, charged with having violated an ordinance of the city of New Orleans, was tried before one of the recorders, found guilty and sentenced. He appealed to the Criminal District Oourt for the parish of Orleans. That court dismissed the appeal, upon a motion to dismiss, filed on behalf of the city. The ground upon which the appeal was dismissed was that appellant had not offered in the recorder’s court, and brought up in the record, a copy of the ordinance, for whose violation he was sentenced. The present application was then made to this court for relief, relator alleging that the District Court should not have dismissed his appeal. In the opinion rendered herein we declared that he was not entitled to relief under the circumstances of this case. Upon his application, we granted a rehearing, not because we thought the District Court would have erred in its ruling, as it did. had the case gone to trial before it, but -to ascertain whether it had not erred in dismissing the appeal in limine, instead of waiting to do so (for want of proper evidence) until after submission. That course would have been the proper one to have been pursued. The record, as brought up, was an exact transcript of the proceedings below. There was, therefore, no fault to be found with the- transcript merely as such. The weakness of appellant’s position before the District Court was not in bringing up an imperfect transcript, but that he had failed to introduce in evidence a copy of the ordinance which he was alleged to have violated, in consequence of which the appellate court was not in a position to pass upon the various grounds for reversal which he had set up. That fact, however, was ascertainable only after the case should have been considered upon the merits. The city of New Orleans and the District Oourt were, therefore, premature in dismissing the appeal in limine, but it is apparent to us that relator’s appeal would ultimately have been dismissed, and properly dismissed, after a trial. Had relator pressed before us on this rehearing the point of practice we have referred to, we probably would have sent the case back for trial on the merits, even though it was apparent that relator would, practically, have derived no benefit therefrom. Eelator has, however, confined himself in this application to insisting that he would be entitled, upon a trial on the merits in the District Court, to have the sentence of the recorder set aside. We see no reason to change our opinion, considering relator’s application for rehearing from that standpoint.

For the reasons assigned, the judgment of this court, heretofore pronounced, must, and it is, hereby declared to remain unaltered.


author: Breaux, L

text:
    No. 13,669.
    State ex rel. Mary G. T. Stempel, Guardian, Etc. vs. City of New Orleans, et als.
    Syllabus.
    1. Tlie proposition that one can not approve the act of an agent in so far as beneficial, and repudiate it in so far as it is not beneficial, is binding even on minors.
    2. The assessment of three years required by statute to be made of unassessed property includes three years preceding the year in which the assessment for the three years is made.
    3. When the tax-payer entirely fails to sustain his suit for the annulment of an assessment, he owes the fee of the attorney employed by the State.
    APPEAL from the Civil District Court, Parish of Orleans— King, J.

      E. Howard McCaleb for Plaintiff, Appellant.

      Francis O. Zacharie for Tax Collector, Defendnat, Appellee.

      E. K. Shirmer for Board of Assessors, Defendants, Appellees.

      Samuel L. Gilmore, Oity Attorney, and Arthur McGuirJc, Assistant Oity Attorney, for Oity of New Orleans, Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, L

Plaintiff seeks to have the assessment of her property for the year 1897 cancelled on the ground that it was not timely assessed, three years having elapsed, relator insists, when reassessment was made.

The property was originally assessed in the name of D. O. JVtcCan. This assessment was annulled by a judgment obtained by the relatrix in June, 1900, as having been made in a wrong name. By supplemental roll filed in the latter part of July, 1900, a reassessment was returned of the property. This roll was deposited and registered in the mortgage office on the third day of August, 1900.

Relatrix and her children, in whose name the property is now assessed, are residents of New York, but they have a regular appointed attorney in Louisiana.

The testimony discloses that the usual notices were issued to this agent of relatrix, that he being absent, they were left with his son who had charge to some extent of relatrix’s business as representative of the chief agent. The son, during the absence of his employer, filed a petition and application for the reduction of the assessment for the year 1897 from eight hundred thousand dollars to five hundred and thirty-one thousand two hundred and fifty dollars, dated July 27th, 1900. The petition was granted and the assessment reduced to about half a million of dollars.

It is admitted that relatrix’s attorney appeared within the delay and objected to the assessment roll for the year 1897 on the ground that the assessment was made more than three years subsequent to the original assessment.

The judge of the District Court pronounced judgment in favor of respondents in the ease here, refusing the mandamus for which the relatrix sued and decreed that attorney for the State Tax Collector is entitled to ten per cent, attorney’s fees on the aggregate amount of the taxes and penalties. From this judgment, relatrix prosecutes this appeal.

We take up for review, in the first place, the objection of the relatrix that the petition for reduction of the assessment for the year 1897 was unauthorized; that the one who presented the petition was neither the guardian nor the agent of the guardian nor the agent of the guardian’s agent. This is sustained by the record to some extent. As a witness, the young man in charge of the agent’s office, in a clear and direct manner, proved that he did not assume to act without authority; that he properly sought, “in the regular course of business that I had to attend to for the estate,” quoting from his testimony, “to protect the property, and I obtained, as before stated, a large reduction of the assessment.”

As an original proposition, as lie did not hold a special power of attorney in writing, it results, perhaps, that his petition and application for the reduction of the assessment, does not of itself operate as an estoppel against these minors.

But we will not discuss that proposition. We do not imagine that the discussion would prove of any consequence in deciding the issues. Of this, however, we feel certain (without special regard to the estoppel before mentioned) the relatrix not having sought to disavow the act of the young representative in so far as it was beneficial, she is not in a position to urge persuasively that she is not bound by his action as far as she may deem that it was not favorable to her interests. In other words, the position in her behalf is somewhat contradictory in this, that relatrix contends that the young man’s verbal agency is binding as to reduction of the assessment, but not binding as an estoppel against her minor children. In those particulars in which she is benefitted, relator accepts as correct the act of the son of her agent in having obtained a reduction of the assessment. It follows that the relatrix having availed herself of the reduction, is not in a situation, in a legal point of view, to question his action on the ground of want of authority to act, in so far as she may think that the services were not to her interest. The maxim qui sentii commodum sentire debet et onus, is altogether unfavorable to relatrix’s contention. Even minors can not avail themselves of part of an act in their behalf and reject another part on the ground that it is against their interests.

The second issue pressed upon our attention by relatrix and to which we pass for decision, grows out of the plea of three years prescription, based upon the fact that the reassessment was made in July, 1900, after the assessment for that year had been made. Had the three years elapsed when the reassessment was made? Was the assessor, in making the reassessment, limited by the terms of the statute to the years 1898, 1899, and 1900 ? This would, if answered in the affirmative, exclude the year 1897 on which the taxes are claimed.

The reassessment was made in 1900.

Regarding the issue now under consideration for decision, it is important to determine when the tax payer was to be considered delinquent under the statutes in force in 1900, for if the tax payer in 1900 was not a delinquent for his taxes, then the taxes due that year are not to be taken into account in determining the years for which a reassessment was proper under the statute. We have to deal only with back taxes. The statute directs assessors to assess property omitted, provided that no back taxes for more than three years shall be assessed against said property. Sec. 11, Stat. 85 of 1888; Sec. 11, Stat. 106 of 1890. The taxes of the current year are not back taxes. They are not to be considered in fixing the time referred to in the statute, that is, the three years back taxes in question.

In seeking to have the year of reassessment considered as one of the back years, appellant points to the fact that the reassessment having been made in 1900 and the assessment for that year having been closed that year was a back tax year; that it follows that the reassessment could not be made for the three years preceding 1900. That is true, if 1900 was a back year, but how can it be thus considered % Although the assessment itself may have been closed, the taxes were not due until October on personal property and later on real estate. The completed assessment does not fix the time, but the date, when the tax became due. Appellant refers to State vs. Sage, 78 N. W. 14, a Minnesota case, iu which it was held that the “statute of limitations does not commence to run until the expiration of the time for the filing of the assessment roll showing delinquent taxes.” Evidently this is sustained by the laws of that State. In this State it is different, because Article 106 of the Constitution provides, “tax liens, mortgages, and privileges, shall lapse in three years from the 31st day of December in the year in which the tax is levied.” A tax is scarcely a back tax before prescription.begins to run.

This brings us to the ten per cent, attorney’s fees of which appellant complains on the ground that Section 56 of the Eevenue Act of 1898 applies ex vi termini only to injunction proceedings, wherein tax collectors are sought to be restrained from the collection of taxes and appellant, in addition, urges that the law making power can not impose a penalty in the nature of a compensation of ten per cent, for attorney’s fees upon a tax payer. And relator further contends that the section of the law refers to injunction. 2. That it does not include services .rendered by the attorney in opposition to the application by way of mandamus to reduce taxes. The following is an excerpt from Section 56 of the Eevenue Act of 1898, “That the attorney at law who represents the tax col - lector, or tax collectors, in all proceedings for the reduction of assessments and collections of taxes and in all injunction proceedings wherein the tax collector or tax collectors are sought to be restrained from the collection of taxes, shall receive a compensation of ten per cent, on the amount collected. Here, the suit is by mandamus and not by injunction. But the commission of ten per cent, is not restricted to proceedings by injunction. It embraces services rendered in the reduction of assessments, and is due whether the proceedings to reduce assessments are by injunction or by mandamus. Here the proceedings were brough t for the reduction of the taxes claimed. The purpose is reduction by limiting the years, as claimed by appellant. It is an action for reduction of assessment. An assessment for one year may be reduced in different ways. The assessment for a series of years may be reduced by excluding one or more years from the series. Beisdes, mandamus here is the alter ego of injunction and raises issues relating to assessment and collection of taxes as far reaching as can be raised by injunction. There is as much necessity for services of counsel as there is in defending an injunction.

The appellant, in the next place, contends that the statute is unconstitutional. This attack upon the statute is not sustained. It does not violate any .of the limitations of the Constitution.

The decision in Gulf C. & S. F. R. R. Co. vs. Ellis, 165 U. S. 150, has no bearing upon the issue here. The rule laid down in the cited decision was directed against legislation usually referred to as class legislation The statute declared unconstitutional had for its purpose to award fees of counsel to those who had claims of a particular kind against railroads, it was class legislation. Here there is nothing of the sort. The statute attacked in this case is general. The State imposes upon the litigant the burden of paying the fee of the attorney when the tax payer resorts to the courts and fails there in his demand.

The statute is general in term and scope.

The judgment appealed from is affirmed.

On application for rehearing, application to amend judgment denied and rehearing refused.