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

text:
    No. 10,464.
    Succession of Adam Thompson.
    The validity oí an w parte order oí sale in a succession proceeding, by an executrix, to pay debts, may be assailed by rule*.
    A probate court "which lias not acquired jurisdiction over mortgaged pi*oi>erly by an omission, or commission or laches oí tlio mortgage creditor, whose contract contains the pact de non alienando has no authority to order the sale of the property affected to him on terms different from those which he is entitled to fix and which injuriously affect his rights.
    A mortgage creditor, under such pact, who applies for executory process shortly after the maturity of his claim before the death o£ his debtor, and within thirty days after the opening* of the succession, is not dilatory and can not be charged with laches, or condonation conferring or recognizing jurisdiction.
    The pact authorizes the creditor to subject the property to the payment of liis claim, without regard of any subsequent alienation or encumbrance of tlio same.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henry O. Miller for Plaintiff and Appellees:
    An executor has no right to apply for an order of sale before thirty days have elapsed since his appointment, and when .such an order is prejudicial to a mortgage creditor of the succession, it should be set aside. Civil (‘ode, Art. L164.
    The mortgage creditor, in any case, is entitled to notice of any application to sell the mortgaged property. French vs. Prieur, 6th Rob. 299.
    The sale of succession property to pay debts must be for cash, or on terms of credit fixed by the meeting of creditors. There is no power in the court to order such sale on terms of credit, and hence such order should be annulled, especially on the demand of a mortgage creditor, the property mortgaged being part of that ordered to be sold. Code of Practice, Arts. 990, 991: Civil Code, Arts. 1167, 1172, 1178, 1670.
    Indeed, unless the mortgage creditor assents, the mortgaged property can not be sold on terms of credit, even when directed by the meeting of creditors. ('. (’. 1172,1175.
    The mortgage creditor, with the act importing confession of judgment, is entitled, notwithstanding the death of the debtor, to seize and sell unde]* his own writ the mortgaged property, and of this contract right the creditor can not be deprived by a premature and illegal order of sale obtained by the executor. Code of Practice, Arts. 61 to 65; Boguillo vs. Faille, l An., p. 204; MeCalop vs. Fluker, 12 An. Rep., 551; 1st Honnen’s Digest, p. 647, Xo. 3.

      J. G. Gilmore and 8. L. Gilmore for the Executrix, Appellant:
    When an executrix is proceeding regularly with the administration of a succession, and has obtained an order of sale of property of the succession to pay debts, the order of sale will not be set aside on the application of a mortgage creditor seeking executory process, whose debt, as well as the mortgage securing it, has been recognized by the executrix, and the property subject to it embraced in the order of sale.
    Nor will a creditor be admitted to attack or stop or vacate a sale ordered by a Probate Court by collateral proceedings .by rule and without affidavit and bond for injunction. Porter vs. Ulbrere, 84 An. 875; Poutz vs. Kistes, 15 An. 686; Wisdom vs. Buckner, 31 An. 57; Succession of Townsend, 37 An. 114.
    Executory process will not issue where the probate jurisdiction has already decreed the sale of the property to pay the mortgage. Where the Probate Court has custody of the property, its jurisdiction extends to tlio mortgage and all its incidents. Borens vs. Boutto, 31 An. 116; Damorere vs. Cox, 32 An.249; Wiswall vs. Sampson, 14 How. 52; Heidritter vs. Elizabeth Oil Company, 112 D S. 303, and cases above cited.
    Executory process is not a real action in the sense of Art. 988, Code of Practice, . hut an auxiliary remedy or form of execution attached to the collection of an ordinary debt, and confers jurisdiction only as incidental to the original obll- ' gation, when the obligation has not been involved via ordinaria or by decree in probate or in insolvency or chancery administration. Bell vs. R. R. Co., 34 An. Y94, citing 14 Wall., p. 66; Code of Practice, Arts. 732, 745; Wisdom vs. Buckner* 31 An. 57, 142; City vs. Savings Institution, 32 An. 530.
    A mortgage does not operate a divestiture of title or ownership, and consequently confers no real right entitling the holder to remove or rovendieate property in custodia legis. Code of Practice, Arts. 12,738; ¡Miller vs. Khotwell, 38 An, 890.

      The restrictions against tlio sale of the immovables of a succession within thirty days from the completion of the inventories are in the interest of the residuary heirs, or the ONoeutrhx, to enable her to ascertain the situation of the estate and its debts, and can not be invoiced by a mortgage creditor proceeding for a sale m his own behalf, liev. (\ (lode, Arts. 1062, 2414; Code of Practice, Arts. OHO, 982,1031.
    Where in-ojicrty is conceded to belong to the succession, the fact that the order of sale is granted before the inventory is completed will not be material in the said order, nor will a sale on credit be ground of nullity of said order as to a mortgage creditor on one of the properties, or incurable in said order where jurisdiction has been acquired. Utile per imitile- nou vitiulur. Poutz vs. Pistes, 13 An. 637; Wisdom vs. Buckner, 31 An., p. 55,58: Succession of Lacroix, 30 An. 924.
   The opinion of the court was delivered by

Bermudez, O. J.

The question presented is simply: whether an order of sale procured by an executrix to pay debts can be rescinded on a rule, at the instance of a first mortgage creditor who claims to be aggrieved thereby and who seasonably asserts the right to proceed via exeeutira, under his mortgage contract, which contains the clause de non alienando.

Adam Thompson died on August 8, 1889. His executrix qualified on the 14th, following. Three days after she prayed for an inventory, and on the 20th following, procured an ex parte order of sale of all the property belonging to the succession, the movables, cash and the immovables, part cash and part on credit, one and two years, including real estate, on which the Louisiana National Bank had a mortgage to secure a claim of §15,700, the act containing the pact de non alienando; of this claim $6,200 had matured on June 17, 1889, and $9,500 on July 5, 1889.

On August 30, the bank took a rule to rescind the order of sale obtained by the executrix, on the ground that it had'been made without notice to it, previous to the return of the inventory, before thirty days had elapsed since her appointment; that it directs the sale to be made part cash and part on credit; that it subjects the sale to the inventory appraisement.

The executrix excepted to the pi’oceedings by rule, averring that the order attacked can not be assailed unless by petition and citation in nullity or by appeal.

Before the return day of the rule to rescind, the bank filed a petition for executory process, annexing the notes and a copy of the act of mortgage.

On the return day (September 3), after hearing, the court overruled the exceptions and made the rule absolute, rescinding the order of sale obtained by the executrix. On the same day an order for ex-ecutory process was signed by the judge.

The executrix appeals from the decree setting aside the order of sale obtained by her to pay debts.

I.

The bank had a right to proceed by rule to annul the ex parte order of sale. The attack was not collateral, but direct. It was not leveled against any final or definitive judgment, but against an interlocutory decree, which the court might proprio motu have vacated. Such orders can be summarily undone, while final judgments may be annulled only by ordinary proceedings terminating by a definitive judgment. C. P. 604.

The rulings to which the appellant refers have no bearing. They were made in cases in which collateral attacks had been attempted, or executory process had been assailed summarily.

II.

It has been held that mortgage creditors of a succession are entitled to notice of an application made by an executor to sell the property on which their mortgage exists. French vs. Prieur, 6 R. 299. Particularly when the mortgage ranks first on the property, and the mortgage creditor complains before the day of sale. It may be different if he allow the property to be .sold.

It appears that the order of sale was made six days after the appointment of the executrix and more than a month before the return of the inventory into the court; but on these irregularities it is unnecessary to pass, however true it may be, that, before a court should order a sale of the immovable property of a succession, it should wait for the return of the inventory to know what are the assets of the succession, and until thirty days have elapsed since the appointment of an executrix, who in this regard may be assimilated to an administratrix or to a curatrix and is governed by the will and the law, while the other officials are governed by the law alone.

The rights and privileges which an act of mortgage duly recorded, containing the pact de non alienando, as does that in the instant case, secures to the creditor are important.

Under it he has the right to proceed at the maturity and non-payment of his claim against the property in whatsoever hands found, even against a succession; he can have it seized and sold free from any subsequent encumbrance and the sheriff and he are entitled to retain the price without giving security should he purchase, or to receive from it the amount accruing to him on his claim, without delay.

Were the order of sale obtained and the executrix not obstructed, it would deprive the mortgage creditor of the right to proceed via executiva and have the property sold for cash and without appraisement by the sheriff, all appraisement having been waived by the mortgagor in this case, and in case of purchase he would not have the right to retain the price without giving security.

The proceeds of sale, cash and notes, would go into the hands of the executrix of the deceased, who could not make any distribution of funds unless after the rendition and final homologation of an account and tableau; thus putting the creditor to avoidable delay.

While there exists no doubt that, as a rule, all the property which a person dies owning becomes subject to the jurisdiction of the Probate Court for the benefit of creditors and heirs, it is equally true, that such jurisdiction is not so absolute as to strip the mortgage creditors of the deceased of the right of proceeding summarily against such of said property as may have been affected to them, to satisfy some money claim, unless it is shown that such creditor has directly or indirectly relinquished the same, and has submitted entirely to the probate jurisdiction over the mortgaged property.

Neither can there be any doubt, that, where a creditor fails to apply within reasonable delay for executory process and the Probate Court assumes jurisdiction over the property, and on proper proceed-dings directs the sale, the creditor would be estopped by his laches from subsequently questioning the order of sale, so as to press a claim for executory process against it.

In cases of acquiescement, express or implied, or of laches, his only remedy would be to apply for a modification of the terms of sale, when not cash, if those fixed infringed on his pre-existing right to different conditions.

The cases to which the counsel of appellant refers, show that the creditor, having either formally or inferentially, or by his laches in some way, aquiesced in the probate jurisdiction, he was not permitted afterward, to resort to executory process.

By reference to the act of mortgage, it appears that the bank had the right to have the property sold without appraisement. As the debt was due and exigible the bank could, besides, have had the sale made for cash.

Were the order attacked permitted to be executed, the sale could not take place unless the property was bid upon for at least two-thirds of its appraisement in the inventory, and eyen then the purchaser could not be held to pay in ready money the amount of adjudication, the terms fixed by the court and announced in the advertisements being part cash and part at one and two years.

The bank is not chargeable with any fatal omission or commission, from which it can be inferred that it has consented that the jurisdiction of the probate court should attach, and that the court could direct the sale of the property at the instance of the executrix.

No intervention is shown by the bank in the mortuaria, except to protest, and it does not appear that the bank was dilatory in the revendication of its right to executory process.

The order of sale complained was obtained with unusual irregularity and haste, twelve days after the death of the debtor, more than a month before the return of the inventory, some eight days after the appointment of the executrix, and without notice to the creditor.

The debt due the bank, as holder and pledgee of the notes of the deceased, had matured quite shortly, in June and July, before the death of the debtor, which occurred as stated, early in August.

Praying for executory process, on the 30th of August, in the same month in' which the debtor died, was seasonably enforcing the right to executory proceeding. The creditor could hardly have proved more diligent.

Besides, the pact de non alienando which the contract contains is an important factor in this matter. It secures expressly the mortgagee and any holder of the notes, notwithstanding any transfer or encumbrance of the property by the mortgagor, to his injury, and it relieves him eventually from the vexations of an hypothecary action.

Surely, that which such mortgage creditor would have done, even as against a third possessor, he had the right to do against the mortgagor, or his succession, however represented, for it is clear as daylight that neither his creditors nor his heirs could, by his death, have acquired greater rights, privileges, or immunities, than he himself possessed, and which were cut off by express stipulation in the contract. How then can it be claimed, with any plausibility, that the executrix, by her ex parte action in the matter, could have and has stripped the mortgage creditor of the right of resorting to executory proceedings, when the mortgagor himself, had he lived, could not have done so? A mere statement refutes the pretension.

The mortgage creditor has an interest in having the property sold ■separately from the other property of the succession through the .sheriff, so as to receive the proceeds without unnecessary delay, .avoid succession costs, commission of executrix, auctioneers’ and .attorneys’ fees, etc., and the filing and homologation of an account, or tableau of distribution.

It is clear that, as the bank had the right to require a sale for cash and without appraisement, and had done no act from which it can be deduced that it has abandoned that right, and as the order assailed proposes to sell the property subject to the appraisement and on terms which are not cash, the bank had a right to complain and to .ask a rescission of the order as concerned the property, the more so as it received no notice of the application of .the executrix, which was made and granted altogether ex parte.

It will not do to say that if the terms did not suit the bank it should have intervened and sought a modification of them to cash.

The right of the bank, under the pact de non alienando to proceed via exeeutiva, not having been in any way abandoned, and the petition for executory process having been filed seasonably, must be recognized and enforced.

No case is found in the books presenting the characteristics of the instant one, in which the right of the mortgage creditor, whose contract contained the pact de non alienando, was denied the right to proceed via exeeutiva against a succession under similar circumstances.

Considering that the judgment appealed from rescinds the order of sale only so far as concerns the property mortgaged to the bank, it is affirmed with costs.

Dissenting Opinion.

Watkins, J.

The testamentary executrix obtained a probate order in the mortuoria for the sale of the property of the succession of the deceased, movable and immovable, to pay debts — the immovables to be sold for part cash and part on time.

The bank, as a special mortgage creditor for the sum of $15,000' on a portion of the realty included in the terms of the order, seeks, to have it vacated so that it may at once proceed via exeeutiva against the mortgaged property, and have it sold under an order of sale, which it has already obtained, though subsequently to the granting of the probate order assailed.

The grounds set out by the bank are, viz:

1. The prematurity of the executrix’ application for the probate order.

2. If executed it would divest it of material rights, to its prejudice.

The first ground is clearly untenable, because if fault there was on the part of the executrix in hurriedly making an application for an order of sale, before the completion of the inventories, and within thirty days after confirmation, it was condoned by the like haste of the mortgage creditor, in obtaining an order of seizure and sale afterward.

But, it is submitted, that the delay of thirty days which must elapse after the appointment of a curator, before an order is granted for the sale of immovables of a succession, is for the sole purpose of such curator being able to obtain adequate information “concerning the debts of the succession,” and to determine “ if it be necessary to sell the (immovables) to pay the debts.” R. C. O. 1164.

The only restraint that the law imposes upon the curator is that he “is bound to wait thirty days.” Why is he bound to wait? “In order that he may know * * if it is necessary to sell the immovables, in order to pay debts.” Then, it is merely in aid of the curator’s acquisition of that knowledge that he is required to wait.

If, then, he can obtain the requisite information before the expiration of that delay, there ceases to be a necessity for Mm to longer wait. Such is the case under consideration. Within the thirty days delay, the executrix ascertained the amount and character of the debts of the deceased, and filed a tabular statement of them, on the faith of which she claimed the order of sale. There was no necessity for additional delay.

It is further submitted that this rule does not apply to an order'of §ale of succession property granted on the application of an execu trix, because the Oode provides that “in default of funds sufficient to discharge the debts and legacies of sums of money, the testamentary executor shall cause himself to be authorized by the court to sell the movables, and if they are insufficient, the immovables, to a sufficient amount, to satisfy those debts and legacies.” R. O. O. 1668.

There is no delay fixed in respect to an executor.

On the other ground in my opinion there is no just cause for the revocation of the probate order of sale.

The opinion of the court says that, under the act of mortgage, “the bank had the right to have the property sold without appraisement * * and for cash.”

It follows that the executrix had not the right to have the property sold partly on terms of credit.

But it does not follow that she had no right to have it sold under her order at all. To my mind it is clear that all the bank can require is to have the terms of sale so modified as to conform to the terms of the mortgage. A mortgage is but a security for the payment of a debt — a jus ad rem, and not a jus in re. Wisdom vs. Buckner, 31 An. 57.

The debtor is entitled to absolve himself from the mortgage by paying the debt secured. His executrix has the same right, or to discharge it, as speedily as possible by sale of the mortgaged property.

In case the debtor or his executrix are guilty of delay or laches of any kind in discharging the debt or in making a sale, the right of the creditor to institute legal proceedings springs into existence, and he may procure an order for the seizure and sale of the property specially mortgaged; but' I am not aware of any penalty the law attaches to the exercise of undue haste on the part of either in discharging a debt or in effecting a sale in the effort to discharge it.

I was not apprised of the existence of any doubt of the legal right of a succession representative to procure an order for the sale of all the property of a succession for the purpose of paying acknowledged debts without first procuring the consent of mortgage creditors or giving them prior notice of his intention to apply for an order of sale.

Indeed, the Oode declares that, “if the amount of debts known is such that it is necessary to sell the whole, or a part of the immovable property which belongs to a succession, the curator shall present his petition to the judge who has appointed him to obtain an order for the sale of this property, or of such a part as may be necessary to pay the debts of the succession.” R. O. O. 1165.

The law does. not provide that any notice of an anticipated sale shall be given to mortgage creditors, but it merely provides that “ if the succession be insolvent the curator is bound to apply for an order for a meeting of creditors.” This meeting has for its sole object “ to deliberate on the mpst advantageous manner of selling the effects of the succession.” R. O. C. 1172.

It has no power to control the granting an order of sale at all. To this meeting all creditors, privileged and ordinary, are summoned alike.

The Code provides:

“ If, at the meeting of the creditors thus assembled, the creditors by privilege or mortgage require that the sale of the effects be made for cash, this wish in this respect shall prevail over that of the other creditors.” R. C. C. 1175.

On homologating these proceedings the judge “is bound to order to lie sold for cash so much of the property of the succession as will be sufficient to pay the creditors by privilege or mortgage * * if they require the sale to be thus made.” R. C. C. 1177.

French, Executor, vs. Prieur, Recorder, 6 R. 299, is not authority to the contrary. In that case a rule was taken to have the recorder to have certain mortgage inscriptions canceled, on the ground that certain succession property had been disposed of at public sale, by the register of wills, and that the effect of such sale was to transfer the lien of the creditor to the proceeds and pass the title free of in- ' cumbrances. This the court declined to do, and expressed the opinion that “mortgage creditors have, bylaw, certain rights secured to them in relation to the sale of property belonging to a succession; and it would seem but just that they should have some notice of an application to sell that on which their lien exists, and thereby discharge it.”

Under this state of facts the court seemed to think that a sale of mortgaged property, in a succession, by a register of wills, without notice to the mortgagors, was irregular; but it does not follow that had the sale been made, under an order of court, to pay debts, at the petition of a succession representative, the court would have so held.

Quite the contrary is true; for the court observes, in the same connection, that:

“There can not now be a doubt that a sale of the property composing a succession, legally and regularly made under a judgment of the court of probates, discharges the mortgages on it which may have been given by the deceased. The purchasers take it free, and the court of probate has the power to release them all.”

The record shows that the total debts of the deceased are $63,480, and the appraisement of all properties on the inventory aggregates' $111,827.06 — the value being nearly double the amount of debts. The estate is prima facie solvent, and there was no occasion for the convocation of a meeting of creditors.

The conclusion to my mind is irresistible that the bank has no right that has been impaired by the probate order, except in respect to the terms of sale contained in the act of mortgage. It has no right in law to demand the revocation of the probate order of sale, more especially when it has already procured a subsequent order for the seizure and sale of the mortgaged property. Of course there is no question of its right to thus proceed, if the executrix had riot obtained a prior probate order of sale.

The judge of the proper jurisdiction had the power to grant-cm order of sale. When he granted the probate order of sale, on the application of the executrix, and within the viortuaria, his power to grant an order of seizure and sale was exhausted.

By the former order the property was placed in custodia legis, and consecrated to the mass of creditors of the succession, subject alone to a change, or modification of the terms of sale, so as to conform to the acts of mortgage of any or all the mortgage creditors.

The identical question litigated here was squarely decided in Poutz vs. Bistes, 15 An. 606. The plaintiff had procured an order of seizure of certain mortgaged property subsequent in date to a probate order of sale granted in the viortuaria embracing the same property. The ■ court said:

“The plaintiff, after the Second District Court had issued its order of sale, ought to have applied to that court for a modification of the terms of sale, if he was not satisfied with the same. Any other rule would produce unnecessary embarrassment.”

Under similar circumstances this court, in Morere vs. Preston, 34 An. 873, maintained a probate order of sale in the succession of Porter, and reversed a judgment sustaining an injunction of a mortgage creditor, who had begun executory proceedings against certain mortgaged property in the succession, four years before, and the-only defect in which was the want of notice to the proper parties.

The court said:

“ The consequence is, that as to the creditors of C. O. Porter,, represented by the administrator of his succession, the property ordered to be sold was not in custodia legis, and that the probate court, having acquired jurisdiction over it before any seizure had been effected, the order of sale was improperly rendered. 15 An-636, Poutz vs. Bistes.”

Walmsley vs. Levy, 36 An. 226, is to the same effect.

Under quite similar circumstances, our predecessors said, in Tertrou vs. Comeau, 28 An. 633, of an injunction that was sued out by a mortgage creditor for the purpose of restraining a sale of succession property, on the identical grounds laid in opponent’s rule:

“It was the duty of the administrator to have the property sold, if the estate was in debt, and that fact is shown by plaintiff, who claims-to be a creditor in a sum exceeding |16,000.

“The order of sale was necessarily ex parte, and we can see no injury which can befall the plaintiff by the sale of the property. Indeed, we do not see how else he could be paid.”

In the case of Wells vs. Wells, 25 An. 194, an additional and stronger reason is assigned by the court why the probate order should be maintained. They say:

“ It is sufficient to say that a mortgage creditor has no right to enjoin a sale for want of notice of the application therefor, when the sale was ordered to pay creditors having a higher rank, or a preference-over the mortgage creditor. In this succession it has been decided that the debts for the services of attorneys and the commissions of the executor should be paid by preference over the deceased.” To the same effect are Succession of Whitehorn, 3 An. 396; Succession of Lauer, 18 An. 721; Succession of Patrick, 24 An. 154; Succession: of Tobor, 33 An. 343.

In this succession there appears one debt in addition to. such as are enumerated in the opinion cited, of over ?4,000 for taxes, which certainly prime the mortgage of the bank pro tanto. Such privileges extend to movables and immovables alike, and which, for want off sufficient movable property, must be paid from the proceedsmff the. 'immovables, and by preference over mortgages. R. O. C. 3,252 3353, 3366, 3369.

This must be done in the mortuaria, on a tableau of distribution, and on a judgment of court. R. C. O. 1181. How can that be done if the executrix has not the possession of the funds for distribution?

The rights of the bank will be perfectly protected by requiring the executrix to furnish security, and if there be a likelihood of the property being sold at a sacrifice, it can buy on its own account, and hold the proceeds on furnishing proper security to the succession.

The opinion lays stress on the fact that the bank’s mortgage contains the pact de non alienando. Its effect is solely to prevent the mortgagor from making a conventional sale of the mortgaged property, to the prejudice of the mortgagee’s rights. In this case, no .such sale has been made, and the existence of the pact does not affect ■this case in the least.

There is, in my opinion, no question of diligence or laches in the case. If there was, the fault is certainly with the bank, because its mortgage was executed and the notes of deceased delivered on the 13th of August, 1885, and they became due at twelve months after •date. Hence, when, on the 20th of August, 1889, the probate order of sale was gxanted on the petition of the executrix, they were three years past due, and at any date within that period of time the bank could have procured an order of seizure and sale, had it chosen to do so, but did not.

This court held in Chaffe vs. Parmer, 34 An. 1017, that it was “ an administrator’s duty to obtain the highest price for the property.”

What was the executrix to do, standing as she was in the presence of five special mortgages on five different pieces of real estate of the' succession of the deceased, and aggregating $56,000 in amount?

Should she have waited longer for action by the various mortgagees, •or provoked them to commence five separate executory proceedings against the five mortgaged properties?

Had she done so, it is perfectly manifest that the added burdens of accumulated costs, commissions, attorneys’ fees, advertisements, etc., would have resulted in a ruinous sacrifice of property and pressed the succession to the verge of iñsolvency.

Had she thus waited or proceeded, in my opinion the executrix would have violated her plain legal duty. She is bound, under her •oath to protect the rights of all, whether privileged or ordinary creditors, alike, and endeavor to save something for the heirs. If a different rule obtain and the rule of opponents made absolute, property specially mortgaged will be liberated from administration entirely by succession representatives.

It is with respect I submit that the opinion of the court vacating a probate order of sale of succession property, to make way for an order of seizure and sale in behalf of a mortgage creditor, is a departure from the settled jurisprudence of more than a quarter of a century, and will greatly embarrass the administration of successions in the country parishes. The conservative and salutary rule of stare decisis ought to control. For it has been wisely said: “In order to ■secure certainty and stability in the administration of law, it is a rule of jurisprudence that when a particular construction of a statute has been for a long time acquiesced in, not only by those whose personal and property rights are affected, but by those whose duty it is to execute it, the courts will recognize it as the true construction and enforce it accordingly. ’ ’

To this effect are various authorities: Hawkins & Roberts vs. Bur, 37 An. 55; State vs. Thompson, 10 An. 122; Levy vs. Hetche, 40 An. 500; Ohio Life Insurance Co. vs. Debott, 16 How. 431; Douglass vs. County of Pike, 101 U. S. 677.

For these reasons I deem it my duty to dissent.


source: Caselaw Access Project

author: Poché, J. Fenner, J.

license: Public Domain

text:
    No. 10,422.
    E. J. Barthe vs. Henry Larquié et al.
    ■One not-a'party to a suit in which an injunction has issued, and to whom such injunction is not directed, can not be held in contempt or be punished for the violation of the writ although the act prohibited be illegal in itself.
    A party punished by imprisonment under such circumstances • is illegally condemned, and has a right of action against those at whose instance and for whose benefit the order of imprisonment was made and obtained.
    A PPEAL from the Civil District Court for the Parish of Orleans. JSllis, J.

      Branch K. Miller for Plaintiff and Appellant:
    :1. A person not a party to an injunction suit, nor served with the writ therein issued, can not be in contempt for a violation of the writ. 9 Haw. (N. Y.) Rr. .425 ; 40Hun. (N. Y.) 85; 540.

      2. Article 308 C. P., contemplates violation of injunction by none, except those against whom it is directed.
    3. The failure of a party to prevent by judicial process a wrongful act does not destroy his right to damages caused by it.

      4. Where a court has jurisdiction only on certain conditions, its acts in a given, case, not presenting the required conditions, are unlawful. 25 Kas. 640; 51 111. 100; 66 111. 63; 17 Mich. 473; 7 Cray (Mass.) 59; 4 Neb. 122, 48; American Reporter,. 758 ; 37 Ohio St. 373; 66 N. Y. 370.

      T. J. Semmes & Legendre and Frank N. Butler for Defendants and' Appellees:
    1. In an action for damage for malicious prosecution, want of probable cause and' the existence of malice must both concur to entitle the plaintiff to recover. Pollock on Torts,pages 191,192; Crescent City Live Stock Companyvs. Butchers’' Union Slaughter House Company, 120 U. S. 140.
    2. The sentence of the Recorder is a judicial ascertainment of the existence of probable cause in the prosecution before him, and protects the prosecutor in a suit for damages for malicious prosecution, even though the Recorder’s sentence was subsequently reversed. Crescent City Live Stock Company vs. Butchers’ Union Slaughter House Company, 120 U. S. 140; Nathan Phillips vs. Village of Kalamazoo, 53 Mich. 33; Hahn vs. Schmidt, 64 Cal. 284.
    3. Whenever a competent court issues an order, the party applying for it in good faith is protected thereby in an action for damages for false imprisonment for contempt for violating such order. Bischer vs. Langbein et als., 103 N. Y. 93; Marks vs. Townsend, 97 N. Y. 590; Eberly vs. Rupp, 90 Pa. 261; Coupal vs. Ward, 106 Mass. 289; Mullen vs. Brown, 138 Mass. 114; Williams vs. Smith, 108 Eng. Common Law liep., 621.
    4. No action lies for the prosecution of a civil suit. 49 Maryland, 122; 103 Pa. 110.
    5. No damages being- alleged as a result of the continuance of the injunction in the suit of the City of New Orleans vs. Bernard Barthe, after the decision of the - Supreme Court of Louisiana in that cause in December, 1888, and no attempt on plaintiff’s part to have the said suit dissolved being averred in the petition, the same, on that account, discloses no legal cause of action.
   The opinion of the court was delivered by •

Poché, J.

This is an action in damages in the sum of $15,000, for false imprisonment, the order of which is alleged to have been instigated and procured by the defendants and made for their benefit, Plaintiff appeals from a judgment which dismissed his suit on an exception of no cause of action.

The substantial and pertinent allegations of his petition are to the effect; *

That in the suit entitled the “Oity of New Orleans vs. Bernard Barthe,” an injunction had been issued in July, 1888, prohibiting the defendant therein from carrying on a private market, at No. 149 'Terpsichore street, in this city, on the ground that said market was within the prohibited limits from a public market.

That on the 14th of September, 1888, plaintiff, who was then keeping a private market at the place hereinabove designated, was arrested on a process for contempt of court, by reason of his alleged violation ■of the injunction issued, as hereinabove stated, and that for said reason he was sentenced by the judge of the court whence the injunction had emanated, to imprisonment for the term of ten days, which he served.

He avers that the process resulting in his imprisonment had been maliciously, unlawfully and wantonly procured by the defendants, who were then the lessees of all the public markets of the City of New Orleans, and that said process was obtained and was issued for their special benefit. And he finally charges that being in no way or manner a party to the pending suit, in which the injunction had been sued out, he was not amenable to said writ, and that his imprisonment for contempt thereunder was therefore unwarranted and unlawful.

We have not been favored with a brief on the part of defendants’ counsel, and we have not had the advantage of being furnished with a statement of the reasons which led the District Judge to the decree rendered by him in this case.

We are therefore left to surmise and conjecture in our search for the grounds of law on which the judgment could be rested. And we are constrained to conclude, after a thorough study of the case and an exhaustive examination of the authorities within our reach, that the judgment can find no sanction either in law or in equity.-

The question presented is apparently new in our jurisprudence, in which we find no cases directly in point. , But the judgment which would hold that plaintiff’s petition in this case discloses no cause of .action for damages, involves the proposition that one who has been held in contempt and imprisoned for the violation of an injunction not addressed or directed to, or served on him, and issued in a case to which he is not a party, is without redress under the law, or that the parties on whose instigation and procurement and for whose benefit the process was inaugurated and conducted, can hot in law be held responsible for their acts in the premises.

We hasten to say that we can not subscribe to such a doctrine.

The only authority in our law for the imprisonment of any person as a result of an injunction previously granted, is to be found in Art. 308 of the Code of Practice, which reads:

“If one against whom the injunction is directed violate the same or refuse to obey, the court may either cause to be destroyed whatever may have been done in contravention to the injunction if it be p :acticable, or they may punish him by an imprisonment not exceeding ten days.” * * * (Italics are ours.)

The grant of power from the sovereign to punish in such a case is conditioned in a manner to restrict its exercise toward one against whom the injunction is directed; and courts are clearly powerless to extend such a power by implication or by any other means beyond its well defined limits. All laws in derogation of common rights, and above all, affecting the freedom or liberty of the citizen, must be strictly construed.

It is a fair construction of the writ of injunction issued against Bernard Barthe, that within the meaning of the court the keeping of a private market at No. 149 Terpsicore street was forbidden by the city ordinance then in process of execution; and, that until otherwise decided by the courts, it was illegal for plaintiff in' this case or any one else to open and to attempt to carry on a private market at that place; and it is quite certain that by his attempt in the premises, plaintiff E. J. Barthe had become amenable to prosecution and to punishment by fine or imprisonment, under the provisions of the city ordinance.

But how could he be held in contempt and punished for the violation of the process of the court, which was not directed to him?

In the case of the State ex rel. Liversey vs. Judge, 34 An. 741, this court held that an injunction emanating from a court having no power to grant it is an absolute nullity, and that the condemnation of the defendant for contempt falls with the injunction the moment such nullity has been pronounced. A fortiori, must it be apparent that an injunction not directed to a party who is condemned in contempt for its violation, is an absolute nullity quoad the party thus dealt with.

And hence it follows that the condemnation thus pronounced, and the imprisonment thus ordered, are unjustifiable and unwarranted in law. Both áre therefore torts for which the perpetrators thereof are and must be held responsible.

Such responsibility flows from the textual provisions of Art. 2315 cf the Civil Code.

This doctrine has been enforced in our sister States, under the-principles of the common law.

The circumstances and proceedings in the case of Johnson vs. Von Kettler, 66 Ill. Rep., p. 65, are strikingly similar to the case in hand; the decision therein made is of itself ample authority for the views-which we have just announced.

The appellee in that case, together with his wife who was the administratrix of an estate, were imprisoned for contempt in not complying with an order which had been previously entered against theadministratrix, requiring her to pay out a certain sum of money. In an action by the husband for false imprisonment against the party at whose instance the condemnation in contempt had been pronounced, it was held that the defendant was liable in damages for the arrest and imprisonment of the husband, for the reason that he had procured the same, and because the court was without jurisdiction to render an order against the husband, as he was not a party to the mandate previously directed to his wife, the administratrix.

To the contention that the husband was amenable to the order because he administered jointly with his wife, the Supreme Court of Illinois answered:

“ Assuming that the position taken by counsel can be maintained, and that appellee received the assets of the estate in the capacity of administrator, still, it was as indispensable before he could be put in default for non-payment of the claims against the estate, that he should be first required by an order lawfully made to pay such claims-as though he had been the actual administrator.

“ There was, in fact, no order on appellee to pay the claim of the creditor. The only cause specified in the statute in this regard, for which he could be imprisoned, was for the non-compliance with an order of court after the proper demand had been made on him to do so.

“It is difficult to comprehend on what principle a party can be committed for not complying with an order of court when none has been entered against him. The proposition itself is absurd and need not be elaborated. It is not sufficient' that an order was entered against the administratrix. The appellee was no party to that proceeding on the record or otherwise.” See also 14 Ohio State 213, Spice & Son vs. Steinnick; 25 Kansas 640, Hauss vs. Kohler.

The principle under which a party who has procured such a process, or for whose benefit it has been issued, is liable in damages to ■one who has thereby been illegally or unjustly imprisoned, is equally .settled by jurisprudence. Vaughn vs. Congdon, 56 Vermont 111; Cody vs. Adams, 7 Gray (Mass.) 59; Dielh vs. Friester, 37 Ohio State 473; Webber vs. Kinney, 1 March (Ky.) 255; Fenelon vs. Butts, 53 Wisconsin 344; Hallack vs. Doming, 7 Hum. (N. Y.) 52.

We are clearly of the opinion that plaintiff’s petition does disclose a cause of action and that his right to recover damages must be determined by a trial on the merits.

It is therefore ordered, adjudged and decreed that the judgment .appealed from be annulled, avoided and reversed; and it is now ordered that the exception of no cause of action herein interposed by defendants be overruled and dismissed, and that the case be remanded for trial on its merits according to law and to the view herein ■ expressed. Costs of this appeal to be taxed to appellees; all other • costs to abide the final determination of the cause.-

Dissenting Opinion.

Fenner, J.

This is an action for false imprisonment. It clearly .appears on the face of the petition that, though defendants are ■ charged with instigating the proceeding, yet the imprisonment, for which damages are claimed, was effected in execution of a judgment of the Civil District Court, which found plaintiff guilty of a ■ contempt and sentenced him to the punishment.

On this point the petition is unambiguous. I quote the allegations: That “plaintiff was arrested on a process for contempt .of court, which said contempt was treated as consisting in and made of a violation of an injunction issued in a suit against. one Bernard Barthe, .and to which plaintiff was in no respect a party; that under said process petitioner was, by the judge of the Civil District Oourt in which said suit was pending, found guilty of said contempt and for the same sentenced to an imprisonment in the parish prison for the period of ten days.”

Upon these allegations the judge a quo sustained an exception of no cause of action, and, as I think, correctly.

Defendants can not be mulcted in damages for simply submitting to the court the question whether or not the plaintiff had committed .a contempt of its authority. The finding and sentence of the court would be a complete bar to an action for malicious prosecution of a -civil suit, and, I think, it equally bars this suit for false imprisonment.

It is claimed that this finding and order of the court were absolute nullities, because Art. 308 of our Code of Practice only authorizes :punishment for disobedience of an injunction when committed by ■“one against whom the injunction is directed.”

But Art. 131 confers upon courts'the much broader authority to “punish all contempts of their authority” by fine and imprisonment. 'This power is not confined to parties to causes, and I can well conceive that a third person might knowingly and intentionally so act with reference to something prohibited by its injunction as to con•stitute a “contempt of its authority.”

The judgment finding plaintiff guilty of contempt was one within the jurisdiction of the court, rendered on a question which it was bound to determine, which was unappealable, and which has never been annulled or set aside by any appeal to the supervisory jurisdiction of this court.

Its validity can not be questioned collaterally, and it should stand •as valid until set aside by competent authority, as was done in the cases of Liversey and Hero.

But if it were conceded that the judgment was an absolute nullity, .yet having been rendered by a superior court of general jurisdiction, I think it still operates a complete protection to defendants.

It seems to me self-evident, that if the nullity were so absolute that it could not .protect defendants, who merely suggested it, still -less could it avail as a protection to the judge who rendered it and ■ caused it to be executed, and if plaintiff has a case for damages here ..against the defendants, he has a better ease against the learned judge who incarcerated him.

But it is now well settled that while judges of inferior courts, vested only with limited and special jurisdiction, are held answerable at law to all persons injured by their acts in excess of their jurisdiction and power, a contrary rule prevails with reference to the judges of ■superior courts of general jurisdiction.

This distinction was fully considered and enforced by the Federal Supreme Court in the case of Bradley vs. Fisher, 13 Wall. 335, and the reasons on which it is based are well expounded by Mr. Oooley in -his work on Torts, p. 419.

This removes the ease from the operation of the authorities quoted in the majority opinion. In Johnson vs. Kettler, 66 Ill. 63, the judicial order rejected as a protection was rendered by a county court; in Spice vs. Steinruck, 14 Ohio St. 413, by a justice of the peace; in Diehl vs. Friester, 37 id. p. 473, by a probate court. ' These are all,, generally and presumably, inferior courts of limited jurisdiction, and do not fall under the protection granted to courts of general jurisdiction. *

The Civil District Court is a court of the broadest and most general' jurisdiction possible. Under the well settled principles above referred to the orders and decrees rendered by its jndges, in the exercise of judicial power and of jurisdiction, which is invoked by litigants, and which, rightly or wrongly, they decide that it possesses,. form a complete shield against a civil action on account thereof for the judges themselves, for the officers executing the orders, and for the parties invoking them.

It need hardly be said that actions for wrongful issuance of conservatory process rest on absolutely different principles.

For these reasons I dissent from the opinion and decree.


author: Poché, J.

text:
    No. 10,507.
    The State ex rel. City of New Orleans vs. New Orleans and Northeastern Railroad Company.
    The writ of mandamus being a liarsli remedy, to be substituted in extraordinary and clearly specified cases for tlxe ordinary modes of judicial proceeding*, it follows that any legislation havixxg for object the application of such a remedy to matters and things not hitherto included within its scope, should be strictly construed, without extending its effect by implication.
    Heneo Act 188 of 1888, which purports to provide a summary remedy by mandamus ■ to enforce the obligations of certain corporations, with reference to the paving* grading, repairing, reconstructing or care of any street, highway, bridge, cxxlvert, levee, canal, ditch or crossing, can not be construed as extending to an obligation to construct a new levee or embankment.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Francis B. Lee, Assistant Oity Attorney, for the Relator and Appellant : ■
    1. The law regards the application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exceptioxxs or merits. Shaw vs. Howell, 18 An. 195.

      2. The embankment referred to in the latter half of paragraph 2 of Sec. 1 of Ordinance No. 7483, Administration Series, adopted by the Council of the City of New Orleans, December 9,1881, is a levee within the meaning of Sec. 1 of Act No. 133 of the session of the Legislature of this State of the year 1888.
    3. That Act 133 of 1888 covers obligations of corporations to build neio levees, as well as those to reconstruct or repair old ones.

    4. That if such obligations are not expressly, they are impliedly within its provisions, and the object of it being to afford moans of bringing about a satisfactory cure for the evil of a constant and flat refusal on the part of corporations to comply with any of their obligations to municipal corporations, it must be so construed as to afford a full and complete remedy. Poree vs. Bonneval, 6 An. 386: State vs. Poydras, 9 An. 165; Commercial Bank vs. Poster, 5 An. 516; State ox rel. Harper vs. Judge, 12 An. 777; Fox vs. Sloo, 10 An. 11; State ex rel. New Orleans Pacific Railroad Company vs. Nioliolls, 30 An. 982; Civil Code, Art. 18.

      Harry H. Hall for the Respondent and Appellee:
    1. Demurrer lies to a writ of mandamus. Wood on Mandamus, p. 49.
    2. Mandamus does not lie to enforce contractual obligations. 37 An. 591.
    3. Act 133 of 1888 is exceptional remedial legislation and must be construed strictly. Vide. 12 R. 579 ; 8 An. 365;9An.23B; 11 An. 67; 4 It. 357; 12 An. 769; 8 An. 37; 33 An. 68; 1 Minor (Ala.) 23,133, 143, 171; 1 Dudley (tía.) 105, 187, 318 ; 7 Black (Ind.) 556; 2 Ward 461); 1 Clark'(N. 1’.) 98.
   The opinion of the court was delivered by

Poché, J.

The city seeks by mandamus, under the provisions of Act 133 of 1888, to compel the defendant company to construct a certain embankment on the outskirts of the city, in accordance with an ordinance numbered 7483, adopted by the City Council in December,, 1881.

The proceeding was met by a peremptory exception, based on the ground that there is no warrant in law for the application of the writ of mandamus in the case set forth in relator’s petition. The exception was maintained, and relator appeals.

The pivotal allegations of the petition are substantially that under the ordinance herein sought to be enforced, the railroad company obtained certain valuable franchises, among which was the right to occupy for its purposes certain streets of the city and certain embankments constructed within its limits, in consideration of which the said company agreed to continue a pre-existing embankment, so as to extend it on and through a certain thoroughfare known as Florida Walk, from its intersection with Peoples’ Avenue to the Fisherman’s Canal, on the lower limits of the City of New Orleans, and that the company has failed to comply with its obligations in the premises.

The work required of the company is designated in the ordinance •as follows:

“ From the intersection of the embankment of the canal of the People’s Avenue and Lake Pontehartrain, to the intersection of said People’s Avenue Canal embankment with Florida Walk, which said embankment shall be elevated above high water mark, according to lines and levels to be furnished by the City Surveyor, and to be kept in good repair by said company at its expense, with the right to deepen said People’s Avenue Canal, to obtain earth for the said elevation and repairs, and that said company shall continue said embankment along Florida Walk, from the intersection of People's Avenue to the Fisherman’s Canal, lower limits of the City of New Orleans, in •accordance with lines and levels to be furnished by the City Surveyor. ’ ’

The words herein italicized by us are descriptive of the work sought to be enforced, and the specifications of the same, prepared by the City Surveyor, are annexed to and made part of relator’s petition.

Defendant’s contention, under its exception, is that the provisions of Act 133 of 1888 do not contemplate or justify recourse on the part of the city to the writ of mandamus to coerce the company to construct a new embankment or levee as provided for in that portion of the ordinance now under discussion.

On that point the act reads:

That in cases where any corporation has heretofore contracted with, or may hereafter contract with, or shall be otherwise legally ¡bound, to any parish or municipal corporation in this State, with .reference to the paving, grading, repairing, reconstructing or care -.of any street, highway, bridge, culvert, levee, canal, ditch or crossing, and shall fail or neglect to perform said contract or obligation, the said parish or municipal corporation * * shall have the right to proceed by a writ of mandamus to compel the performance of ¡said contract or obligation.” - * * *

The language of the section is not entirely free from ambiguity, •and a proper construction of its true meaning may be facilitated by considering the cause which induced the Legislature to enact it. O. 0., .Arfe. 18.

It is asserted by relator’s counsel, and we believe that the propriety and usefulness of that legislation grew out of the decision of this court in the case of the State ex rel. City of New Orleans vs. the New Orleans and Carrollton Railroad Company. 87 An., p. 589.

In that case the city applied for a writ of mandamus to compel the defendant company to make certain repairs to a street in the city to which it had bound itself by contract.

The writ was refused on the main ground that “the writ of mandamus does not lie to compel corporations to perform obligations arising simply from contract.”

From the leading idea which prompted the act, it is quite apparent that its object was to extend the application of the writ as a remedy for the enforcement of contract obligations against corporations, and thus to supplement the action of such power as indicated by that decision.

The court had said that, from the nature of the writ of mandamus, and under the rules of law then in force, which controlled and restricted its application, it could not be invoked as a remedy to coerce a corporation to comply with its contract obligations, and such was the law up to the enactment of Act 183 of 1888; under its terms such obligations, contractual or otherwise, as are enumerated in the act, may now be enforced by means of the writ of mandamus. But the statute goes no further, and it does not purport to disturb any other judicial construction or exposition of the nature and scope of the writ of mandamus.

In the opinion above referred to, the court took occasion to say, on abundant legal and judicial authority:

“The writ of mandamus is the most arbitrary of all the forms hr which judicial authority is exercised, It shuts out the right of trial by jury. It substitutes for the ordinary and cautious modes of judicial proceeding, an extremely harsh and summary procedure.

“Instead of a mere judgment settling simply the rights of litigants,, and subject to execution by ordinary process, it invokes an arbitrary judicial mandate, to be executed by the judge himself, and disobedience to which is punishable by imprisonment for contempt, or by the-harsh remedy of distringas.

“ It is properly characterized as an extraordinary remedy, only to be applied in extraordinary cases, which law and jurisprudence have carefully defined and subjected to close limitations.” * * *

The language just quoted, which is but an echo of numerous adjudications previously made by this and other courts of the land, •clearly justifies the conclusion that legislation which proposes to extend the application of the writ to cases hitherto not within its reach, is .a law in derogation of common right.

Now jurisprudence has securely consecrated a wise rule of construction of such laws, which has been formulated as follows:

“ It is a principle universally recognized that laws in derogation •of common rights are to be strictly construed and- can not be extended beyond their clear and precise import so as to reach persons, cases or things other than those they legally and specifically embrace. Of this character are those laws which are designed to substitute a mode of procedure in derogation of the ordinary rules of practice.” (Italics are ours). Succession of Irwin, 33 An. 68.

State vs. Schuchardt, 32 An. (not yet reported).

Hence we are not favorably impressed with the suggestion of relator’s -counsel that the statute now under discussion should be liberally construed, so as to hold that the provision which applies the use of the writ of mandamus to coerce a corporation to reconstruct a certain thing or object, necessarily implies the power to use the ¡same remedy to enforce an obligation to construct the same.

It is conceded in this case that the obligation sought to be enforced 'is to construct an embankment which has never existed, and not to .reconstruct an embankment which had once existed, but which had been destroyed or demolished. And the question, as already stated, is to determine whether, under the terms of the statute, the obligation of a corporation, flowing either from a contract or from the effect of law, to construct a new embankment or levee, can be enforced by means of the writ of mandamus.

Embankment, which is the term used in the ordinance, is not synonymous with the term levee, used in the statute.

An embankment is “ an artificial bank or mound of earth.”— (Webster.) It maybe used either exclusively as a roadway or as a railroad bed, or exclusively as a protection from overflow or as both. A levee is an artificial mound of earth intended exclusively as a protection from overflow; every levee is, therefore, an embankment, but every embankment is not a levee. It would, therefore, not be a violent presumption to hold that, in referring to a levee, the reconstruction of which, without delay, could prevent a great disaster from an overflow, the law maker did not contemplate the same hasty necessity in the case of the reconstruction of an embankment used as -a roadway, which would involve only a question of use or conveni- ■ ence. But for the purposes of this discussion, counsel for the defendant consents that the terms may be used as meaning precisely the same thing.

The question therefore recurs, after that concession, which we make only for the sake of argument, as to the application of the remedy under the statute, to coerce the construction of a new levee or embankment.

Every act, as the subject of an obligation which under the .statute can be enforced by mandamus, presupposes the existence of the object or thing to be affected thereby.

It is clear, beyond question, that the word “paving” refers ex•clusively to a street, and that a street not laid out and not in existence can not be paved.

’ Conceding next that the word grading was meant by the law maker to apply to a levee, can a levee not yet constructed or thrown up, be graded? Evidently not. The verb grade is defined to mean “to reduce to a certain degree of ascent and descent, to level and prepare, as ground for placing the rails on a railroad.” — (Webster.)

As applied to a levee the operation of grading would be to reduce the mound of earth, necessarily unshapely and lacking uniformity when first thrown up, to a uniform and prescribed degree of ascent •and descent.

Of course the operation presupposes the existence of the levee or mound of earth; it may be the completion of or the finishing touch to the levee, but it can in no sense be deemed as the construction thereof.

And yet this is the only term in the statute which the city’s counsel can hold up as including the word construction within its meaning. The very reverse is the truth; the proper construction of a levee may include the grading thereof, but surely the grading oí a levee no more includes the construction thereof, than the painting ■of a house includes the construction of the same.

But in thus arguing and contending counsel for relator lose sight ■of the pleadings to which the specifications of the City Surveyor are attached as part thereof.

In that document the surveyor, after directing the mode of constructing the embankment and prescribing its dimensions, proceeds ■¡to direct that “the crown and slopes shall be neatly graded.” Manifestly that officer contemplated that construction, as an independent operation, should precede grading as a finishing touch, and so did the-city’s counsel when they prepared their pleadings. Hence their-present argument must fall of its own weight.

The reasons which induced the law maker to make a distinction in-the application of the writ of mandamus between the obligation to - construct and that to reconstruct a levee are not a subject of necessary consideration in this case.

But several suggest themselves to the legal mind. As the statute was intended to affect the country parishes as well as the City of New Orleans, it occurred to the Legislature that under existing laws-the parishes have no authority touching the construction of levees, a power which is delegated to other functionaries; the duty of the ■ parishes being restricted to the repair, the preservation and protection of already constructed levees. Act 33 of 1879, Sec. 10. It was therefore clear that the parishes need not be clothed with the power ■ to enforce obligations which primarily they could not enter into.. Hence it was deemed sufficient to enable them to enforce only contracts touching the reconstruction of destroyed or damaged levees, for which they had the legal authority to stipulate.

In the reconstruction of a levee the dimensions and other requirements are known in advance, and no question affecting the same could arise between the contracting parties, and hence such a reconstruction was deemed a well defined, indisputable and clear obligation, falling within the well understood scope of the writ of mein— damus, and this would not be the case with a new construction, as. illustrated by this very cause, in which it appears that the dimensions of the contemplated work were ’left to the judgment, discretion and direction of the City Surveyor.

' We therefore conclude that the District Judge committed no error-in maintaining defendant’s exception.

Judgment affirmed.


author: Fenner, J. Bermudez, C. J. Fenner, J. Bermudez, C. J.

text:
    No. 10,425.
    The State ex rel. Gervais Leche, District Attorney, vs. A. C. Fowler.
    A decree overruling a motion to dismiss is interlocutory and is revisadle until: before final adjudication on the merits of the case* and when found erroneous,, can he rescinded. In such event the motion to dismiss revives as res nova.

      Appeals from judgments in oases under the intrusion into office Act must bo made returnable within ton days to the Supreme Court at New Orleans, or at one of its country sessions, immediately following the judgment.
    An appeal taken .in July, returnable to the Supreme Oourt at Now Orleans in November, on the suggestion of the appellant, instead of October, at Shreveport, must be dismissed.
    The rule that where appeals are made returnable at a particular place and on a particular day, and flic appellant suggests improperly the one or the other, or both, applies equally to civil and to criminal cases.
    Where the appellant suggests neither the place nor time, and the. judge shows by an explicit act that he exercised a legal discretion by fixing the place or time, or both, the appellant is entitled to protection, but then only.
    APPEAL from the Twenty-Sixth District Oourt, Parish of Jefferson. Rost, J.

      Walter H. Rogers, Attorney General, and Gervais Leehe, District Attorney, for the Relator and Appellee.

      H. N. Gautier for the Respondent and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The motion is made on the ground that the suit is brought under the intrusion into office Act and involves the right to office; that judgment therein was rendered in July, 1889, and that on motion of appellant the appeal, taken in the same month, was made returnable to the Supreme Oourt at New Orleans, whereas it should have been, returnable to our own next ensuing October term in Shreveport.

Sec. 2604, Revised Statutes, provides that such appeals shall have preference and shall be made returnable to the Supreme Court either in New Orleans or at one of its sessions in the country.”

Sec. 7 of Act 45 of 1870, after providing the terms of the Supreme Oourt for the several parishes and making all appeals from the Parish of Jefferson returnable at New Orleans, says that appeals in cases involving the right to office ‘ ‘ shall be returnable in ten days after judgment,” without fixing the place.

Iii support of the motion to dismiss our decisions in regard to ■criminal appeals under Sec. 4 of Act 80 of 1878 are invoked; but the language of that section is very different from that of the statutes just quoted. It provides that criminal appeals shall be made returnable to the Supreme Court within ten days, wherever the court may be in session on return day.”

Under this mandatory language we held that appeals made returnable elsewhere than at the ensuing session, by appellant’s fault, should be dismissed. State vs. Cloud, 40 An. 618; State vs. Jenkins, 36 An. 865; State vs. Lyon, this day decided.

But the legal provision- here is not similar. While perhaps the spirit of the law suggests and would make it eminently proper that the judge should make it returnable at the next ensuing session of this court, yet the language of the law is not mandatory to that effect and his discretion is not destroyed.

Moreover, in this case, the judge has rendered his own order, separate and apart from the motion of defendant, making the appeal “ returnable to the Supreme Court according to law at New Orleans.” This indicates that the judge considered and construed the law, and even if he committed error, it could not be visited on appellant, under the authority of Dellwood’s case, 33 An. 1229.

The motion to dismiss is overruled.

Bermudez, C. J.

In an informal proceeding the Attorney General, considering that our previous decree herein, overruling the motion to dismiss, is erroneous and still within our control for correction, calls our attention to the fact that the place at which the appeal was made returnable was suggested by the defendant and that the judge in granting the appeal merely followed -the improper suggestion.

The question therefore arises: whether it is in the power of this court, after it has denied a motion to dismiss, to reconsider its ruling and, if found erroneous, such ruling can be rescinded.

The Code of Practice, Art. 537, divides judgments into interlocutory judgments and final judgments.

Interlocutory judgments do not decide on the merits of the case, but are pronounced on preliminary matters in the course of the proceedings ; while definitive or final judgments are such as decide all the points in the controversy between the parties and have the force of res judicata.

A judgment must therefore be interlocutory or definitive. If it is not the one it must be the other.

The motion to dismiss was not designed to obtain a judgment on the merits of the controversy, but merely to procure a ruling on a preliminary matter, which was: whether the court would or not entertain jurisdiction over the merits of the suit for a reason alleged.

The judgment of this court upon it was not a final judgment deciding all the points in controvery between the parties and having the force of res judicata.

If not a definitive judgment, it is an interlocutory judgment and as such is revisable by the court before final adjudication.

It has been settled by frequent rulings that where a court, whether of original or appellate jurisdiction, discovers that an order given by it is erroneous it may itself set it aside without any formal motion. H. D. 330 (3), V38 (9).

This is so true that this court has, in a number of cases, decided that applications for a rehearing, where motions to dismiss appeals had been denied, were irregular, as such applications could be made only where final judgments had been rendered. 34 An. 220, and other cases.

The decree herein made was therefore an interlocutory judgment, .and as such is revisable at any stage previous to definitive judgment. Bunney vs. Ludeling, 41 An. —.

Such interlocutory judgment would not be affected by the lapse of ■judicial days which could not run to make it final, as in cases of definitive judgment.

It remains therefore within the control of the court, which can, even proprio motu, recall it and reconsider the motion, and it is its duty to avoid it where erroneous.

It is true that the ruling was concurred in unanimously, but had the fact of suggestion of the improper place, by the attorney, been more clearly presented, a different conclusion would have been reached.

The next question is whether that decree was or not correctly rendered.

A reference to the reasons assigned in support of it shows that the material fact on which the motion was based, to some important extent, did not fully attract the attention of the court, so as to give it the significant prominence which was claimed for it.

That fact was that the return place, namely, New Orleans, wal suggested by the appellant, instead of Shreveport, and the consequence urged was that as the appellant had misled the judge the appeal ought to be dismissed.

We consider that the correctness of the opinion and decree is questionable and that the same is revisable.

It is therefore ordered that the previous decree denying the motion to dismiss be rescinded and that the. motion be reinstated for reconsideration.

Dissenting Opinion.

Fenner, J.

The motion to dismiss involved nothing but the propriety of the place fixed for the return.

It was duly tried and submitted, and was overruled in an unanimous opinion by the court.

Subsequently the case was fixed, argued and submitted on the merits without a whisper of complaint from any party as to the disposition of the motion to dismiss.

Applications for rehearing on decrees overruling motion to dismiss are not received by the court. Succession of Edwards, 34 An. 220.

Yet, some time after the submission of the cause on the merits an irregular application, suggesting no new matter affecting the main ground of the opinion, was made by the Attorney General, inviting the court to review its ruling on the motion to dismiss.

I think, at this stage of the case, we should have disregarded the application. There is no precedent for reviving a motion to dismiss, based on grounds not affecting the jurisdiction of the court, after it has once been regularly tried and overruled. There are precedents to the contrary. Duncan vs. Duncan, 29 An. 829; Succession of Edwards, 34 An. 219.

Nothing was submitted to us but the merits of the case, which were submitted without reserve and were ripe for decision. I think we were not called upon, either of our own motion or at suggestion of a party, to reconsider grounds for dismissing the appeal which had already been duly considered and overruled. If the appellant had a bad case, affirmance of the judgment would accomplish the same end as dismissing his appeal; if he had a good case, we were not required to go- out of ofir usual way to destroy his appeal. The appellant had the right to suppose that the motion to dismiss was out of the case; if he had not so thought, he might have furnished additional argument against it. As it is, the judgment in his favor is reversed without new notice or hearing accorded to him.

Moreover, I think the original opinion on the motion to dismiss was correct, and I adhere to it.

But if it were wrong, it furnishes to my mind the best of reasons why the appeal should not be dismissed. It is elementary that error in the day or place fixed by the order of -appeal for the return is not ground of dismissal unless attributable to the fault of the appellant. Here the only fault attributed to the appellant is a misconstruction of the law as to the proper place -for return of the appeal, but if the terms of the law are so doubtful that in its first consideration this unanimous court affirmed the construction placed on the law by appellant, surely the error is not such a fault as should defeat the right of appeal.

Finally, the original papers in the case furnished by the Attorney General ¡show that though the motion for appeal presented by appellant’s counsel did suggest New Orleans as the place of return for the appeal, yet the order of appeal fixing that place was written by the judge a quo in his own hand, showing that his discretion was not surprised, but that he deliberately made the appeal so returnaable as complying with his interpretation of the law as expressed in the words “according to law” embodied in his order. This, as it seems to me, makes this point stronger than appeared on the face of the transcript, and stronger than Dellwood’s ease, the application of which authority should save the appeal.

I dissent.

On Motion to Dismiss.

Bermudez, C. J.

The Attorney General moves that the appeal herein be dismissed, on the ground that it was made returnable at the instance of the appellant, at New Orleans, while it ought have been made returnable at Shreveport.

The suit was brought under the intrusion into office Act, and the prayer is that “there be judgment in favor of the State, decreeing that Augustus O. Fowler usurps, intrudes into and unlawfully holds and exercises the office 'of Coroner of the Parish of Jefferson, and he be excluded from said office and for general relief.

There was judgment accordingly after hearing, which was signed on the 11th of July, 1889, the last day of' the term, of the District Court in the Parish of Jefferson.'

On the same day the cast defendant moved in writing “that a suspensive appeal be granted him therefrom to the Supreme Court of this State, returnable according to law, at New Orleans.”

The District Judge, in furtherance of the motion, made the following order: “Let a suspensive appeal be granted the defendant, A. C. Fowler, returnable to the Supreme Court of the State of Louisiana, according to law, at New Orleans, within ten days, on his furnishing bond,” etc.

The Supreme Court was not in session at New Orleans, on the 11th of July, and held a session in October following in Shreveport, where it heard and determined cases.

The transcript of appeal was filed in the clerk’s office at New Orleans, and the motion to dismiss now under consideration, was next-made.

The legislation on the subject of appeals in cases in which the right of office is involved, dates back to 1866, receiving attention in 1868 and in 1870. Sec. —, Act 1866, No. 82; Sec. 18, p. 154; Act of 1868, No. 157, Sec. 17. p. 201; Act of 1870, No. 45, Sec. 7, p. 100.

The spirit and letter of those several acts do not reveal or intimate any intent on the part of the Legislature, that the one should modify the other, but show that they well may coexist. Blended and construed together, they clearly mean, that, in all cases under the intrusion into office Act, appeals must be taken, within ten days, to the Supreme Court, at New Orleans, or at one of its sessions in the country, to be tried by preference.

In State ex rel. Slack vs. Hall, 26 An. 58, from the country, in which the appeal, allowed within ten days after judgment rendered in September, had been made returnable, in New Orleans on the first .Monday of November, the court dismissed the appeal, considering that the policy of the law is to have such cases determined speedily and with the least possible delay and concluding that the requirements of the law must be construed strictly.

It is apparent that the law not only requires that the appeal be made returnable within ten days, but also that it be so made returnable to the Supreme Court either at New Orleans, or at one of its sessions in the country, and that it be tried by preference.

Surely, the object of .the law, which is to oust usurpers from invaded public offices as summarily as legally practicable, would be greatly defeated, if one, declared to be such usurper, by judgment signed in July, could make his appeal returnable in November at New Orleans. He would thereby maintain himself in office in the meantime, when his appeal ought to have been made returnable within the ten days following the signature of the judgment previously, at such place at which the Supreme Court would next be in session.

It has been repeatedly held that where the law makes appeals returnable in a particular manner as to time and place, and the appellant expressly asks that the appeal be made returnable in a different manner, suggesting for instance an improper place, and the order granting the appeal is inadvertently rendered in accord with the prayer, the error thus committed by the court is imputable to the appellant who, as a penalty for misleading the judge, will be ousted from his appeal. The rule has been applied -equally to civil as to-criminal eases. 27 An. 540, 542; 32 An. 692; 35 An. 980; 38 An. 542; 40 An. 618.

There is no doubt that, in the latter class of cases, the judge is vested with a certain discretion in fixing a different place for the return, when in his opinion such a change will conduce to a speedy determination of the appeal, and there is no reason why, in the other class of eases, he may not act In a similar manner, but it is clear that .-in doing so, his action must appear as the result of the exercise of •his own judgment, which must not be based solely on the suggestion of the appellant.

The same spirit which animated the Legislature when it enacted legislation for criminal cases, inspired it when it adopted the intrusion into office Act, providing for the manner in which such appéals should be returned.

That spirit was as well to secure an accused a speedy acquittal or conviction as promptly to hurl intruders from office and to induct lawful claimants into the same, as to quiet the title of legitimate incumbents to the same

Surely it can less be claimed that the judge exercised a discretion in this case when he adopted the improper suggestion of the appellant and assigns no reason whatever for making the appeal returnable at New Orleans instead of at Shreveport, where under the law it ought to have gone.

The ruling in State vs. Dellwood, 33 An. 1229, is no precedent or authority in the present instance, however far it may have gone to extend relief to the appellant, for there the majority of the court concluded that the judge had shown the exercise of legal discretion, as he had said, ‘ ‘ by reason of the law and the foregoing application, the appeal is granted returnable,” etc.

Had the appellant here not gratuitously suggested himself an improper return place, and had the judge, by some ostensible act of his own, shown that he did not rest solely on the suggestion of appellant, but had exercised a legal discretion by fixing the return place, the appellant would have been entitled to relief, but the fact patent on the record is that the judge gave no reason for changing the return place, and rested solely on the suggestion of the appellant, who is therefore at fault.


author: Watkins, J.

text:
    No. 10,472.
    Dominique Lalane vs. Jacob U. Payne et al.
    1. Thu peculiar statutory action authorized by It. C. O. 3547, providing' for the revival of judgments by suit, must not bo confounded with other precepts of the Code on the subject of legal interruption of prescriptions of debts, which aro likewise applicable to judgments.
    2. A judgment in personam against the maker of promissory notes, secured by a special mortgage, and m which there is a recognition of the mortgage and a decree for its enforcement, merges the notes, completely and perfectly, so that thereafter the judgment is the miff evidence of the debt, but not so as to the mortgage. It retains its full force, effect and rank after the judgment as it has before, the judgment only rendering it executory by ordinary/, fa., but not precluding executory proceedings subsequently.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Estilette & Dupré for Plaintiff and Appellee.

      Henry L. Garland, Jr., and Harry H. Hall for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

As the holder of two ’judgments against Widow Galliger, née Amelia Keller, and subsequently Widow Webb, duly recorded and regularly reinscribed, plaintiff institutes this suit against Payne, holder of certain special mortgages against same party, previously recorded, and likewise regularly reinscribed, for the cancellation of same as being null and void.

The ground assigned for this nullity is, that in 1874, Payne sued his^ mortgage notes to judgment, and therein obtained a recognition of Ms special mortgages, and that said notes and mortgages became merged in said judgment, and had, thereafter, no separate existence. That this judgment was recorded in the book of mortgages in 1877, and the mortgage has not been preserved by proper reinscriptions since, and is therefore perempted; and the judgment, not having been revived by suit timely instituted, has become extinguished by prescription.

The facts are briefly as follows, viz :

Plaintiff is the holder of two judicial mortgages against Widow Galliger properly recorded and regularly reinscribed. Payne was the holder of several conventional mortgages against the same debtor, recorded previously, and from time to time likewise regularly reinscribed. In 1874 fhe latter obtained a personal judgment against his debtor on her several promissory notes, and a recognition of his conventional mortgages as securing the payment thereof. This judgment embodies a full and comprehensive statement of the recognized mortgages, as well as a description of the mortgaged property. The judgment was recorded in the book of mortgages in 1877, and that inscription has not been since renewed by proper re-inscription. No suit for the revival of the judgment has been instituted, but various acts, transactions and judicial decrees have, from time to time, otherwise interrupted the current of prescription against it, whereby it has remained in full force and efficacy.

The District Judge was of the opinion and held that the judgment had been kept alive and was in full vigor, but that the mortgage had ceased to have effect as to third persons for want of proper reinscription ; and that the original, special mortgages were merged in the judgment, and thereafter ceased to have any separate existence, and therefore the reinscription of them was without any effect whatever. On the latter question our learned brother expressed himself as entertaining a contrary view, and, in rendering judgment, only yielded Ms convictions to what he deemed to be the weight of supe-rior judicial authority. He carefully stated Ms views as derived from decisions of this court in an elaborate opinion of marked ability, in which numerous adjudicated cases are collated and compared.

As we understand plaintiff’s counsel, his contention is, that, while it is the settled jurisprudence of this court that the prescription of a judgment may be interrupted by other means than a suit to revive, only parties to the record can be affected by such interruption en pais.

The judge a quo gave judgment against defendants, ordering the clerk to cancel the various conflicting and antecedent inscriptions of Payne’s special mortgages, and they have appealed.

I.

On the proposition last referred to, little is necessary to be said. In neither the law nor jurisprudence can we find any sanction for the stated contention of plaintiff’s counsel.

In Succession of Patrick, 80 An. 1071, our predecessors held that “ the peculiar statutory action” authorized by R. O. O. 8547, providing for the revival of judgments by suit, must not be confounded with other precepts of the Oode on the subject of legal interruption of the prescription of debts, which are likewise applicable to judgments. The doctrine announced in that case was affirmed by this court in Calhoun vs. Levy, 83 An. 1296, and in Levy vs. Calhoun, 34 An. 413, as well as in other cases.

Hence we conceive the argument in favor of the binding force of a judgment, the prescription of which has been legally interrupted as to third persons, is just as strong as that of a judgment of revival. Either mode rehabilitates the judgment and keeps it 'alive. If kept alive for one purpose, it is for another.

II.

The main question is, whether a judgment in personam, on the mortgage notes, recognizing and enforcing the mortgage, as against the debtor and mortgagor, operates a merger of the notes and mortgage in the judgment, so as to necessitate the registry of that decree in the book of mortgages, and its subsequent reinscription, in order to preserve the effect of the mortgage as to third persons and other mortgagees. Has a conventional mortgage any separate and independent existence, after the rendition of a judgment via ordinaria recognizing it? Subsequent to the rendition of such judgment, will the reinscription of the original act of conventional mortgage have the effect of preserving its effect and rank as to third persons?

As supporting his judgment, the judge a quo cited the following cases, viz:

McRae vs. Cairns, 2 N. S. 599; Oaky vs. Murphy, 1 An. 372; Smalley vs. His Creditors, 3 An. 388; Bordelais vs. Maugars, 3 An. 375; Hair vs. McDade, 10 An. 534; Railroad Company vs. Thornton, 12 An. 736; Sturgis vs. Sheriff, 14 An. 227; Dennistown vs. Payne, 7 An. 334; Succession of Baily vs. Baily, 12 An. 565.

In all of those cases it was held that a judgment on notes, drafts or other evidences of debt, had the effect, of merging the latter into the former, so that they ceased to evidence the debt altogether, and. the judgment became the sole proof of its existence; but only in the last two of those decisions was it held that mortgages as well as notes ■ were so merged; and in those cases there were no questions of the rank of competing mortgages, or of their appropriate inscription, and reinseription of mortgages, so as to affect third persons with notice. But without any discussion, the court, in those two cases, contented itself with the expression of opinion to the affect that the mortgages as well as the notes become merged in a judgment.

We have frequently held that debts and obligations are not created by judgments of court, but only recognized by them- and rendered executory; that they confer no new rights, only confirm those already in existence. Kinder vs. Lyons, 38 An. 713; Thomas vs. Guilham, 35 An. 927; Succession of Anderson, 38 An. 581.

But we know of no case in which we have held that a mortgage as well as the note secured, was merged in a judgment in personam, recognizing its existence and making it executory.

Counsel for appellee, with perfect confidence, cites us to what our immediate predecessors said on a kindred question, in Watson vs. Bondurant, 30 An. 70, viz:

“If the mortgagee, instead of proceeding via exeeutiva in rem against the property, elects to sue his debtor in personam, and to attempt to enforce his judgment by execution via ordinaria, the pact. de non alienando will not enable him to seize the mortgaged px*opex’ty in the hands of a third possessor claiming the ownership.

“He must exhaust his remedy against property subject to seizure under the writ of fieri facias; and, failing to obtain satisfaction by this means, he can reach the mortgaged pi'operty only .by an action, the regular hypothecary action of our law, against the third possessor. ’ ’

Prom that expression, counsel deduces the conclusion that it was based on the theory that the mortgage was merged in the judgment, and, thereafter, it was not susceptible of separate inforeement, for that reason. But in a more recent ease, which appears to have escaped counsel’s attention, this court held, after deliberate consideration of the question, that a mortgage creditor is entitled to executory process against his mortgagor, or against his transferee of the hypothecated property, notwithstanding the fact he has procured judgment against the mortgagor on the mortgage notes.

The fact,” say the court, “ that he (the mortgagee) had obtained a recognition of his mortgage by judgment against the original debtor, if it did not enlarge, certainly could not diminish, his rights against the third possessor of the thing mortgaged.” Montijo vs. Gordy, 33 An. 1113.

On the original hearing of that case the court maintained and perpetuated an njuncbion restraining the seizure and sale, on the ground that it was “ illegal, null and void and unwarranted by law;” but on the rehearing a contrary opinion was announced. We are, therefore, safe in concluding that it was deliberately expressed, and regard it as being perfectly conclusive against plaintiff’s theory of a judgment merging the mortgage as well as the note it secures.

While it is perfectly true that a judgment does merge and extinguish a note, draft, obligation or other evidence of a debt, it does not follow that it has that effect in respect to mortgages or privileges securing the payment of a debt.

The rank of mortgages and privileges is one of their most essential elements, and necessarily so, because it is that which determines the right of one or more creditors to a priority in receiving payment from the proceeds of the thing on which their respective liens exist. It is for the special purpose of enabling a creditor to preserve the rank of his mortgage and his priority in payment that the Code declares that the inscription must be renewed “in the manner in which it was first made.” R. O. O. 3369.

The rank oh mortgages is determined by the date on which they are first recorded.

R. O. O. 3329. Reinscription maintains their rank in perpetuity. If, then, it be conceded that a judgment merges the mortgage, wliat becomes of its rank? For, if there is a merger, it is complete, and creditors and third persons would have to consult the judgment and not the act of mortgage.

In Miltenberger vs. Dubroca, 34 An. 313, we held the registry of a judgment rendered on a mortgage note to be insufficient as a reinscription of a mortgage, because the judgment did not contain, and when registered did not convey all the necessary information for the purpose of the reinscription.

“ The judgment,” say the court, sufficiently describes the property, but fails to mention the name of the officer who passed the act, or the date of the act, or of its original registry,"or the name of the original mortgagee, or the total amount for which the mortgage was given.” Hart vs. Caffrey, 39 An. 894.

If, in law, the mere rendition of a judgment effected the merger of the mortgage', what difference could there be if such recitals were wanting? But as we held that their absence from the judgment rendered its registry unavailing for the purposes of reinscription, the conclusion is irresistible that the sufficiency of such a reinscription depends solely on the sufficiency of the recital of the judgment and not on its existence. We doubt not that if a judgment contained a full description of the mortgage in every essential particular, its registry would amount to a reinscription — not for the reason that such a judgment was a merger of the mortgage, but because this mode is recognized as an adequate one for the preservation of the mortgage.

It is our opinion that the original mortgage acts continued after the judgment to evidence the mortgagee’s rights, and that same were not merged in the judgment Payne obtained on the mortgage notes, and that the reinscription of those acts was the proper mode of preserving same and had full effect as to the plaintiff.

The judgment appealed from is erroneous and must be reversed.

It is therefore ordered and decreed that the judgment appealed from be and the same is reversed; and it is now further ordered and decreed that plaintiff’s demands be rejected at his costs in both courts.

Justice Fenner recuses himself on the ground of relationship to Payne, defendant.