text:
    No. 10,438.
    Succession of Selina D. Bobb.
    A subsequent will, showing by its whole tenor that, it Was intended to contain all the testamentary dispositions of the deceased, revokes a prior will in so far as it contains dispositions incompatible with those contained in the will last made.
    Parties who claimed, as residuary legatees under the will last made, using a prior will to aid in a construction favorable to themselves, and are defeated in their contention, will be estopped by the decision then rendered from setting up the same claims under the prior will, which they cause to be probated after the decision, and for the purpose of evading its effect.
    A PPEAL from the Civil District Court for the Parish of Orleans. lx Bightor, J.

      Hewry C. Miller, for the Appellees:
    A subsequent will, plainly manifesting that the testatrix intended it to express all her testamentary disposition, revokes a prior will. Civil Code, Art. 1693.
    The decision of this court, that a will docs not constitute residuary legatees, will he followed when a prior will is presented not materially different from the will, the subject of the decision.
    When parties claiming to be residuary legatees elect to stand on a later will of tlie testatrix, using also a prior will to sustain their demand, a decision against them is conclusive, and after failing on the later will they will not he permitted to renew the same demand, based on the prior' will, especially as the prior will was used by them to sustain their interpretation of tlic subsequent will. The judgment of this court that they are not. residuary legatees precludes them from reviving that issue, as they seek to do in this case. See the previous 'decisions of this court: 41 An., 3d number, p. 247; Civil Code, Art. 2286; Shaffer vs. Scudday, 14 An., p. 582.
    Bayne, Denégre <& Bayne, contra:

    “Posterior testaments which do not in an express manner revoke prior ones, annul in the latter only such dispositions therein contained as are incompatible with the new ones or contrary to them, or entirely different.” C. C. 1693, Lyons vs. Fisk, 1 An. Hep. 455; C. C. 1691, Hollingshead vs. Sturgis, 21 An. 452.
    “A judgment in a case in which á cause of action was not set forth, because it had then no existence, can not constitute res acljudicata.” Pasley vs. McConnell, 40 • An. 610; McCaffrey vs. Benson, 40 An. 13.

      “The effect of the judgment is to he determined by tlio condition of matters existing at tlio time,” that is, at the time when it was rendered. Lemonier vs. McClosky, 37 An. Rep. 536: Dennis vs. Gayle, 40 An. 288.
    Tlio will of 11th March, 1884, was admitted to probate after this court had determined that tlio will of December 15 recognized no residuary legatees, and left a part of the estate undisposed of by that will, and tlio controversy now is. under the will subsequently probated, and as to tlio disposition made by it. The plea of res adju<Mcata lias no application to this controversy, which is. between different parties and questions not heretofore discussed. Iluyghe vs. Brinkman,'34 An. 1179; 32 An. 298; Davidson vs. Now Orleans, 82 An. 1249;; 40 An. 13,288, 610.
   The opinion of the court was delivered by

Poché, J.

The question involved in this controversy grows out of the decision of this court in the same succession, reported in the 41st of our Annuals, page 247.

■ In that case the main question under discussion involved the proper distribution of the residuum of the property after the payment of debts and the satisfaction of special legacies, under the will of the deceased, dated December 15, 1884.

On that point the decision of the court was to the effect that the residuum of the estate had not been disposed of by the testatrix, and that it should go to her heirs-at-law in equal shares.

On the part of Mrs. Josephine Hamilton and of Mrs. Lucie E. • Roder, it was there contended that under a proper construction of the will they had been instituted residuary legatees, and that as such they were entitled to the residuum of the succession.

Subsequently to the rendition of our judgment, the same parties opposed the distribution of said residuum by the execute?.’ under the terms of our decree, on the ground that by the dispositions of a will of the deceased, of date March 11, 1884, which they had in the meantime caused to be probated, they were entitled, as residuary legatees, to the balance of the funds in the hands of the executor.

Their opposition was met by Mrs. A. H. Crictton, one of the four heirs-at-law of the deceased, by;

1. An exception of estoppel by res judicata; 2. In the alternative, the defence that the will of the 11th of March, 1884, in so far as it tended to institute residuary legatees, had been revoked by the will of December 15, 1884, which had been probated, and had been recognized by opponents themselves as the only and last will of the deceased, and which contained no such disposition.

Opponents prosecute this appeal from a judgment which dismissed their oppositions.

I.

By agreement between the parties the record of the case previously decided by this court is made part of the transcript in the present controversy.

From that record it appears that the will of March 11, 1884, was offered in evidence in the previous case, and in argument here, both in brief and orally, certain dispositions in that will were held up by opponent’s counsel as indicating the intention of the testatrix to institute the then, and the present, opponents as her residuary legatees. And in determining the issue then tendered, the court considered together the clauses in the two wills which were set up by opponents as containing the intention of making a testamentary disposition of the whole estate.

It was conceded on all sides,, and it was considered by the court, that the clause of the will of December 15, 1884, which was the main subject of discussion in our opinion, was somewhat ambiguous, and hence the court was invited and requested by opponents’ counsel to invoke the meaning of the corresponding clause in the will of March 11, 1884, as a guide to properly interpret the will of the testatrix touching the residuum of her estate.

The argument was so pointed and strenuous that any doubt on the subject, resulting from the language used in the will of December, would be quickly dispelled by reference to the corresponding clause in the will of March, 1884.

Referring to that clause, opponents’ counsel said in their brief: “This language is, to our minds, clear and in accord with the construction given by the court (a qua). The other wills made by Mrs. Bobb, one made during the same year, and the other made a year before, substantially agree with the will probated.” * *

Now, this assertion is either true in law and in fact, or the corresponding clauses in the wills of March, and of December, 1884, clashed with each other on the subject of the residuum of the estate. As stated, both wills were before the court, and both were construed in the decision of the mooted question. If the clauses of the respective wills agree on the subject, the decision of the court must be construed as holding that the residuum was not disposed of by either will. If they clashed, and were therefore incompatible or entirely different, the decision of the court must be construed as meaning that the disposition in the prior will had been revoked by the disposition on the same subject contained in the “posterior testament.” O. O. 1693.

And it is clear that under either horn of the dilemma, the present opponents, who were opponents there, contending for the same relief, invoked under the posterior testament, propped and supported by an invoked construction of the prior will, must be estopped from again presenting the identical issue for judicial determination.

II.

It is true that in its opinion the court makes no reference to the' prior will, and restricts the discussion to the posterior or last testament, but the record shows that both wills were before the court, and ■the fact is that in dealing exclusively with the will of December 15, -1884, the court considered that as the sole will of the deceased, and that from its whole tenor as compared with the previous wills, it appeared clearly to have been intended by the testatrix to have been made in lieu, and to have been substituted in the place, of all other and prior wills made by her, all of which had been thus and thereby revoked and annulled.

We are satisfied from an inspection of all the proceedings had in this succession, and from a comparison of the various wills with each other, that such is the case, and that such was the understanding of all parties from the incipiency of the differences and troubles which -have grown out of this succession. Hence it was that these opponents, while they offered the prior wills in evidence in the first suit, and ■sought to fortify their position, by means of such wills as guides for ■construction of the last will, never thought of seeking to probate the will of March 11, 1884, until they had reaped all the advantages of ■special legacies from the posterior testament, and until it had been .judicially determined that they could not, in addition, be recognized as residuary legatees under its terms.

We therefore conclude that their oppositions were properly dismissed.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 10,377.
    Bernard Barthe vs. City of New Orleans et als.
    In an action for damages for a malicious prosecution, an exception of no cause of action will foe maintained if it appears from plaintiff’s own petition, and from the judgment set up as his acquittal, that the prosecution was 'not actuated by ■malice or without probable cause.

      But if, in the same petition, the pleader cumulates a demand for damages against the same parties for an injunction alleged to liaye been wrongfully obtained, he discloses a cause of action by alleging that the plaintiff in injunction had voluntarily abandoned his writ and had discontinued his action.
    The voluntary abandonment of an injunction has the same, legal effect as a judgment rendered contradictorily, and decreeing the injunction to have been wrongfully obtained.
    A PPEAL from the Civil District Court for the Parish of Orleans. il King, J.

      Branch K. Miller for Plaintiff and Appellant,

      T. MeO. Hyman, Assistant City Attorney, for Defendants, and Appellees.

      T. J, Bemmes & Legendre and Frank H. Butler for H, Larquié and others, Defendants and Appellees.
   Tne opinion of the court was delivered by

Poché, J.

In a suit for ten thousand dollars damages against the City of New Orleans, Henry Larquié, John Triseoni, and Pierre Ader in solido, for alleged false imprisonment and malicious prosecution of plaintiff as keeper of a private market, his action was dismissed on the ground that his petition disclosed no cause of action.

Hence, the only question which this appeal presents is one of law or of pleading. His-petition sets forth two distinct complaints. One of his grounds is,- that he was prosecuted before a recorder and sentenced by the latter to pay numerous fines for the repeated violation of the city ordinance which prohibits private markets within a radius of six squares from a public market.

He then avers that on appeal to this court the several-judgments rendered against him by the recorder were reversed and set aside, on the ground that his private market was not situated within the prohibited distance under a proper construction of the city ordinance therein sought to be enforced.

He charges that the numerous affidavits made against him were so made under the special authorization and direction of the Mayor, therein acting at the instigation and in the interest of the other defendants, who were then .the .lessees of all the public markets of the City of New Orleans,

His other ground oí complaint is, that while the various prosecutions above mentioned were being pressed against him, the City of New Orleans, still acting at the instigation and in the interest of the aforesaid lessees of the public markets, sued out and obtained an injunction, under date of July 28, 1888, restraining him from carrying on his private market at a certain designated place, on the ground that the same was within six squares of a public market. And that, notwithstanding the decision of this court by which it had been settled that his market was not within the prohibited distance, which ■decision became final on January 7, 1889, and had been rendered on December 17, 1888, the injunction thus obtained against him was maintained in force until February 15, 1889, when the city discontinued its suit.

Plaintiff finally charges that during the pendency of the injunction proceedings, a rule was taken against him by the defendants for an alleged disobedience of the injunction aforesaid, in consequence of which he was sentenced to imprisonment for ten days, and actually incarcerated for six days, for all of which he claims damages in the sum of ten thousand dollars.

I.

In testing the sufficiency of the pleadings in an action for damages .growing out of the prosecution of Barthe for a fine or imprisonment before the recorder, we find it settled in jurisprudence that malice •and want of probable cause in the instigators of the prosecution are •essential averments.

Those allegations are contained in plaintiff's petition, but in •averring the termination of the prosecution in his favor, he refers to the decision rendered in the case in his favor by this court, which is reported in the 41st Annuals, page 46.

. Turning to that case we find that the pivotal issue on which the cause was tried was as to the mode of measuring the distance within which the city ordinance prohibited private markets from a public market.

On the part of the city and of the lessees of the public markets, the contention was that the distance should be measured on an air line, whereas Barthe, the defendant therein, and plaintiff here, con- ' tended that the distance was to be measured by the route which persons would walk.

His contention prevailed and the case went in his favor.

But the point under discussion involved a difference of opinion based on a nice distinction, and the error found against the city and the market lessees, did not implicate them with malice, or prove' that they had no probable cause for the prosecutions which they had instigated against Barthe, as an offender under the city ordinance, as they erroneously, but honestly, construed it.

The fact, as shown by that decision, that the _ members of this court, entirely disinterested, divided on the question, is a very significant suggestion that the prosecutors, like the dissenting justices, were not actuated by malice, or acted in the matter of the prosecution without probable cause.

In the case of Godfrey vs. Soniat, 33 An., page 915, the defendants were sued in damages for a malicious prosecution. It was in proof that Godfrey had been acquitted of the charge brought against him, and his contention was that his discharge was proof of malice and of want of probable cause, but this court held otherwise, and ruled that all the circumstances under which the charge had been made should be considered in determining the issue of malice vel non.

In that case the following rule was announced:

“The mere fact that the accused, under a criminal prosecution, has been acquitted, does not entitle him to damages against the prosecutor; and he should recover none, when the evidence shows that there was a probable cause for the prosecution, and no malice on the' part of the prosecutor.”

And in the case of Plassan vs. Lottery Company, 34 An. 246, in which the decision of the court hinged upon similar pleadings and' circumstances, the rule was affirmed in the following language:

“In a suit for damages for malicious prosecution, the presumption of want of probable cause flowing from the acquittal or discharge, on preliminary examination, of the accused can be successfully rebutted by evidence showing that the party provoking the prosecution acted on information reasonably calculated to cause and lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion of the guilt of the party accused.”

For the purposes of this discussion, it is fair and proper to consider the decision invoked by plaintiff, as his allegation of the termination of the prosecution in his favor, as forming part of his pleadings. And from that decision, as one of his allegations, flows the conclusion that the prosecution is not alleged to have been actuated by malice or instigated without probable cause. Hence we hold that the complaint on that branch of the case is deficient and that it can not be the legal basis of a claim for damages.

II.

But the same principle does not apply to or control that part of the demand which is predicated on the damages alleged to flow from the wrongful issuance of the injunction against Barthe.

The pivotal allegation on that branch of the pleadings is that the injunction obtained by the city and its abettors was voluntarily abandoned, and its suit discontinued on its own motion.

On that score the rule is firmly imbedded in our jurisprudence to the effect that, “the dissolution of an injunction is prima facie evidence that damages have been sustained” by the defendant in injunction. Florence vs. Nixon, 3 La. 289; Hudson vs. Plunkett, 4 La. 524; Whitehead vs. Tulane et al., 11 An. 302.

In the latter case the ruling was as follows:

“In an injunction suit, where there is judgment of non-suit on the plaintiff’s being called and not appearing, the injunction bond is forfeited.”

In the case of Conery vs. Goons, 33 An. 372, the following rule was adopted.

“The dissolution of an injunction is prima facie evidence of an injury sustained by the party enjoined, and entitles him to actual damages.” See also Barrymore vs. McFeely, 32 An. 1179; Découx vs. Lieux, 33 An. 392; Estopinal vs. Peyroux, 37 An. 477; Wentz vs. Bernard, 37 An. 636; Canal Company vs. Fouché, 38 An. 388.

In the last case just quoted the rule was formulated thus:

1 ‘ The dismissal of an injunction suit on an exception is equivalent in law to a judgment decreeing the injunction to have been wrongfully obtained.”

“An action in damages following such a judgment, by the defendants in the injunction suit, involves but one question, and that is the quantum of damages to be allowed.”

If the rule applies to a case in which the injunction was disposed of. by means of an exception, it will certainly, and with greater force, ■ support a claim for damages in a ease which terminates by the voluntary abandonment of the plaintiff in injunction. His action can be reasonably construed as an admission or confession that the writ had been wrongfully obtained.

The city and its alleged abettors can find no relief in this branch of the ease, in the contention that our decision in the case reported in the 41st An. justifies the presumption that the writ was not obtained with malice or without probable cause. Even if the rule could apply to a case of injunction, which seems not to be the case under our well settled jurisprudence, it appears from the pleadings that while the decision in question was rendered on the 11th of December, 1888, the injunction was maintained and enforced until the 15th of February, 1889.

The contention of appellees’ counsel, that the inaction of the city and its failure to shape its course on the decision of this court, can not, under the pleadings, be considered as elements of damages, because they are not specially alleged, is not well founded. After the recitals hereinabove referred to, the petition contains the following averment:

“That said prosecutions before said recorder, and all the proceedings relating thereto, said suit and injunction, said imprisonment, in loss of time, loss of business, distress of mind, the wanton and reckless and unlawful and malicious invasion and violation of petitioner’s rights, have caused him actual damages to the extent of §10,000.” (Italics are our own.)

It would seem that the fact of the inaction of the plaintiffs in injunction, after the decision of this court which radically stripped their injunction of all possible legality or justification, is the most aggravating circumstance in the whole proceedings, and it must be considered as the strongest cause of action on the part of the defendant in injunction, whose business continued to be paralyzed long after the rendition of a judgment by the court of last resort which had settled the question of its legal and legitimate character.

Our conclusion is that that branch of the demand is amply supported by the pleadings, and that the judgment appealed from must be amended accordingly.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed in so far as it dismisses plaintiff’s action for damages on account of the injunction sued out against him by the City of New Orleans and the other defendants; that the exception of no cause of action as to that part of the demand be overruled, and that the cause be remanded for trial on that branch of the case, and it is further ordered that the judgment appealed from be affirmed in so far as it dismisses plaintiff’s demand for damages on account of the alleged malicious prosecutions before the recorder. Costs of appeal to be taxed to defendants and appellees, all other costs to abide the final determination of the cause.


author: Pochb, J.

text:
    No. 10,466.
    The State of Louisiana vs. Moritz Schuchardt.
    'The power of a municipal corporation to control the owners of property in the mode or manner of constructing their buildings within certain designated limits, is not one of the incidental or implied powers which such corporations may exercise in the absence of express legislative authority.
    The exercise of such power must be authorized by the legislature, either by special legislation or by means of a charter, which, in such matters, is the measure of the authority to be exercised.
    A legislative mandate, authorizing a municipal corporation to prevent the reconstruction in wood of old buildings within certain limits does not include the mandate to prevent the repairing with shingles the roofs of buildings originally covered with similar buildings.
    Hence a prosecution under such an ordinance can not be maintained.
    APPEAL from the Second Recorder’s Court, Parish of Orleans. Drenx, J.

      Carleton Hunt, City Attorney, and T. MeC. Hyman, Assistant City Attorney, for Plaintiff and Appellee.

      Sambola & Dueros for Defendant and Appellant:
    1. Municipal corporations are governments of limited powers; wlien their charter, which is ’the measure of their authority, enumerates such powers in a clear and unequivocal manner, the letter of the law conferring such powers can not be disregarded under the pretext of pursuing its spirit. Cooley, pp. 192, 195; 12 An. 133; Act 29 of 1882, p. 21; R. C. C. 13, IS; 1 Zachariai, p. 78.
    2. A law, in derogation of common right, can not be extended to cases not coming within its clear and precise import. 33 An. 68.
    3. The City of New Orleans is not only impliedly, but expressly, prohibited by law from exercising the power which it has arrogated to itself in this case. Cooley, pp. 91, 191, 200; Bullard’s Dig., p. 106; Act of 1812, p. 178; Act of 1870 (ext. sess), p. 36; Act of 1882, p. 21; 3. N. S. 199; 5 X. S. 528, 575; 5 An. 122; 16 An. 351; 24 An. 156.
   The opinion of the court was delivered by

Pochb, J.

Defendant appeals from a sentence to a ñne by a recorder’s court for the violation of a city ordinance, which was enacted in 1888, for the purpose of establishing fire limits for the City of New Orleans.

The section of the ordinance involved in the case reads as follows: “ That it shall not be lawful, and all persons are forbidden, to increase or add to the dimensions of any building already erected, under the pretence of repairing, or cause the same to be done, within the limits described in Sections 1, 2 and 4 of this ordinance, or to repair the roof of any such building, or cause the same to be done, except by using in such repairs non-combustible materials.”

The charge against the defendant was that, in July, 1889, he caused the roof of a house which he owned within the fire limits to be repaired with shingles. The facts alleged in the charge were substantiated by the evidence, which showed at the same time that from the date of its original construction the house, which was a frame building, had always been roofed with shingles. The point made in defence is, that the section of the ordinance herein sought to be enforced is ultra vires for want of legislative sanction or authority in the Oity Council to enact the same.

The source of authority invoked by the City Attorney is the eighth paragraph of the eighth section of the City Charter, known as Act No. 20 of 1882, which provides:

‘ The Council shall also have power * * * to determine within what limit wooden buildings shall not be erected and to prevent the reconstruction in wood of old buildings within such limits.”

It is very clear, and it is conceded on both sides, that the object of this legislation is to do away, as much as possible, with wooden buildings in that portion of the city described and known as fire limits, with the view of diminishing the danger and the occurrence of large and destructive conflagrations.

One portion of the paragraph is intended to prohibit the construction, in the future, of wooden buildings within certain prescribed limits; and the law maker, having no intention to delegate the power of removing or demolishing wooden buildings in existence previous to the adoption of such an ordinance, contemplated, by the means of the latter portion of the paragraph, to empower the City Council to forbid the reconstruction of wooden buildings within the limits to be designated by the Council.

But the question presented for discussion is, whether the power conferred by the latter part of the paragraph includes the authority to forbid necessary repairs to such buildings with the same kind of materials used in the original construction?

If repairs and reconstruction were synonymous terms, the power would undoubtedly be included.

But a very wide difference exists between the meaning of the two terms; and besides, the ordinance does not only forbid the repairs of the building, but even of a portion of the same. In the legislative enactment no reference is made to repairs, and the power therein conferred is in terms restricted to the prohibition of the reconstruction of a former wooden building with the same or similar materials. The reconstruction of a building presupposes a previous destruction or demolition of such building, and in such a case the operation could in no sense be deemed or said to be a repairing of such building, for the repairing of a building must, in the very nature of things, presuppose the contemporaneous existence of the building.

Hence it follows that the sole object contemplated by the law maker was to authorize the City Council to prohibit the reconstruction in wood, within the limits to be by it prescribed, of buildings originally built of wood, and existing as such at the date of the ordinance, but which might subsequently be destroyed by fire or otherwise, or which might thereafter be demolished by the owners. But acting under that legislative mandate, which avowedly was its only authority in the premises, the council went a great step further and it proposed to forbid the repairing of the rooSs of such buildings, except by using in such repairs non-combustible materials. Hence came the present prosecution of this defendant for having replaced on the roof of his building old shingles by new ones. Evidently the danger from fire was not increased by that operation, and therefore it can not be argued that he acted in violation of either the spirit or the-letter of the statute, from which the city could derive its sole power in the premises.

It is therefore clear that the prohibition contained in the city ordinance was not contemplated by the law maker, as it is greater than, and materially different from, the only power or authority which he intended to delegate or confer.

Now, the power in a municipal corporation to control the owners of property within its limits in using or building their property in a manner different from their inclination, desire or convenience, can not be ranked among the implied and incidental powers which such corporations may exercise in the absence of express legislative mandates. It is a useful power, presumably necessary to provide for the greatest good oí the greatest number, but it is, at the same túne, a power in derogation of common right, and unless it be expressly conferred, it will never be presumed to exist. Succession of Irwin, 33 An. 68, and authorities therein cited.

“Except as to incidental power, and which need not be, though they usually are, mentioned in the charter, the charter itself, is the measure of the authority to be exercised, and the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them, thus applying substantially the same rule that is applied to charters of private corporations.” Cooley’s Con. Lim.,'4th ed., p. 235.

We conclude, and we therefore hold, that so much of the ordinance under consideration as is intended to prohibit the owner of a wooden building within the fire limits of the city from repairing the roof thereof with the same materials with which it was covered at the date of the passage of the ordinance is null and void, as being ultra xires, and hence that it can not be enforced by the courts.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that the charge propounded against the defendant be dismissed at the costs of the city in both courts.


author: Fenner, J.

text:
    No. 10,449.
    James P. Guinault vs. Louisville and Nashville Railroad Company.
    Under the Removal of Causes Act, the right o£ removal is determined on the face of the petition, as matter of law. The facts alleged are taken as true and can not he contested in the State Court. If disputed, their truth may he put at issue in the United States Court on a motion to remand.
    The law does not provide for verification of the application hy affidavit. Perhaps affidavit is unnecessary, hut, if otherwise, the affidavit of the attorney for a foreign corporation is sufficient.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. K Murphy for Plaintiff and Appellant:
    1. No corporation has a right to exercise corporate powers in tlie State of Louisiana, or operate a railroad therein, without authority from the State, and without establishing a domicil therein. Acts 1857, p. 61; R. S., p. 144, Sec._740; Act 38 Of 1877, p. 48.
    2. Answers to subpoenas duces tecum must bo made by the parties to whom they are directed, and when evasive'or not direct and responsive to the demand, will be taken as confessed. C. P. Art. 140, 473; Mills vs. Fellows, 30 An. 824; Columbia Fire Co. No. 5 vs. Purcell et als.; 25 An. 284; Murison & Co. vs. Butler, 18 An. 197, 300.
    Bayne, Denegre & Bayne for Defendant and Appellee:
    The judge of the court a qua granted the removal of the cause upon the petition, showing that defendant corporation was created under the laws of Kentucky and a citizen of that State. It does business here as other foreign corporations conformably to the Constitution (Art. 236) and laws of this State. It concedes that it was properly sued in this State. What it asks is, that being'sued hero it may avail itself of the privilege it has under an act of Congress (as a corporation of Kentucky), and remove it into another court exercising jurisdiction within the State. Railroad Company vs. Koontz, 10 U. S. p. 10; Goodletvs. Louisville and Nashville Railroad Company, 122 U. S. 391; Garrett vs. Bonner. 30 An. 1305; Penn Company vs. Railroad, 118 U. S. 295; Davis vs. Montgomery, 36 An. 874.
    The petition was verified by the affidavit of the attorneys of defendants, though such verification was not necessary. Connor vs. Scott, 4 Dillon 342; Hauser vs, Clayton, 3 Wood 273.
    All right of removal is determined upon the petition, and the question is presented as a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to'be true, it appears on the face of the record which includes the petition, and pleadings, and proceedings, down to that time that the petitioner is entitled to the removal, and if so, it takes effect from the filing of tlie petition. Burlington Railway vs. Dunn, 122 U. S. 517.
   The opinion of the court was delivered by

Fenner, J.

In May last this case was before us on appeal from an order of removal to the United States Circuit Court. We then found the application for removal defective in that it did not affirmatively contradict the allegation in the original petition of plaintiff to the effect that defendant was a citizen of and domiciled in the State of Louisiana, and we, therefore, reversed the order and remanded the cause, reserving to defendant the right to remedy this defect.

Defendant thereupon filed a new petition for removal, wherein it is alleged not only that it is a citizen of Kentucky, but that it is not a citizen of Louisiana and has no domicil'therein. On this petition, the judge a quo granted a new order of removal, from which the present appeal is taken.

The fact that under the laws of this State, defendant has appointed a resident agent upon whom process may be served, does not affect the question of its domicil and citizenship. We considered and" determined this point very recently in the case of Barber Asphalt Co. vs. City, not reported.

The same point as applicable to the Removal of Causes has been repeatedly adjudicated by the Federal Supreme Court. R. R. Co. vs. Koontz, 104 U. S., p. 10; Goodlett vs. R. R. Co. 122 U. S., p. 391.

The right of removal is determined on the face of the application, as matter of law. The facts alleged must be accepted, pro hao vice, as true They can not be contested in the State Court. If they are disputed, the United States Court, to which the cause is removed, is the proper forum to settle the controversy, where the truth of the facts may be put at issue on a motion to remand. Burlington vs. Dunn, 122 U. S. 517.

The application and bond complied with all requirements of the law, and the judge a quo performed his simple duty in granting the order of removal.

The objection that the petition for removal is only verified by the affidavit of counsel has no force. The law does not provide specifically for any verification by affidavit; and if affidavit be essential, in absence of any provision to the contrary, the authority of the attorney to make it would be presumed and held sufficient.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,455.
    The State ex rel. Gervais Leche, District Attorney, et al., vs. O. V. Waggner, Sheriff.
    1. A suit brought by a district attorney on the relation of tlie State against a sheriff, in pui’suance of the provisions of Articles 196,200 and 201 of the Constitution for his removal from oflice, is triable by a jury to be drawn in conformity with the provisions of Act 185 of 1880. In such case the retire is not required to be drawn more than thirty days before the term of court, and no advertisement thereof is required.

      2. Documents annexed to and made part thereof maybe examined for the purpose of ascertaining the true import and meaning of the language of the petition.
    3. This court has not the power, and still less the inclination, to interfere with the policy and regulations of inferior courts, unless they be manifestly contrary to law and lead to gross injustice.
    4. In determining the rightfulness or propriety of the ruling of a judge of the lower court in disallowing a change of venue in a civil suit, the rule is much the same as in a criminal case; and the question here is, whether the judge properly exercised his discretion in the premises.
    C>. Like the question of practice in reference to the fixing of causes for trial, much discretion is rested in the judge who presides at the trial, in relation to granting delay to one of the litigants for the purpose of taking the depositions of witnesses who reside beyond the limits of the State. Certain it is, that he is fully authorized to require a strict obsexwance of the forms established by the Code of Practice, as preliminary axxd prerequisite thereto.
    6. In such a suit as this, the State is not required to pay any cost, and can not be required to xnake a deposit of $12, “ jxiry costs,” as required by Act 44 of 1877.
    7. It is axx act of extortion or oppression in office, on the part of a sheriff, to demand and recover from an accxxsed pex*son iix custody the sum of one dollar in cash, as a condition precedent to his release on an appearance bond, and in advance of any trial, conviction and sentence to pay costs.
    8. The law requires that a sheriff, as ex oficio tax collector in a country parish, shall advertise for sale the consolidated delinquent list under one form, all of the immovable property on which taxes are due, the property to be sold in alphabetical order, and the sales to be continued from day to day until completed. Held: that in case any officer ignores these provisions of the revenue law and advertises each piece of property separately and in larger type than such as the law requires, in a newspaper which he personally owns, he is guilty of extox’tion and oppression in office in the sense of the Constitution.
    APPEAL from the Twenty-Sixth District Court, Parish of Jefferson. Rost, J.

      Walter H. Rogers, Attorney General, Gervais Leche, District Attorney, and Chretien & Suthoñ, for the Relators and Appellees:
    1. On an exception of xxo cause of action and vagueness, documents annexed to the petition must be considered. 27 Axx. 224; 30 An. 1148.
    2. Oix motion to quash venire for any irregularity, fraud or irreparable injury must be alleged and proved. 84 An. 118; Act 1877, 3sTo. 44, Sec. 10; 83 An. 1414; 88 An. 460.
    8. The fact that there are names of persons disqualified in the venire box will not vitiate the drawing. 32 An. 84.
    4. In suits under Article 200, Constitution of 1879, the method of drawing and summoning special jury is pointed out by Section 4 of Act 185 of 1880 — exclusively of the general jury law.
    5. The admission of one party that absent witnesses of the other pax’fcy, if present, would swear to whatever facts the latter wishes to prove by them, is sufficient to prevent a continuance. C. P. 466; 24 An. 281; 81 An. 44.
    6. Applications for change of venue are largely in tlxc discretion of the lower judge. 88 An. 460.

      The prejudice against defendant should be shown to be general throughout the parish. 38 An. 460.
    Merits.
    1. In country parishes, sheriif is the keeper of the parish jail. R. S. 3541. Hoisentitled to no extra fees for a jailor. Const. 1879, Art. 11. Wilful refusal to provide one is non-feasance.
    2. The sheriff can not occupy any position of profit under the police jury. Act. 1884, p. 135.
    3. The sheriff can not charge a fee of one dollar in taking bond of a person accused. Const, of 1879, Art. 119; 37 An. 788. To do so is extortion. Ignorance of law, and lack of criminal intent will not avail a public officer when inpeached. C. C. Art. 7; 39 An. 160, 169. Extortion defined by statute. Act. 57 of 1888.
    4. To collect delinquent taxes from some, without payment of interest, and to remit interest for others, is favoritism. The interest on a tax is practically part of the tax itself. 33 An. 1039. No one can remit taxes except the ‘Legislature, and that only in certain cases. Const. 1879, Art. 212.
    5. Interest is due upon all taxes when delinquent —parish as well as State. The law docs not distinguish. Act of 1888,No. 85, Sec. 84. The law requires tax advertisements of immovable property to be under one form and in nonpareil type. Act 85 of 1888, Sec. 53. Advice of counsel is no defence in an action of this kind, as corrupt intent is not sacramental. 39 An. 160.
    6. A tax collector who fails to make monthly, quarterly and yearly settlements with police jury is guilty-of non-feasance. Act No. 85 of 1888, Sec. 78. See Acts of 1886.

      Gus. A. Breaux and St. M. Berault for Defendant and Appellant:
    1. Exception to venire.
    Jury must be drawn according to Act of 1877, Sec. 4, p. 56.
    Act of 1880 can only authorize waiver of formalities when jury is drawn in term time.
    Complete jury according to order of court nnist be drawn and summoned when presented to court on first day of term; otherwise it is illegal. State vs. Smith, 30 An. 467.
    2. Change of venue must be granted in civil cases where prejudice is shown so as to prevent fair trial; nor is it necessary that the prejudice should exist all over the parish.
    3. A party making an affidavit of materiality of testimony simply, absence of witness from State, entitled to a commission. C. P. 436; Act of Í826, Sec. 11, p. 171. Barfield vs. I-Iewlet, 4 L. 119. Shaell vs Rightor, 4 Rob. 59.
    4. Defendant could not be forced to trial on Friday, July 5. Case was not fixed. Default set aside is as if never taken. Rule 3 of court. Magee vs. Dunbar, 10 L. 550.
    5. Jury costs in civil cases must be deposited before court can order jury. Act of 1879, Sec. 9, p. 58.
    6. Case can not be tried without sheriff or acting sheriff pointed out; where either are present and able to perform duties, the court is without power to appoint a special sheriff. Secs. 652, 3555, 3556; C. P. 772.
   The opinion of the court was delivered by

Watkins, J.

Under the authority of Articles 196, 200 and 201 of-the Constitution, the District Attorney of the Twenty-sixth Judicial District instituted this suit against the respondent as Sheriff of the-Parish of Jefferson, one of the parishes composing that district, for-his amotion or removal from office.

On the authority of Act 185 of 1880, the plaintiff prayed that a. special jury be ordered to try the case, and the jury selected returned a verdict in favor of the relator, and from a judgment of removal the respondent has appealed.

Preliminary to the discussion of the various charges that are preferred against the respondent, there are several alleged irregularities in the proceedings which must be considered.

I.

The respondent’s counsel excepted to and moved to quash the. venire on the grounds: (1) That the Jury Commissioners did not examine and revise the original venire list, and strike therefrom the. names as required by law, but that such revision was made by persons who are unauthorized by law; (2) that the venire was drawn within thirty days of the term at which the jurors were to serve, and was not advertised in the official journal as required by law; (8) that no list of the jury was made by the clerk and handed to the sheriff to be served; (4) that all of the officers appointed by law, and citizens appointed by the court did not.participate in drawing the venire.

This suit was filed on the 18th of June, 1889, and a regular non jury term of the court convened on the 24th of that month, and on that day the respondent’s motion to quash the venire was filed. The law provides that “in case either party prays for a jury during a term for which no jury has been drawn * * the court shall at once, order the Jury Commissioners to draw * í! a special jury * * to try the case, if either party require it. * * In all cases, where a special jury is ordered, the judge shall order the drawing of thirty qualified jurors, who shall be summoned by service of notice in the usual form.” Section 4, of Act 185 of 1880.

In exact compliance with that statute, the judge a quo made an order for the summoning of a special jury of thirty qualified jurors. This order was made on the day the' suit was filed, and the Jury Commissioners assembled on the 18th of June following and revised the jury lists, and selected therefrom the requsite number of names and placed them upon separate slips of paper, and deposited them in a box, and thirty names were drawn therefrom and listed, and the list constituted the special venire in question. It is quite true that only twenty-six persons answered to their names when called on the day the court first convened, and that one was not summoned, but neither the validity or legality of the venire were effected thereby.

Under such circumstances the special jury is not required to be drawn more than thirty days before the term of court convenes, and no advertisement is required.

There was no irregularity or illegality in the drawing or the composition of the jury.

II.

The petition, taken in connection with the annexed documents, state the charges fully, and a cause of action is set out.

III.

Counsel make serious complaint of the judge’s ruling in regard to fixing the case for trial. We can discover no impropriety in the acts Df the judge in this particular, or any possible injury the respondent has suffered, on account of such alleged errors. The judge was fully authorized and empowered to enact rules of proceeding in his court. O. P. 145.

As our predecessors very justly observed in Green vs. Dakin, 15 La. 152, we may properly reiterate here:

“We have not the power, and still less the inclination, to interfere with the police and regulations of inferior courts unless they be manifestly contrary to law and lead to gross injustice.”

This is not the case in this instance.

IV.

Respondent made an application for a change of venue on the ground that he could not expect to obtain a fair trial in the parish of Jefferson, where the suit was pending, “because of prejudice existing in the public mind.” R. S. Sec. 8908.

Under the evidence in the record we do not feel justified in interfering with the judge’s discretion.

v.

On the 5th of July, the respondent filed an affidavit stating that one Wilson, who was at that time in Ohieago, Illinois, was an important witness and that his testimony was material and indispensable to his defence; and that said Wilson left the parish of Jefferson prior to the institution of this suit. It further stated that the testimony of one Bates, who resided in the parish of Bast Baton Rouge, was material and indispensable for his defence. On this affidavit the respondent’s counsel requested the issuance of appropriate ■commissions to have the testimony of said witnesses taken, under the provisions of C, P. 436 and 437. This application was refused by the court because the motion and affidavit were not prepared as the law requires, nor within the delay fixed by law.

Article 436 of the Code of Practice provides that “when the witness intended to be examined lives out of the State, it shall be sufficient for the party wishing to take his. testimony to apply to the judge having jurisdiction of the cause, and swear to the materiality of the testimony.”

This article must be construed with the succeeding articles, one of which provides that “commissions must be accompanied with the interrogatories,” and must be notified to the adverse party. O. P. 438.

This was not done in this ease. But the circumstances under which this application was made were peculiar and exceptional, as will readily appear from what has already been said in this opinion, and many of them are set out by the judge a quo in his reasons for refusing it. Like the question of practice, in reference to the fixing of causes for trial, much discretion is vested in the judge who presides at the trial. Indeed, the Code of Practice provides that “when either the plaintiff or the defendant has witnesses whom he wishes to be heard in support of his claims, he must cause the testimony of such witnesses to be taken in writing, to be read in evidence on the trial of the cause, pursuant to the rules of. the respective courts.” ‘C. P. 424.

It is not pretended that the application was made in pursuance of C. P. 465; and it could not have been, because it is distinctly stated that one of the witnesses resided in Baton Rouge, and the other went to Chicago before the suit was filed; and it does not appear that either party had ever been summoned.

The ruling of the judge was clearly correct.

The application having been refused, the defendant’s counsel prepared and tendered another application, in which the substance of' the testimony of those witnesses was given; and time was demanded to take the evidence. In the exercise of a legal right, the relator’s counsel made and filed an admission that if the witnesses named were present in open court they would swear to the facts enumerated ; and it was the duty of the court forthwith to proceed with the trial as if such witnesses had been examined. O. P. 466.

The defendant has no ground of complaint on this score.

VI.

Complaint is made that neither the relator nor the petitioning citizens made a deposit of the $12 “jury costs” with the clerk of the court, as is required by Sec. 9 of Act 44 of 1877, and that the jury was illegally ordered without such deposit. That act is the general jury law in force, and we have already decided that Sec. 4 of Act 135 of 1880 controlled the drawing of the jury in this case, and that statute contains no provision similar to the general jury law on that subject. It is a noteworthy fact that the law makes no provision for the payment of any costs by the State in such a case as this. The statute regulating the modus operandi in such suits as this declares, “that if judgment in such suits be rendered against the defendant he shall be condemned to pay all costs, and if judgment be rendered in his favor, the citizens at whose request the suit was brought shall be condemned jointly and in solido to pay all costs.” Sec. 10 of Act 135 of 1880.

This is substantially the same provision as that of Sec. 7 of Act 122 of 1880, in relation to the trial of such of this class of cases as may be tried in this court originally; and we have decided that the State could not be held, by a judgment of this court, amenable for the cost of such a proceeding, in any court, as the law now stands. State ex rel. Attorney General vs. Lazarus, Judge, 40 An. 856.

VIL

There are several minor questions of like character which are discussed in the respondent’s counsel’s brief, and pressed upon our attention in oral argument; but as an examination and decision of them can not affect the issues .before ps, we pass them over without discussion.

After giving patient and careful consideration to the various technical pleas that were interposed in behalf of the respondent, we have at last reached the merits of this case.

The charges preferred against the respondent are thirteen in number, consisting of a great variety of official delinquencies in the discharge of the duties of the office of Sheriff and the duties devolving upon him as State Tax Collector, by virtue of his office.

Of these we only propose to take notice of two or three in detail: The first that strikes our attention is the seventh charge, which is, that the respondent “is in the habit of charging prisoners accused and released on bond the sum of $1 on such release, which charge is not lawful, and it is therefore extortionate.”

To this charge his counsel say in their brief, page 21:

The candid answer is, that he “does charge $1 for a release on bond.”

Speaking as a witness, the respondent says: “The rule of the office has been to charge a dollar, but I have never allowed that charge to retain a prisoner in custody. I have never denied a man the right of liberty if he said he would pay the charge.”

As his authority for making this charge he says: “I have consulted my attorney on the score of the Sheriff’s fee bill. Act 101 of 1870, the only fee bill I know of, provides for the charge of $1.”

Section 2 of that act provides, among other things, “that the Sheriffs throughout the State shall be entitled to demand and receive the following fees of office, and no more, viz:

“For taking bond in all cases, civil or criminal, when by law the Sheriff is required to take bond, $1.”

It strikes us as being quite a novel proposition that a sheriff or an attorney at law should have' seriously supposed that that law was a shield for such practices. It had for its declared purpose “to define and regulate the costs of clerks and sheriffs throughout the State.” The one quoted is but one item in the act, and it certainly does not follow therefrom that the Legislature intended to authorize sheriffs to extort, in cash, and in advance, $1 from a defendant in a civil suit as a condition precedent to the release of his property from seizure, or from an accused person in a criminal prosecution — the like sum as a condition precedent to the release of his person from custody. For, if the sheriff may demand and receive $1 for the taking of bail bonds, what reason is there to say he shall not demand and receive all other fees in the same way and at the same time; for the law says he is “entitled to demand and receive the following fees of office?” It is certainly not a sufficient excuse for the defendant to say that he has never denied any one his liberty “who said he would pay the charge.” That he was willing to take a prisoner’s verbal assurance, does not alter the principle involved.

For, the corollary of his own theory is fully established by respondent’s own evidence, and it is that, if a person under arrest should decline to make such promise, be would refuse him his liberty.

Surely, argument is unnecessary to demonstrate the utter fallacy of such a proposition as this.

VIII.

The eleventh charge against the respondent is that he is the owner of a newspaper in which he publishes all official notices appertaining to tax proceedings, and also advertisements of tax sales, and that his charges therefor are unlawful, unreasonable and extortionate, and that the same are illegally made.

The law requires that the tax collector “shall proceed to advertise for sale the consolidated delinquent list, under one form, as provided for judicial sales, all the immovable property on which taxes are due, substantially in the following form:” Thus, the form is given, and it requires that the advertisement shall state that the sheriff will sell, beginning on a specified day, ‘ ‘ and continuing on each succeeding day until said sales are completed, all immovable property on which taxes are due to the State of Louisiana and parish of-to enforce collection of taxes assessed in the year 18 — , together with interest thereon, from the Slst of December, 18 — , at the rate of 2 per cent, per month until paid, and all costs. The names of said delinquent tax payers, the amount of taxes due by each on the assessment roll of said year, and the immovable property assessed to each, to be offered for sale as follows, to-wit: (Here state names in alphabetical order, the amount of taxes assessed in each year on each specific piece of property, then the description of each specific piece of immovable property to be offered for sale, and conclude substantially thus:”) * * * *

It requires that “said advertisement shall be signed officially by the State Tax Collector, * * and shall be dated,” and “that each ten lines of nonpareil type of tax sale advertisement shall constitute a square, and shall be paid for by the tax collector, as now provided by law; each delinquent being responsible only for the pro rata space of said ten lines occupied by the description of his taxes and property.” Section 53 of Act 85 of 1888.

Ever since the adoption of the Constitution of 1879, similar provisions have been made in all revenue statutes.

The manifest purpose of the Legislature was to reduce to a minimum the cost of forced expropriations of tax delinquent property, and to relieve the people from the oppressive burdens that had been laid upon them under the operation of prior revenue laws.

The proof in this case conclusively shows that this statute was completely ignored by the respondent. He made a separate advertisement of each piece of property. When the same piece of property was advertised for sale for several years’ delinquent taxes, the advertisement was repeated for each year. He did not advertise “a consolidated list under one form,” as the law requires. The proof shows that the defendant did not use nonpareil type, but a larger size, and thereby the number of squares is largely increased.

This course of dealing with the property of delinquent tax payers is not denied by the respondent; but he confesses it and says that he acted under advice of counsel. This can not avail; for it is too evident to admit of question, that the defendant, as a public officer, has construed the law to suit his own convenience and so as to enrich himself at the expense of the tax payers. The direction of the law is too plain and unambiguous to admit of doubt or question.

Now what is the law applicable to such a state of facts as this?

Act 19 of 1886 provides “that no costs, whether in the shape of stamps or otherwise, shall be demanded or exacted from any defendant or party accused, in any criminal prosecution in this State; and all processes for the attendance of witnesses, and other processes of court, shall issue in his behalf, without the payment of any advance costs or affixing any stamps; and no defendant or party accused shall, in any case, be required to pay any costs or affix any stamps, until he shall have been tried, convicted and condemned to pay costs.”

Section 1 of Act 57 of 1888 provides “that any public officer * * whose compensation * * is fixed by the Constitution or laws * * who shall charge, or receive, or take, directly or indirectly, any more than said lawful compensation for said official services or employment, shall be deemed guilty of extortion in office,” etc.

(The italics are ours.)

Section 3 of that Act declares “that any officer or person violating the provisions of this Act shall be deemed guilty of a misdemeanor,” and be punished accordingly.

Indeed the Constitution declares, in terms, that “sheriffs shall receive compensation from the parish for their services in criminal matters * * not to exceed $500 per annum.'’’’ Const., Art. 119.

In discussing that constitutional restriction on sheriffs, this court .said in Lake, Sheriff, vs. Parish of Caddo, 37 An. 788:

“Without concerning itself with the particular verbiage to be employed, the impulse (of the Convention) was to get rid of these annual drafts upon the people in criminal matters, and it did not care what the matter was, for which these annual charges had been made, .so it appertained to criminal expenses; the intention was to wipe them out and substitute a fixed annual allowance, not to be exceeded.”

In the light of all these concurrent laws, specific and plain in their terms, how can it be conceded that the defendant’s custom was either innocent or accidental? How can it be palliated by the advice of counsel? While it is true the sheriff neither as such, nor as tax collector, received any additional compensation, by means of the illegal advertisements which appeared in the newspaper which was owned and operated by him personally, yet it was under the color of- his office that such illegal exactions were made, and large sums of money extorted from the tax payers, because the sheriff, as ex officio tax collector, is required to prepare tax advertisements, and insert them in the newspaper. It is made his duty to collect the cost of such advertisements from delinquents, or from the proceeds of sale. Hence, it is through the illegal act of the sheriff, officially, that such unlawful exactions are made, and the money thus unduly extorted from the people is paid into his coffers.

Many other acts of non-feasance and misfeasance are charged against the respondent and supported by proof; and, while they might not of themselves support this action, yet they serve to add force to those more serious charges, on two of which we have chosen to rest our conclusions. But, while we express no opinion as to the weight or gravity of the former, and maintain the sufficiency of the latter, we take the precaution to announce that each case of this kind must depend on its own facts; and, finally conclude that the facts of this case, taken as a whole, fully sustain the verdict of the-jury and judgment of the court a qua.

Judgment affirmed.


author: Beemudez, C. J.

text:
    No. 10,437.
    Succession of Julia Corrigan, Wife of Thomas McDonough. On Partition Proceedings.
    A judgment rendered in a partition suit in favor of plaintiffs, wlio aro therein correctly named, and against the only defendant therein, who is incorrectly named in part, is a valid and binding judgment against the party alleged to be co-owner, and asked to be, and who was cited, and who is the only defendant in the suit.
    A rule taken to correct the clerical error committed, although superfluous, may bo made absolute, even after the judgment of partition has been executed by the sale of the property held in indivisión. An answer liled in a ease after a Anal judgment has hoon therein regularly rendered and signed, is entitled to no notice.
    Kxceptions of estoppel and res adjudicata, are well founded to a suit brought to annul a will after the plaintiff therein has freely acknowledged the capacities of the legatees, and. after these have been practically recognized as such by a judgment contradictorily rendered, which has been executed without opposition, and which has passed beyond review.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Sambola & Diteros and E. I. Moral for the Appellees:
    1. A clerical error, in any judgment, as to a litigant’s Christian name is inconsequential, and may bo corrected by rule at any time, when his identity is not doubtful and no injury bus resulted to him from such error, 16 D. 71; 2 An. 508, 715; 14 An. (510; 24 An. 174; 27 An. 491; 81 An. 581; 41 An. 424; 1 Starkie414; Wharton’s Law Diet. 492; 10 Sirey, past 1179; 2 Troplong, Priv., p. 808; 8 Pont, Xrlv., p. 941; 1 Solon, Xos. 407 and 418; 18 An. 218; 21 An. 885; 80 An. 175.
    2. A party litigant may be estopped by his juridical conduct from assorting a legal right by suit or exception; and a partition judgment by default is res judicata as to all the parties thereto, the authority of the judge thereon being confined to its execution. 14 D. 26; 24 An. 271; 5 X. S. 668; 6 An. 8C0; 11 L. 498;
    5 Xachariaj, p. 785: 5 Darombiérc, p. 222.
    8. When no error, vice or irregularity is pleaded or shown in an act of partition, the partition can not but bo homologated by the court. It. O. O. 1874, 1875, 1876, 1877; V. P. 1029,1080, 1031, 1032.

      Ker & Duvigneaud for the Appellant :
    1. A judgment entered against a person different from the one cited, may be corrected nunc, pro tunc contradictorily with the real defendant and then be executed ; but a judgment erroneously entered against one, not the real defendant,, can not be executed first and corrected afterward. 31 An. 530; 27 An. US.

      2. A mlo homologating a partition, without having first obtained a judgment decreeing a partition against the, proper parties, is an absolute nullity.
    3. There can bo no plea of res judicata in a suit whore the. matter pending before the. court was never decided by a previous judgment. O. C. 2286. A party is not estopped for suing for the nullity of a will, because he appeared in the inventory made in the mortuary proceedings had in decedent’s succession and signed the same.
    An inventory is an act which can be contradicted by parol testimony. 5 An. 350. The only object of an inventory in eases, of successions and community is to fix file value of property. O. 0.1106,1107,1108 and 110!); i R. 278 ; 7 An. 617.
    The acts which can not be contradicted'by parol evidence are those which contain contracts and contain mutual obligations. An inventory is not such an act. 5 An. 550.
   The opinion of the court was delivered by

Beemudez, C. J.

It is difficult to announce briefly the nature of the compound proceedings in which the judgment appealed from was rendered.

The main object in view may, however, be stated to be the homologation of a partition and the distribution of the proceeds of a sale of real estate in furtherance of the will of the deceased.

It appears that the surviving husband of the deceased and a child of age, claiming to own, the former one-half, the latter one-fourth, of certain real estate not susceptible of a convenient division in kind, brought suit against their co-proprietor,Thomas Ryan, another child of the deceased, owner of the remaining fourth.

He was cited and failed to answer. A default was then taken and subsequently confirmed against him, decreeing the sale of the property and the distribution of the proceeds of sale, as prayed for.

The property was advertised and sold, the proceeds being deposited with the notary for distribution.

At this stage Thomas Ryan filed an answer in the partition proceedings and brought suit to annul his mother’s will, to which exceptions were taken.

On the refusal of Thomas Ryan to approve and sign the act partition prepared by the notary, the surviving husband and his co-plaintiff took a rule on him to homologate the proposed distribution.

As defences, he urged that the judgment of partition was a nullity, as it had not been rendered against him,, but against Stephen Ryan; that he had failed to answer to the petition in the case, which had not been passed upon; that he had instituted a suit to annul the will of his mother, which was pending.

The plaintiffs in rule then tools a rule on Thomas Ryan to show cause why the judgment of partition, containing the clerical error charged, should not be corrected, n-unc pro tuno, by substituting the name Thomas for that of Stephen, therein found.

The rule to homologate, that to correct, and the exceptions to the suit for the nullity of the will, were cumulated and tried together.

The District Court made the rules absolute homologating the partition, correcting the error and sustained the exceptions, dismissing the suit to annul.

Thomas Ryan appeals.

II.

The first question to be considered is: Whether or not, the judgment decreeing the partition is a valid judgment, binding on Thomas Ryan.

It appears, beyond doubt, that the plaintiffs in that suit, namely, the husband and one of the two heirs of the deceased, alleged ownership in common of certain pieces of real estate with Thomas Ryan, the other child of the deceased, by a previous marriage with Stephen Ryan, deceased; that they asked that Thomas Ryan be cited; that the citations issued to and were served on Thomas Ryan; that Thomas Ryan was the only defendant in the suit; that a default was taken against “the defendant,” and that judgment on confirmation was rendered in favor of the plaintiffs against “the defendant,” naming him as “Stephen Ryan” instead of Thomas Ryan, decreeing the partition by sale by an auctioneer on certain terms, and distributing the proceeds; one-half to the surviving husband, one-fourth to his co-plaintiff, one of the two heirs of the deceased, and one-fourth to the other only heir, who was Thomas Ryan, but who was named as Stephen Ryan (his father’s name).

There is evidence to show that this was a clerical error, as no one but Thomas Ryan could have been and was the defendant.

It is manifest that had the judgment been simply one in favor of plaintiffs and against defendant, without giving any name, it would have been a valid and binding judgment, for the plain reason, that by reference to the petition it would have been most easily ascertained who the plaintiff and the defendant were. Id eertum est quod cerium reddi potest.

Now, instead of omitting the names, the judgment was rendered in favor of plaintiffs, naming them correctly, and against the defendant, naming him incorrectly, Stephen instead of Thomas Ryan.

A judgment is always read by the light of the pleadings.

Referring to the petition it would have been eas}' to determine that a clerical error had been committed, because the defendant named in the judgment as Stephen, could not have been any one but Thomas Ryan, who was the only defendant in the case.

Naming the defendant in the judgment was not an essential requisite, as the judgment would have been valid against him without his being named at all therein. Utile per inutile non vitiatur.

It therefore follows, that the mention of the names was superfluous and that the judgment must be read as against Thomas Ryan, the only defendant named in the petition, asked to be cited and summoned to answer.

The rulings invoked by Thomas Ryan, 27 An. 445; 31 An. 530, show that a judgment which contains an improper name, the. insertion of which is the result of inadvertence, may be corrected by a rule taken and tried contradictorily. They acknowledge, therefore, the validity of such judgment, as a judgment which would not, on the face of the papers, have been valid could not be corrected at all, but would have to be ignored as a nullity, patent on the record.

In the first case the judgment had been rendered against J. N. R., instead of P. J. R. In the other it had been rendered against P. L. and M. W. in solido, instead of P. L. and M. S.

Execution having issued, as though the judgment had correctly named the parties condemned to pay, proceedings were taken to arrest the same.

The judgment of the lower court in the first case sustained a rule to quash the execution, and in the second case dissolved the injunction issued. On appeal the first judgment was affirmed and the second reversed, the right of the appellee to have the clerical error corrected being reserved.

Pretermitting any opinion as to the correctness of these rulings, it is apparent that the cases in which they were made and the instant one are essentially dissimilar in this: that the execution of the writs in both cases had been arrested, while in the present controversy there was no writ at all, bnt only a judgment directing-a sale, and that the carrying out of that judgment was not at all obstructed by Thomas Ryan, who allowed it to be executed, and who was, as he still is, a resident of the parish in which the judgment was rendered and executed.

It is a well settled principle that no action lies against a judgment voluntarily executed or(lacquiesced in by the debtor, C. P. 567, or when the debtor has been guilty of laches, O. P. 612; 3 An. 646; 6 An. 799.

It is upon this principle that the Oode of Practice provides that a party against whom a judgment has been rendered, without his having been cited, can not demand its nullity where such party was present in the parish and yet suffered the judgment to be executed without opposing the same, C. P. 612.

In the present instance it appears from the record that the property ordered to be sold to effect a partition, was advertised by the-designated auctioneer as property belonging to the succession of the deceased, and as ordered to be sold by the judgment in partition rendered in that matter.

The defendant, who was and is still a resident of the parish of Orleans, in which the judgment was rendered and executed, has not shown that good conscience was opposed to the execution of the judgment, and that he could not have averted its execution, 3 An. 646; 6 An. 799. He was certainly guilty of fatal laches, and can not be relieved.

' II.

The next question is whether or not the plaintiffs have the right to have the judgment corrected nunc pro tunc.

The inquiry is solved by the mere statement that as the particularjudgment was valid and binding on its face, it was strictly unnecessary to correct the clerical error committed in drawing it up, and.' that under the very authorities relied on by the defendant in rules, the judgment could have been corrected summarily, but contradictorily. Utile per inutile non vitiatur.

It is hardly necessary to say that, as the judgment was valid, the answer filed by Thomas Ryan long after its rendition and signature,, is entitled to no notice whatever.

III.

The last question remaining for consideration relates to the exceptions filed by the husband and one of the heirs to the petition of Thomas Ryan for the nullity of the will.

The averments of the petitioner brutally asperse the character of his deceased mother by accusing her of adultery, and attempting to brand her daughter, and his sister, as an adulterous bastard; the whole on the ground that when her pretended second marriage was celebrated, Stephen Ryan, his father, was living.

The exceptions pleaded are: Estoppel and res judicata.

The record shows that at the taking of the inventory the surviving husband and the daughter, who brought the suit in partition, assumed those qualities, as well as that of legatees, under the will of the deceased, and that Thomas Ryan, who was present-at the taking of the inventory, voluntarily signed the act recognizing both in those capacities, although, true it be, that he protested; but this protest was not as to the capacity assumed by the husband and daughter. It was restricted to the alleged fact that a piece of real estate and some money, not mentioned in the inventory, should have been included in it.

It also shows that, although in the petition for a partition the plaintiffs therein had fully asserted their respective capacities and pretensions under the will of the deceased and the law; and although Thomas Ryan was duly cited and had every opportunity to charge counter the claims of the plaintiffs, he did not gainsay them, but allowed a judgment by default to be confirmed and executed against him without opposing the same.

The judgment thus rendered contradictorily with him recognizes the capacity and pretensions of the plaintiffs in partition, and as it has not been appealed from and was signed much more than a year ago, it has acquired the force and effect of a sovereign judgment, and concludes Thomas Ryan absolutely.

It is good that the mouth of the defamer be closed.

It is, therefore, ordered and decreed that the judgment appealed from is affirmed with costs.


author: Bermudez, C. J.

text:
    No. 10,497.
    The State ex rel. Abraham Williams vs. the Judge of the Tenth Judicial District Court et als.
    A court can not entangle its powers so as to bring them to a Uoad-IocJs.
    The court winch has rendered a judgment has exclusive jurisdiction over a suit to annul it.
    An order staying proceedings, rendered on an application for a respite, does not strip the court which rendered it of jurisdiction over a suit by creditors to annul it, coupled with a prayer for conservatory process.
    The only object of such seizure would be to secure the. property of the applicant for the common good of all the creditors.
    Prohibition does not lie to prevent such court from hearing and determining such suit, over which it alone has jurisdiction.
    ^PPLICATION for prohibition.

      8. A. Hull and J. O. Pugh for the Relator.

      Jos. N. Wolf son and B. R. Forman for the Respondents:
    1. Prohibition will not lie when no exception to tlic jurisdiction of the inferior court has been made and overruled.
    2. No law authorizes a district court to stay all proceedings against a debtor who applies for a respite before the respite is granted. O. C. 3084 to 3008.
    3. The respite law is not an insolvent law, but is based on the supposed solvency of the debtor and his eventual ability to pay all his debts. Rasoli vs. Creditors, 3 R. 403; Miller vs. Rasoli, 3 R. 410; and when the schedules show that the liabilities exceed the assets, no ground is laid for the respite.
    4. The order on a petition for a respite for a stay of proceedings does not divest the court of jurisdiction to issue an attachment in a suit by a creditor to set •aside the order when the. creditor avers, under oath, that the debtor 1ms disposed of and is disposing- of his property to put it beyond the reach of his creditors, and is using- the, proceedings for a respite to enable him the better to carry out his scheme. Pecquet vs Golis, 1 X. S. 439; Jeffries vs. Belleville Iron Works, IB An. 19.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

One relator complains that although the respondent judge has, in his application for a respite, granted him a stay of proceedings against his creditors, said judge has, on the petition of certain parties claiming to be his creditors, who are entitled to neither privilege nor mortgage, authorized the issuance of an attachment directing the sheriff to seize and detain all his property.

The charge is, therefore, that by reason of the previous order staying proceedings, the District Court divests itself of all jurisdiction over all suits, actual or contingent, against the relator and his property, and that the judge of said court exceeded the bounds of his authority and usurped jurisdiction when he entertained the petition of certain creditors for an attachment.

The district judge elaborately returns that the order did not divest him of jurisdiction; that under grave averments made by the creditors, charging the illegality of said order and fraudulent practices by the applicant — the purpose of which was to dispose of his property to their prejudice — pending the proceedings following the order, he was authorized to entertain a petition for the nullity^ of the whole order made on the application for a respite, and to award conservatory remedy to secure, meanwhile, the property of the applicant for the benefit of the creditors as their common pledge.

The question to be determined presently is not whether the decree on the petition for a respite was or not legal, or whether the order' for an attachment should be annulled; but it was simply: whether, after granting the order staying proceedings, the district judge could or not entertain a suit in nullity of said order, and by appropriate remedy, prevent the applicant for a respite from disposing fraudulently of his property, to the prejudice of his creditiors.

Conceding that the order staying proceedings was such as the law authorized, it is clear that it could produce no greater effect than a similar order in insolvency proceedings.

Sec. 1790, R. S., provides that “when issuing the order for the-meeting of the creditors, the judge shall order that all the proceedings, as well against the person as against the property of the debtor, be stayed.”

Sec. 1816, R. S., is to the effect that “all the suits which may have been brought, anterior to the failure, shall be transferred to the-court in which the insolvent debtor shall have presented his schedule and shall be conducted against his syndic.”

In both cases, respite and surrender, the order is designed to protect as well the applicant and his property as his creditors, by maintaining provisionally the statu quo.

It operates like an extraordinary injunction, to which the law attaches the exceptional effect of arresting proceedings pending before courts other than that before which the application, either for a respite or for a cession, is made, and is not intended to prevent the institution of further suits, either against the applicant or his property, in proper eases.

In cases of surrender the pending suits do not abate, but must be transferred to the court seized of the insolvency proceedings. 41 An. 44.

In the early case of Pecquet vs. Golis, 1 M. (N. S.), p. 438, it was held that creditors could proceed against one who had obtained a respite and meditates a removal, to have him arrested, and his goods seized and placed in gremio legis.

In the latter case of Jeffries vs. Belleville Iron Works, 15 An. 19, the then Supreme C.ourt held that creditors of an insolvent had the right, by a direct action, to seek the nullity of the order of court accepting a surrender of property by an insolvent, by contradictory proceedings in the same court. .

Indeed, not only had the court jurisdiction, but it was the only one which could have and had authority to annul one of its judgments. O. P. 608; H. D. 746 (2).

The Code, R. O. O. 3098, declares, that when the creditors refuse - a respite, the cession of property ensues and the proceedings continue, as if the cession had been offered in the first instance.

Sec. 1805, R. S., et seq., recognize in creditors, in the cases stated, the right to proceed judicially in the manner and form prescribed, to-have their debtor arrested and punished in different ways.

It is right and proper, particularly in cases of respite, that creditors, notwithstanding the order staying proceedings, should retain the privilege of protecting themselves in proper cases, not only by the arrest of their debtor, but also by the seizure of his property for their common good.

By the application of a respite, the ownership and possession of the property of the applicant were not diverted from him, and did not pass to his creditors, as in cases of surrenders. They both continue in him, at least until the meeting of the creditors has been held.

A court can not entangle its powers so as to bring them to a deadlock.

Were the creditors, in consequence of the order staying proceedings, stripped of the right of self-protection and thus paralyzed, the result 1701x111 be that a debtor in bad faith could, under the shield of the law, take advantage of the intervening delay and fraudulently dispose of his property in various ways, to their injury.

It is therefore plain that creditors have a right to sue their debtor, notwithstanding the order staying proceedings, and on a proper showing secure his property, and have the preliminary orders, and sometimes the final orders and decrees, themselves annulled.

The authorities referred to by relator have no bearing.

There is no attempt in this case, as was sought to be done in those to which our attention is called, to attack collaterally the proceedings, or to nullify them by the authority of another tribunal.

The action in this case is direct, and is brought before the same court that made the preliminary staying order.

In acting as he has done, the district judge has not trangressed, but has kept himself within the bounds of his jurisdiction.

.It is, therefore, decreed that the preliminary restraining order herein made be rescinded and that the application for a prohibition be refused with costs.


author: Bermudez, O. J.

text:
    No. 10,517.
    The State ex rel. Pemble, President Police Jury, vs. George W. Buckner, Special Judge.
    As a rule a statute without negative words will not repeal llio particular provisions oí a former one, unless tlie two are irreconcilably inconsistent.
    When the. mind oí Hie legislator has been turned to the details of a subject, and has acted upon it, it subsequent statute, treating the subject in a different maimer, and not expressly contradicting the original act, will not ho, considered as intended to affect the more particular or positive provisions, unless it is absolutely necessary ty give the latter such a construction in order that its words may have any meaning at all.
    The. act of 187B, No. 103, which provides that a rule by the District Attorney against a defaulting tax collector shall be tried at chumbera when it can not be tried in term time has not been repealed or annulled in that respect.
    Acts 9(> of 1882 and 85 of 1888 has merely shortened the time of notice, from the ten. days provided for in the act of 1878, to three days.
    The purpose of the law is to accelerate the trial at all times, of proceedings against delinquent tax collecting revenue officials, tor the, greater protection of the fisc and the State.
    It is the ministerial duty of a District Judge, to try such rules at chambers, whop they can not be heard and determined in term time.

      A PPLICATTON for Mandamus.

      J. H. Stone, District Attorney, and W. B. Rutland for the Relator.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an application for a mandamus to compel the defendant judge to try at chambers a rule taken by the District Attorney against a defaulting tax collector.

The District Judge returns, that although the law provides for a summary proceeding, it does not state that such proceeding shall be tried out of term time, at chambers, and that the rule can not be heard and determined unless in regular term time.

Act 102, p. 181, of 1873, is to the effect that the judges of the Second District Oourt in this State, outside of the parish of Orleans shall have authority to try, at chambers, rule upon any delinquent or defaulting tax collector and sureties, as provided by law, and that it shall be their duty, on the application of the District Attorney, within ten days, to proceed in a summary manner to try and determine the same. (Sec. 1 and 2.)

In 1882, by Act No. 96, Sec. 76, the Legislature, considering that the delay of ten days was too long, shortened it to three, and in 1888, by Act No. 85, Sec. 78, provided likewise.

Laws are repealed or amended either expressly or impliedly. As a rule, a general statute, without negative words, will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. The reason and philosophy of the rule is that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute, in general terms, or treating the subject in a different manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions unless it is absolutely necessary to give the latter such a construction in order that its words may have any meaning at all. Sedgwick on Construction of Law, p. 98, ed. 1874; State vs. Kelly, 12 An. 805; St. Martin vs. New Orleans, 14 An. 113.

There is nothing in the Acts of 1882 and 1888 from which it can be to any extent deduced that when the Legislature enacted them it intended to do away with that portion of the Act of 1873 which required the trial of rules against tax collectors at chambers, when it could not take place during term time.

Those acts were not designed to repeal uno flatu all previous legislation, but to affect only anterior inconsistent laws, and left unimpaired laws on the same subject matter.

Far from conflicting with the Act of 1873, they are in perfect harmony with it, and must therefore coexist and be construed together.

See. 54 of the Act of 1888, to which the District Judge alludes, does-not sustain his course. It gives to a tax collector the right to proceed summarily by rule against a person assessed, as well during' vacation as in term time.

It is no legislation relative to proceedings against delinquent tax collectors, and if it were, it would warrant expressly such proceedings at chambers. It regulates only proceedings against a person assessed. Indeed, if the Legislature wills that such party shall be proceeded against summarily, even during vacation, how much more reason is there that a delinquent tax collector should be brought to account as summarily and promptly as practicable, in order to protect and save as much as possible the public revenue and the State Treasury.

The defendant judge relies also, on the ruling in the case of the Police Jury vs. Manning, 16 An. 182; but it does not bear out hiS’ position. The law left a District Judge a discretion to try cases of expropriation, either in term or during vacation, although they were to be heard and determined summarily; while, under the Act of 1873, it is made his duty to try rules against defaulting tax collectors, during vacation, when the same can not be tried during term time.

The previous court well said that the purpose of the law in permitting the trials of such rules either in terms or between terms, in court or in chambers, was celerity, 31 An. 739; and the present court in a kindred case, has said that the law regulating the relations between the State and the gatherers of her revenues is of extreme rigidity and must be strictly enforced. 37 An. 718.

The law leaves no discretion to a District Judge as to the time when such rules must be tried. If the court is not in session, the District Attorney has a right to demand, and it is the ministerial duty of the judge to order, that the rule be tried at chambers, after1 three days’ notice.

It is therefore ordered that the mandamus herein asked, be made peremptory.


text:
    No. 10,510.
    The State ex rel. Miss Fanny Freret vs. Fred. D. King, Judge Civil District Court.

      Mandamus does not lie to compel aDistrict Judge wlio has affirmed a judgment sustaining a plea to the jurisdiction, to pass upon the merits oí the controversy in the suit brought before the lower court. Such merits are not before him for review, on an appeal from, a judgment, on the plea, by the inferior tribunal.
    An appellate court tries cases before it, only in the manner and to the extent that they were tried below.
    ^PPLI CATION for Mandamus.

      B. JR. Forman for the Relatrix:
    1. The Sheriff seizing real property under a fl.fa. and a fortiori, the purchaser can eject a tenant who occupies at a monthly rental of less than $100, in the city court. Ere dr i ch s vs. Skinner, 33 An. 110.
    2. The tenant is bound to attorn to the Sheriff and to the purchaser at Sheriff’s sale, and does not cease to be a tenant and subject to the obligations of a tenant to the Sheriff and the purchaser at Sheriff’s sale. Summers &Brannins vs. Clark, 30 An. 196; Anderson vs. Comoau, 33 An. 1119; Dickson vs. Dickson, 33 An. 982.
    .3. Where a tenant at a monthly rent of less than $100, sets up a promise of renewal for two years, at $70 per month, the city court has jurisdiction of an ejectment suit against him. Carl. vs. Judge, 37 An. 380.

      Chas. G. Ogden contra.

   The opinion of the court was delivered by

Bermudez, O. J.

This is an application for a mandamus.

The relatrix complains that the District Judge illegally refuses to pass upon the merits of a controversy pending before him on appeal from a city court; that his duty is to determine the matter at issue in said litigation, and that his failure to do so is a denial of justice.

The District Judge returns that he has determined the only matter brought up for review by affirming the judgment rendered below, and he refers, in amplification, to the reasons assigned by Mm, in writing, conducive to his decree.

It appears that the relatrix, claiming' to be the owner of certain real property occupied by one Balfour, instituted before a city court proceedings to eject him therefrom, and that, in defence, he claimed to. have a lease thereto for one year more at $32 per month, and. thereupon pleaded to the jurisdiction of the city court.

After hearing, this defence was sustained and the suit dismissed.

The plaintiff then appealed to the District Court, and the defendant Judge to whom the case had been allotted, concluded, after hearing, to affirm the judgment appealed from.

It is settled by repeated rulings of this court, that whenever, in an ejectment suit, the defendant sets up a lease, the city court has jurisdiction to determine of the existence and extent of such lease, and to take or not jurisdiction over the merits of the controversy, according to circumstances. 33 An. 146; 34 An. 1142; 37 An. 380.

This court can not be called upon to determine now, whether the city court decided correctly or not, when it held that it had no jurisdiction, or whether the District Oourt erred or not in affirming the judgment complained of.

A party dissatisfied with the'judgment of a city court refusing to take jurisdiction is not left without a remedy. He can appeal from such judgment, if the case is appealable, and have it reviewed by the appellate tribunal, which would be bound to affirm or reverse, and then remand.

When such court has 'passed upon such matters, it has exhausted its powers, and it can not be asked to determine the merits of the controversy in any contingency, when such were not before him on the appeal. 39 An. 665.

A District Court is both an appellate court and a court of original jurisdiction, vested in each instance with marked distinct attributions. The powers which it exercises as the one, it can not exercise as the other. State ex rel. New Orleans vs. Voorhies, Judge, 41 An. 540.

An appellate court tries cases before it only in the manner and to-the extent that they were tried below. C. P. 1129, 598, 895.

In case of a reversal in a suit like the instant one, it could not pass upon the merits of the litigation, for the reason that the merits have not been determined below and would have to remand.

In case of affirmance, there would be no merits to determine, as by its judgment the District Court would simply say that the city court was right in declining jurisdiction.

Should the party concluded by the affirmed judgment sustaining the plea to the jurisdiction still remain dissatisfied, he would not be remediless.

If the city court has no jurisdiction, the District Court would surely have, as one of original jurisdiction, and it would be its duty to pass upon the merits of the ejectment suit.

The District Judge is therefore beyond reproach.

It is therefore ordered and decreed that the application herein for mandamus be refused with costs.