author: Wyly, J. Taliaferro, J.

text:
    No. 1561.
    F. A. Boyle & Co. v. Kittredge & Ewing.
    Whore an open account is prescribed on its face, and the evidence fails to establish an interruption, the plea will prevail.
    A PPEAL from the Third District Court, parish of Lafourche. Gates, lx. J.

      J3. J. Sage, for plaintiffs and appellants, Gentile & IF hitting-ton, for defendants and appellees.
   Wyly, J.

Plaintiffs sued tlie defendants on an open account for plantation supplies sold tliern on fourth, day of March, 18G1. Defendants pleaded the prescription of three and five years.

There was judgment in the court below in favor of defendants and plaintiffs have appealed.

The account seems to be prescribed on its face, having' been made on fourth March, 1861', and not sued upon till twenty-ninth March, 1867, when the defendants wore cited.

Plaintiffs have attempted to prove the. account was acknowledged by one of the defendants, Kittredge, in March, 1865.

They have offered but one witness, John H. Polhaus, who testifies as follows: “In or about the month of March, 1865, Dr. Kittredge informed me in New Orleans, when I asked him about the bills, that he would pay out of that year’s crop. He said if he made a good crop he would pay it that season.”

This testimony is contradicted by the evidence of Dr. Kittredge, who testifies as follows: “ I reside in the parish of Assumption in this State. The Areal and Raceland plantations are situated in the parish of La-fourche, about thirty or forty miles from my residence, more or less. .These plantations belong to Kittredge & Ewing, and they are controlled almost entirely, and are supplied by Dr. Ewing. I am a member of the firm of Kittredge & Ewing. I.do not supply these plantations at all. I go to these plantations sometimes once a year and sometimes once, every three or four years. About the time stated by Mr. Polhaus in his interrogatory, I was present at Mr. Polhaus’ counting house purchasing of him a large invoice of pork and flour for my use at Elmore plantation, my residence, and while there the conversation between us was in regard to the Areal and Raceland plantations. I observed to Mr. Polhaus that those plantations had been nearly destroyed by the Confederate and Federal troops, and that instead of making anything since the war began, we had been out of pocket some twenty thousand dollars, but this year (1865) we had put in a large crop of cotton, and expected to make a good profit, provided we succeeded in our crops, and if so we might be able to pay any just and valid claim they might have against us. Mr. Polhaus then observed to me that Mr. Boyle had some claims against these plantations without showing any specified account of such claims. I answered him that I did not know anything about these claims; that Dr. Ewing was the man who attended to that, and that he must go to him. I did not acknowledge these accounts and had no idea of doing so, for I knew nothing of the articles charged therein and consequently I could not know anything about them.”

The testimony of Polhaus is not sufficiently positive to establish the interruption of prescription. He does not state what particular bills were acknowledged by the defendant, nor does he state that he showed the bills or accounts to the defendant, Kittredge, and that he renounced the prescription and promised to pay them.

The testimony of Dr. Kittredge invalidates the evidence of this witness. He states positively that he did not acknowledge the accounts and had no idea of doing so. We think from the evidence that plaintiffs have failed to establish the interruption of the prescription of three-years pleaded by the defendants, and that that plea must prevail.

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

Oh Rehearing.

Taliaferro, J.

The principal inquiry in this case is, was there a renunciation of prescription by defendants, or either of them, as contended by plaintiffs ? The facts pertinent to this inquiry seem to be that in March, 1865, in New Orleans, at the-counting house of Polhaus, the witness of plaintiffs, a conversation ensued between him and Kitt-redge, one of the defendants, in regard to some unpaid accounts due by Kittredge & Ewing to F. A. Boyle & Co. In his answer to the Sixth interrogatory propounded to him by plaintiffs, Polhaus referring to the time at which this conversation occurred says: “ In or about the month of March, 1865, Dr. Kittredge informed me, in New Orleans, when I asked him about the bills that he would pay out of that year’s crop; he said that if he made a good crop he would pay it that season.”

It appears that at the date of the accounts sued upon (March, 1861), the witness was the book-keeper of the plaintiffs. He annexes to his answer to the third interrogatory copies of the bills of plantation supplies, forming the claim upon which the suit is founded. When he informs us afterwards that he asked Kittredge “about the bills” we think it fair to conclude that the character and amount of this specific indebtedness was in some definite manner made known to Kittredge, although, in his own testimony he says, “ Mr. Polhaus then observed that Mr. Boyle had some claims against these plantations, without showing any-specified account of such claims. I answered him that I did not know anything about these claims, that Dr. Ewing was the man who attended to that, and that he must go to him.” Here is a clear admission that he was informed of the plaintiff’s claims, although he states that no specified account was shown to him.

The counsel of the plaintiffs in their analysis of Kittredge’s reply to Polhaus, given by the latter in his answer to the sixth interrogatory, find two distinct promises: First, the declaration that “ he would pay out of that year’s crop,” and secondly, that if he made a good crop he would pay it that season.” We see no ground for thus dividing the expressions used by the defendant. All that he said on the subject of plaintiffs’ claim was said at one time, in the same connection, and on the same occasion. The words used were uttered under the same continuous expression of thought. They must be taken entire and in the sense which results from the whole together. The counsel on the part of the defendants make the point that the amount of the alleged debt exceeds five hundred dollars, and that the testimony of a single witness is insufficient, without corroborating circumstances, to establish a renunciation of prescription,

Théí'é i’á ¿ó evidence iá the record bearing iipon tlié giát oí the controversy, búi íhfe téktimony of tlié witness Polháus and tile defendant Kittrédge híiuself. The plaintiffs’ coünsel ehdéávof to show that on the subject oí the proinise the testimony Of the iattOr Is corroborative of that of the former. We cannot so construe it. Kittre'dgé in the conversation with Polhaus represents himself as having said to the latter: We have put in a large crop of cotton and expect to make a good profit provided vie succeed in Our crops, and if só wé might be able to p'ay any just ántl valid claims they might liávé against us.” This Seems to have been ’spoken in reference to the indebtedness of the. plantations generally. More especially in i'efer'ence to the plaintiffs’ claim, he said, in addition to whát we have already quoted: “I did not acknowledge these accounts, and I had ho idea of doing so, fór I knew nothing of the articles charged therein, and consequently Í could not know anything about them.”

We cannot find in the language used any direct, absolute promise to pay in any event. On the contrary, the promise was made with a condition, and it cannot be taken against the defendant as a clear voluntary renunciation of the prescription which' had accrued.

The conclusions we make render it unnecessary to pass upon the remaining point's presented. After a careful examination of the case in the aspects to which our attention has been invited, we are not con-, vinced that any change should be made in the first decision.

It is therefore ordered that the former decree of the court rendered in this case remain unaltered. 1 Rob. 336 ; 5 An. 340.


source: Caselaw Access Project

author: IIowELL, J.

license: Public Domain

text:
    No. 2115.
    Bank of Kentucky v. John East.
    Whore a promissory note is prescribed on its face and no interruption is shown, the plea ^ill prevail. Rabel v. Pourciau, 20 An. 13L.
    from the District Court, parish of East Feliciana. Posey, J.

      IfeVeá '& Hunter, for jilaintiff and appellee. Pace, Poster <& P. T. Merrick and Cross & liar die for defendant and appellant.
   IIowELL, J.

This is a suit instituted in January, 1868, on a promissory note due on the nineteenth January, 1862, to which the defendant set up the prescription of five years.

Prescription accrued on the nineteenth January, 1867, and no legal interruption is shown. C. C. 3505; Rabel v. Pourciau, 20 An. 132; Smith v. Stewart, lately decided.

It is therefore ordered that the judgment appealed from be reversed and that there he judgment in favor of deféndant with costs in both eourts.


author: Hówell, J.

text:
    No. 1298.
    Mrs. L. J. Noland v. Mrs. M. C. Sterling.
    Where suit was brought before the TJnited States Provisional Court, but not decided before that tribtmal ce’ased to eiisfc, between p irtio's residing in this State, the plea of lis pendens will not prevail in a suit before the State Courts on the same obligation and between the same, parties-, on the ground that both’i>*rties being residents of the State the case" could not be transferred to the United States Circuit Court.
    tiie District Court, parish of West Feliciana. Cooley, J.

      Wiekliffe & Miller, tor plaintiff and appellee, W. J). Winter, for
    defendant and appellant.
   Hówell, J.

This suit is brought on h promissory note 'alleged to be made by defendant’s agent to thé ofde't of and duly indorsed by Mr. G-. S'. lIcRc'a, tó which 'defendant pleaded the exception of Us pendens, averring that a suit against her by plaintiff on the same note is pending in the United States Provisional Court.

This exceptióh Vas maintained by ótir predecessors, and on the application of the plaintiff a féliéarihg was granted.

As the suit is one which could not, under the provisions of the act of Congress, twenty-eighth July, 1866, be transferred from the United States Provisional Court tb the United States Circuit Court, being: between citizens of this State, the plea cannot prevail, and it was therefore properly overruled by the judge a quo. In the answer the defendant denies all the allegations of the petition, and especially the ownership of plaintiff and the indorsement of the payee. An examination of the evidence in the record does not bring us to a different conclusion from the District Judge, whó considered the authority óf the agent tó mhke the hete and the indorsement of the payee sufficiently established,

judgment affirmed.


author: Ludei.ing, C. J.

text:
    No. 2172.
    Widow J. C. De St. Romes v. D. B. Macarty.
    To dispense with citation of appeal the motion must be made in open court at the same term 'ÓÍ the ‘cburt at Which the judgment i's rendered.
    from the Fourth District Court for the parish of Orleans. Theard, J.
    Á. <£• M. Voorhies, for plaintiff and appellant, ITornor á Benedict, for defendant and appellee.
   Ludei.ing, C. J.

The motion to dismiss the appeal must he sustained. The judgment appealed from was rendered on the twenty-fifth January, 1868.

The order for an appeal was granted on motion in' open court, on the tWenty-third Of Jañúai'y, 1869. There is iió citation of appeal. It is only when the ordér for ah appeal is granted' on motion in open court at the sainé term Of the court at which the judgment was rendered that such order dispenses with citation. Act of 1843, sec. 1, amending article 573 C. P. See acts of 1866, p. 160.

It is therefore ordered that the appeal he dismissed.

Rehearing refused.


author: Howell, J.

text:
    No. 2045.
    Samuel Lee v. J. F. Goodrich, Tutor, et als.
    Where a mandate has issued from the Supreme Court at the instance of one of the parties, to the clerk of the District Court, to amend his certificate so as to conform to the fact and show that all the evidence adduced on the trial is not contained in the record, and the clerk answers that he is not aware that other evidence than that embraced in the note of evidence and included in his certificate was offered, the appeal will not be dismissed. The appeal will not be dismissed for want of citation where the appellee appears and urges other grounds for dismissal before that of want of citation.
    Where a debt has been contracted against an estate ior supplies furnished, bills paid, etc., by the commission merchant, and a partition of the estate is afterward made among the forced heirs without providing for the debt, suit may be brought by the creditor against the heirs, jointly at the domicile of the succession. The allegation in the petition that some of the heirs named reside in other parishes than that where the suit is brought will not give rise to the exception of domicile.
    from the District Court parish of Tensas. Hough,' J.

      Farrar & Reeves, for plaintiff and appellee. Aroni, Leech & Lewis, for defendants and appellants.
   Howell, J.

This case was submitted on the motion to dismiss, and the merits, with the plea of prescription, filed in this court. On the application of plaintiff’s counsel a mandate was issued, under the provisions of articles 898 and 899 C. P., to the clerk of the lower court, to amend his certificate so as to conform to the fact and show that all the' evidence adduced on the'trial is not contained in the record. In'answer to this order the clerk certifies that on the second trial of this cause, the attorneys of the defendants withdrew in open court, and declined acting further in the suit, and plaintiff alone was represented by counsel, who required no note of evidence to be taken, and that it is not within the clerk’s knowledge that any more evidence was introduced than is contained in the transcript of appeal, and which comprises the documents introduced and the note of evidence taken at the first trial.

With this showing and the certificate affixed to the transcript before us, we are not authorized in concluding that all the evidence has not been brought up, and dismissing the appeal for such cause and the alleged want of a note of evidence. The informality of citing the attorneys of the appellee (the third ground of dismissal) is caused by the appellee’s making appearance and urging other grounds for dismissal before that of a want of citation.

The motion to dismiss should be overruled.

Two of the defendants excepted to the jurisdiction of the court, being described in the petition and sued as residents of other parishes, after the partition of the succession against which the claim in suit originated. Such a suit is expressly authorized by the thirteenth section of the act of 1828, page 156, which we are not aware has been repealed. The exception was properly disregarded. -

We are of opinion, however, that under the circumstances justice requires the cause to be remanded to enable the parties to present their rights more satisfactorily, and offer evidence on the plea of prescription. It is evident that the defendants had not the aid of counsel on the trial below, and the judgment seems to be erroneous in including eight per cent, interest from' March 23, 1861, to January, 1866, as part of the principal and legal' interest on the total from the latter date. Conventional interest must be fixed in writing. C. C. 2895. The custom of merchaiits cannot change this law.

Interest upon interest cannot be recovered unless it be added to the principal, and by another contract made a new debt. No stipulation to that effect in the original contract is valid. C. C. 1931. The evidence does not enable us to regulate and allow the interest on the several and successive annual accounts according to, these principles of law, admitting the correctness of the claim to be otherwise proven.

It is therefore ordered that the judgment appealed from be reversed, and this cause remanded to the lower court to be proceeded in accord-in to law. Costs of appeal to be paid by plaintiff and appellee.


author: Howe, J.

text:
    No. 1427.
    Robert B. Mitchell v. John Young et als., Catherine Glynn.
    Want of duo diligence in mailing demand of tlie maker of a promissory note at maturity ’will discharge the endorser.
    A promise hy the endorsor -to pay the note, made in ignorance of his discharge, will not bind
    from the Third District Court of New Orleans. Fellowes, J.

      J. JB. Cotton, for plaintiff arid appellee. JS. 0. Kelly, for defendants and appellants.
   Howe, J.

The defendant, Mrs. Glynn, has appealed from a judgment rendered against her as indorser of a promissory note made in solido by John Young and others.

Her defense is that due demand was not made of the makers at maturity, and that as indorser she is therefore discharged.

It appears that the makers were steamboat men, and that they were, absent from New Orleans (where the note was dated and signed) at the time of its maturity. It is plain, however, that two of them had families and all places of residence in this city. One of them was the son-in-law of the appellant, and with his family resided at her house. The others lived in the neighborhood, and the residences of all might have been ascertained by inquiry of the indorser. From the fact that the notary served the notice of protest on the indorser personally, we infer that he might as readily have made inquiry of her as to the whereabouts of the makers — a demand from any one of whom would have been sufficient. 1 R. 119. '

The notary in Ms certificate of protest states that he made search and diligent inquiry for the matters, but could not find them or any other person that would pay the note for their account. On being examined as a witness for plaintiff, however, he states:

i( I made inquiry for the maicera, and was informed that the makers were steamboat men. Do not remember who gave me this information. I found parties who said they knew the makers, and from them I learned that they were steamboat men. In protesting this note I used the same diligence I do in all cases. I infer that the parties of whom I made inquiry knew the makers, from the fact of their stating that they were steamboat men. I do not remember whether I called on the indorser or not previous to delivering notice of protest. * * * I protested the note at the request of Mr. Barker. He gave me no instructions. I did not know to whom the note belonged.”

We think it clear that due diligence was not used in this case to find the makers of this note or some one of them, and make a demand of payment. 4 U. S. 18S; 1 Parsons on Notes 459, and notes; 1 Gray 175; 6 Met. 290 j 5 Duel- 82.

It is urged by plaintiff that after protest the indorser repeatedly promised to pay the note. It does not appear, however, that this promise was made by her with knowledge that she had been discharged, and proof of such knowledge is indispensable to establish her liability. 13 L. 368 j 1 Rob. 83; 17 L. 386 ; 7 R. 334; 5 A. 12.

We are of opinion that the liability of the indorser is not established by the record.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed as to the defendant, Catherine Glynn and that there be judgment against the plaintiff as in case of non-suit, plaintiff to pay the costs in both courts.


author: Ludeeing, C. J.

text:
    No. 1111.
    Succession of G. Ehrenberg.
    The formalities necessary to be observed to give validity to an olographic tostamenfc aro, that the will must be written, dated and signed by the testator himself.
    4 pq,rty may dispose of his property by last will, by instituting an heir, or by naming legatees.
    ■Where the language of a testament loaves the meaning of the testator doubtful, acta done by him after its execution, may be taken into consideration as explanatory of, and in ascer-tainjpg his intentions. 0. 0. 1708.
    from the Second District Court of New Orleans. Thomas, J.

      Dálsheimer & Bucle and Iioselius & Bhilips, for appellant. M. O. Bunn, for appellee.
   Ludeeing, C. J.

Upon the decease of Gustave Ehrenberg, application was made to the Judge of the Second District Court of New Orleans to probate the following instrument as the last will and testament of said Ehrenberg, to witt

“New ORLEANS,September 15, 1859.

“ Mrs. Sopbie Loper is my heiress.

“ G. EHRENBERG.”

“New Orleans, March 16, 1861.

“ Tbe legatee’s name is correctly spelt Loeper. »

“G. EHRENBERG.”

On tbe back of tills instrument is written tbe following:

“Ebrenberg’s will, to be opened by S. B. Patrick, wbo will see it executed. Á copy of tbis will is left in tbe bands of tbe beiress.”

Tbe Judge refused to probate tbe act, on tbe ground that it was not a testament — that there was no disposition of property ; that the language could not be regarded as an expression of his will that Mrs. Loeper should inherit bis jn'opcrty.

From tbis ruling an appeal has been taken. A testament is an act clothed with certain formalities, by which tbe last will of the testator is manifested, in relation to tbe disposition of bis property, after bis death. It is proved that tbis instrument is entirely written, dated and signed by G. Ehrenberg. It is, therefore, clothed with tbe formalities required by law for an olographic testament.

The Code declares that one may dispose of bis property by will, “in any manner whatever, whether he has instituted an heir, or only named legatees.” C. C. Art. 1563.

And we are directed by tbe Code that, “ when, from the terms made nse of by the testator, bis intention cannot be ascertained, recourse must be bad to all circumstances which may aid in tbe discovery of his intention.” C. C. Art. 1703 j 1 An. 444 ; 2 An. 580.

If, then, any doubt be entertained in regard to wliat the deceased intended by the terms “ Mrs. Loeper is my heiress,” we are authorized to refer to his acts, in connection with this will, to learn the sense in which he used the words. More than a year after Ehrenberg made the will he wrote on the same sheet of paper, and below the will, “ the legatee's name is correctly spelt Loeper; ” and on the back of the document is endorsed, in his handwriting, “ Ehrenberg’s will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in, the hands of the heiress.”

It is certain that Ehrenberg intended to make a will, and that he intended that the act in question should be probated and executed as his testament. It seems to us equally certain that the desire, will, of Ehrenberg was, that Sophie Loeper should have his property after his death, inherit it, that she should be his heir ot universal legatee. The testator’s intention is the object to be ascertained, and when learned beyond a reasonable doubt, it is the duty of courts to enforce it, if the dispositions be not reprobated by law. D. 33; L. 10; T. 71, 2 §; 7 An. 395 ; 4 La. 425; Fuselier v. Masse et al.

' It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the act in question be and is hereby declared to be the testament of Gr. Ehrenberg j and that, as such, it be executed, after the formalities required by law shall have been complied with; and that, for this purpose, the case be remanded to the District Court. It is further ordered that the succession pay the costs of this appeal.


author: Wyly, J.

text:
    No. 2166.
    Isaac Misner v. Heirs of D. Fulshire et al.
    At a probate salo of real estate belonging in part to minor heirs by and with tho advico and authorization of a family meeting, approved by the under tutor, the purchaser is bound to pay the price bid. The omission to malee the major heirs parties to the p roceedings for tho order of sale is cured by their failing to mahe objection before the sale.
    _£3l PPEAL from the Fifth District Court, parish of East Baton Rouge. Posey, J.

      While & liobertson, for plaintiff and appellant. Stafford & Buckner and Joseph Joor, for defendants and appellees.
   Wyly, J.

Plaintiff sues to recover the price paid by him to the sheriff of East Baton Rouge for a tract of land adjudicated to him at the succession sale of Mrs. Domatilde Fulshire, deceased, on account of alleged defects in the title, and he enjoins the sheriff from paying over the proceeds of said sale to be partitioned among the heirs.

He urges various irregularities in the proceedings of the family meeting, and in the order of sale, as calculated to impair the title and relieve him from his obligations under the adjudication.

The defendants contend that the plaintiff has complied with the terms of adjudication by’paying to the sheriff the price, but refused to accept tho deed and receive possession of the land which they tendered him. They deny that there are any defects in the proceedings which invalidate the title of plaintiff; that the tutor cannot complain because the sale was ordered on his own petition ; that the order for the sale of the minors’ interest in said land was regularly decreed upon the advice of a family, meeting with the approval of the under tutorj that the major heirs, who were not made parties to the sale, cannot contest its validity, because by applying for the partition of the proceeds of said sale and by appearing in this suit to resist the demand of plaintiff, ‘they virtually ratify the sale and are estopped from setting up any adverse claim to said property.

The district judge investigated the case very fully and gave judgment for defendants. We think the evidence sustains his judgment.

The payment of the price and the adjudication completed the contract of sale and the informalities preceding the sale were susceptible of remedy by ratification. The major heirs should have been made parties to the sale, but, in our opinion, they have waived their right to attack it by claiming the price of the purchase.

Plaintiff relies upon the decision in the matter of the succession of J. G-. Weber, 16 A. 420. In that case the property was offered for sale at the instance of the tutor of the minor heirs, by an order of the probate court, without the advice of a family meeting, and tho court held that there was a radical defect in the title and the purchaser properly refused to pay the price.

In the case we are considering, the order for the sale was based upon the advice of a family meeting duly convened by the tutor, approved by the under tutor, and the adjudication was made in pursuance of the order of sale thus granted.

The authorities cited by plaintiff do not sustain his demand.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: TaliafeeRO, J.

text:
    No. 1520.
    Joseph Keller v. Joseph A. Ruiz and Wife.
    A married woman may bind her separate estate for tho debts of her husband by complying with the provisions of the act of the Legislature of 1855, approved March 15, No. 200, entitled “An Act to enable married women to contract debts and bind their paraphernal or dotal property.”
    from the Sixth District Court, of New Orleans. Duplantier J.

      JeromeMeunicr, for plaintiff and appellee. T. A. Barflette, for defendants and appellants.
   TaliafeeRO, J.

The plaintiff, as owner and holder of a promissory note for twenty-ñve hundred dollars, executed by the defendants and secured by mortgage, proceeded via executiva to collect it. An order of seizure and sale of the mortgaged property was rendered, and from this order the defendants have taken a suspensive appeal. The note is in these words:

$2500. New Oeleasts, September 21, 1866.

“ One year after date we promise to pay to the order of ourselves two thousand five hundred dollars, value received, with interest at the rate of eight per cent, per annum from date until paid.

(Signed) “J. A. RUIZ.

“FANNIE RUIZ.”

“ To authorize my wife. (signed) JOHN RUIZ.”

Endorsed — signed—“ J. A. Ruiz — Fannie Ruiz.”

“ To authorize my wife. (signed) JOHN RUIZ.”

The note has across its face the notary’s paraph ne varietur with concurrent date.

The defense is placed mainly upon the ground of the incapacity of a married woman to bind herself for her husband’s debts, and reference is made to article 2412 C. C., and to numerous authorities. We find from the record that in this case the wife has availed herself of the benefit of the second section of the act ot 1855, removing, under certain conditions, the disabilities expressed in the several articles at fbe Code and the decisions relied upon in the defense. We conclude therefore that in the present case, Mrs. Rúiz is hound by thé obligation for the enforcement of which the order of seizure was obtained. . • •

it is therefore ordered,, adjudged' and decreed that the judgment appealed from be affirmed; that this appeal be dismissed at the cost of the appellants, and that the plaintiff and appellee bé authorized to proceed under the order of seizure and sale, according to law Rehearing' refused.


author: Taliaferro, J.

text:
    No. 1440.
    Noble & Kaiser v. J. L. Warner.
    Where a steamboat is sequestered ia a suit against the owners, and released on their giving a bond conditioned that they will not make any improper-use of the property, and that they will faithfully present it after definitive‘judgment, the judgment creditor, after a final judgment has -been rendered against the boat and owners, may proceed directly on the bond without observing the formalities of issuing execution against the owners and having it returned nulla bona.

    from the Sixth District Court of New Orleans. DuplanUer, J.

      B. Egan, for plaintiffs and appellees, Emerson i& ffroiu, for defendant and appellant.
   Taliaferro, J.

Nohle & Kaiser in Jnne, 1861, brought suit against Wm. Buchanan and J. R. Shannon as owners of the steamboat Burton for $434 .38, with five per cent, interest from judicial demand, and soquéstered the boat, claiming a lien and privilege upon it for supplies furnished. They obtained judgment in February following in conformity with the prayer of the petition. On the seventeenth of dime, 1861, kb on after the seizure of thé bo'at, Biichanañ, the only ostensible owner of the boat released the sequestration by giving bond as required by law in such cases, and Warner, the defendant in this suit became his surety oh the bond. The present suit is against Warner upon this bond of release. The plaintiffs claim in this suit the amount of their judgment in the suit against 'Buchanan and others v. owners of the steamer Burton, and in addition the sum of $159 45 costs of suit, with legal interest on that amount from fifteenth of February, 1862. The plaintiffs had judgment as prayed for and the defendant has appealed.

The defendant filed exceptions to the proceedings as premature, alledging that the writ of fieri facias referred to in the petition was returned before the expiration thereof and that the requisite legal formalities had not been observed. The exceptions were cumulated with the answer.

The chief -ground of defense is that -prior to the issuing of the fieri facias the steamboat in the spring of 1862, was seized and taken pbs- ' session of by the Confederate forces a%áinst the consent, protest and remonstrances of the defendant. That said boat was kept in the possession of those forces until about the twenty-sixth dáy of April, Í862, wlién silo wás c'aptnred by tlie Federal forces and by them kept 'against the will and protest of the defendant until she was sunk, destroyed 'and totally lost prior to the issuing of the writ of fieri facias. ■ The defendant further set out that the owner of the boat is prosecuting a claim ágáinst the United 'States for the value of the boat, and that he has tendered the plaintiffs a conveyance of so much of said claim as will fully pay the plaintiffs’ debt, interest and costs, which offer and tender they have refused.

The defendant argues that ás á condition precedent to refcovery from the surety in this casé it must be shown that an execution issued and whs regularly returned millit bona, and contends that the return was prematurely made. We find no fieri facias in the transcript. The record in partis somewhat meagre and unsatisfactory. It sufficiently appears, however, that an execution whs issued. The judgment in favor of plaintiffs against 'the “ Burton” and owners was rendered on the fifth of February, 1862, án appeal whs taken and" a decree rendered by this court oh the nineteenth cif ¿Tune, 1865, confirming the judgment qf the lower court. See 20 An. p. 121. There is nothing to show whether the appeal was suspensive or devolutive. If suspensive, it was out of the power of plaintiffs to proceed with an execution before the seizure of the boat by the military authorities; and to issue it after the final judgment on appeal, would have been a vain and useless thing so fiir as relates to the boat, which long before had been destroyed. But the plaintiffs charge that the defendant after releasing the steamer from the sequestration sold her, and that the boat was not taken from the possession of defendant by the Confederate authorities and against their will. The defendant replies to this that the sale was made to a co-oWner, and that the 'sale made no change adverse to plaintiffs’ right. It seems that the original suit was brought against Buchanan and Shannon. In that case Shannon filed a general denial and made no defense whatever as owner or otherwise, and it is abundantly shown ■that he was not a co-owner of the boat at the time she was sequestered, but only the agent of the boat. Shannon testified in this case at great 'length. He says, “the boat stood in the name of William Buchanan át 'the time of the seizure by the plaintiffs in this suit. He was then the owner of the boat. I purchased from him about five months previous to Buchanan's death, which occurred in April, 1862. James D. Dunbar was a co-owher "with Buchanan at the time, of the seizure in this suit (Noble & Kaiser v. the steanicr Burton and owners). I was not interested in the boat at’tlie time of the seizure of Noble & Kaiser; I was however "the agent of the boat and I was furnishing her with supplies.”

It is fully made out by the evidence of Shannon and Biossat that the steanicr was seized by the Confedérate "authorities in April, 1862, when Shannon was the sole owner, having purchased her after the execution of the bond releasing the sequestration. The defendant had by the act of selling the boat put it out of his own power to comply with the condition of the bond which bound him to produce the boat when required, to be made subject to the payment of the plaintiffs’ judgment. The boat was seized by the Confederate authorities while under the control of Shannon, the then owner, and the defendant’s plea of overpowering force, if available under a different state of facts,- falls to the ground. This court has, in several cases presenting analogous conditions, determined that the remedy was directly on the bond. The condition of the bond that the defendant should not make an improper use of the property, and that he shall faithfully present it after the definitive judgment,” was clearly forfeited and the plaintiffs were at liberty to proceed at once upon their bond without being compelled to pursue more dilatory and circuitous measures.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs in both .courts. See 1 An. 122; 10 An. 284 ; 4 An. 372 ; 7 An. 110; 9 An. 422 ; 9 Rob. 535; 2 An. 188.


author: Howéll, J.

text:
    No. 826.
    H. W. Livingston v. Bessie E. Gaussen, Administratrix.
    An executor or administrator cannot bind tbe estate be represents by making or indorsing a promissory note in that capacity, but be will be beld personally responsible for tbe amount, and,tbe bolder is not bound to allege or prove that tbe executor exceeded bis powers in order to bold bim personally responsible on tbe note.
    The bolder of negotiable paper made or indorsed by a party as executor, may institute bis action against sucb party individually, leaving to the latter tbe right to show that bo is not personally responsible.
    from the Second District Court of New Orleans. Thomas, J.

      O, If. Conrad & Sons, for plaintiff and appellant, Boselius & Philips, for defendant and appellee.
   Howéll, J.

This suit is brought against the legal representative of J. K. Elgee on a note made by him as executor of the estate of Kelso,” to the order of and endorsed by W. & D. Urquhart.

The defendant pleaded the peremptory exception that no cause of action is set out against Elgee individually, as he signed said note in his fiduciary capacity, and plaintiff could only sue the estate of Kelso.

In support of this exception, which was maintained by the judge a quo, defendant’s counsel quote the cases of Gillet v. Heirs of Rachal, 9 R. 276, and Bank of Louisiana v. Dejean, 12 R. 16.

In' these cases the representatives of the successions were declared not to be personally liable on notes signed by them in their fiduciary capacity, because, in defense, it was shown that they had not bound themselves individually, but had, to the knowledge of the plaintiff, simply given acknowledgments, in the form of notes, of debts existing at the opening of the successions represented by them. In each of the cases tlie general doctrine was distinctly recognized, “that an executor or other administrator, by making or indorsing a note in that capacity, cannot thereby bind the estate, but will make himself responsible for its amount,” that he “cannot, in any transaction in which he pretends to act as such, create any liability on the estate, or change the nature of its obligations, or increase its responsibility with regard to its outstanding debts, and if he do so, he will be personally bound.” This is the well settled doctrine in our jurisprudence on this subject. See 8 N. S. 451; 2 L. 385; 1 R. 119; 17 A. 17. And the question is, must the holder of a note made by an executor allege that the latter exceeded his powers and functions, in order to maintain an action against him personally 9

We think not. The powers of executors and administrators are conferred by law, and among them is not tlie power to make and indorse notes. When therefore they assume or exercise such a power, the presumption of law is against them, and the burden is on them to plead and show in defense that they are not individually liable. In the case of Russell & Barstow v. Cash et al., 2. L. 185, which was a suit on a draft drawn by the defendant Cash as “ executor of Moses Kirkland, deceased,” the charge of the District Judge to the jury, “that the allegations of the petition would not support an action against the executor in his individual capacity; he must be charged with having improperly and falsely described himself as executor after his functions had ceased,” was not sustained, and the court said, “the executor having no authority to bind the estate by drafts, bills of exchange or notes, the suit against him as representative of the estate cannot be maintained. * * * The defendant is however responsible, on the draft given, in his private capacity. The words, ‘executor of Moses Kirkland,’ added to his signature, can be considered in no other light but as -words of description, which neither add to, nor diminish the individual and personal responsibility of the party using themj’ and judgment was rendered against Cash individually, although he was sued only in his representative capacity.

In Flower et al. v. Swift, 8 N. S. 451, it said, “ as the executor cannot bind the estate by indorsement, it follows, that the liability resulting from those he makes, is personal.”

Mr. Parsons in his work on Notes and Bills, vol. 1, p. 161, maintains the same doctrine and says: “If an administrator or executor make, indorse or accept negotiable paper, he will be personally liable, even if he adds to his own name the name of his office, signing a note, for example, ‘A, as executor of B;’ for this will" be deemed only a part of his description, or will be rejected as surplusage.”

Wherever, therefore, negotiable paper is made or indorsed by a party as executor, the holder is not bound to consider it a mere acknowledgment of a debt of the estate, and required to wait for payment in the ordinary course of administration; but lie may institute Ms action against such, party individually, leaving to the latter the right under certain circumstances to set up a defense that he is not personally responsible.

It is therefore ordered that the judgment appealed from be reversed, the exception of the defendant overruled, and this cause remanded to be proceeded in according to law. Costs of appeal to be paid by defendant and appellee.


author: Ludeling, C. J.

text:
    No. 2014.
    Andrew H. Gay v. A. P. Marrionneaux et als.
    Whore an appeal has been, dismissed on the ground that all the parties interested in the judgment were not made parties to the appeal, and the same questions involved in the first judgment appealed from are again passed upon bofore the District Court, between the same parties in a judgment of homologation, and more than one year having elapsed from the rendition of the first judgment, it must he considered res judicata from which no appeal will lie.
    from tbe Fifth District Court, parish of Iberyille. Posey, J.

      Barrow & -Pope, for plaintiff and appellee. Palbot & Petit and Samuel Matheios, for defendants and appellants.
   Ludeling, C. J.

This is a suit to partition certain property held iij common by the plaintiff aud the defendants. A sale of the property was ordered by the District Court to effect the partition. Gay had been in possession of the property before the sale, and he presented to "the notary, who had been appointed to make the partition, a claim against the joint owners, amounting to ten thousand three hundred and sixty dollars, for improvements placed on the plantation at his own cost.

Opposition to this claim having been made by some of the joint owners, the matter was referred to the judge by the notary.

The court gave judgment in favor of Gay for the amount claimed, hut charged him thirteen hundred and five dollars for the use of the plantation, and referred the case hack to the notary in order that the partition might he completed. This judgment was rendered on the fifteenth day of May, 1867; an appeal was taken from the judgment, and this court dismissed the appeal on the ground that all the parties interested in the judgment had not been made parties to the appeal. Subsequently, on the seventeenth of July, 1868, this appeal was taken from the judgment homologating the partition. The only complaint made by tbe appellants is. tliat tbe amount allowed to Gay for improvements is incorrect. Tbis is tbe same thing which was decided in the judgment of the District Court on the fifteenth of May, 1867, and -the parties are the same. More than one year having elapsed since the rendition of that judgment the plea of res judicata,, interposed by t-lie plaintiff, must he sustained. 11 La. 497; 8 Rob. 195; 12 Rob. 319; 7 An. 530; C. C. 1270; C. F. arts. 539, 567.

It is therefore ordered that the appeal :be dismissed at the costs of the appellants.

• Rehearing refused.


author: IIoweix, J. Ludeling, C. J.

text:
    No. 1948.
    Stephen S. Fish v. T. W. Collens.
    In. c. suit where the right of offi.ce is involved, the appeal will not he dismissed where the failure to file the record within the time prescribed by law is not imputable to the appellant. Sec. 12, acts of 1601, page 22. •:
    In a controversy for an office the salary of which is fixed by law, it is not necessary lo aver or prove that the amount is above five hundred "dollars to give the Supreme Court jurisdiction.
    The election of a patty to an office does not depend upon the ineligibility of his competitor but .upon-the will of a majority or plurality of the legal voters of the district.
    from the Sixth District Court, parish of Orleans. Cooley, J

      JS. Mlleid, for plaintiff and appellant, JS. Howard McCaleb and JS.. JJermiidez, for defendant and appellee.
   IIoweix, J.

This is a contested election case, in which tho plaintiff has appealed from a judgment dismissing his action on exceptions pleaded by the defendant, who has, in this court, moved to dismiss the appeal on the grounds:

“Mrst. — Because this is a case in which the right to an office is involved and tho appeal herein taken from the judgment of the District Court was not made returnable to this court, nor was the transcript filed within the delay required by law.

“Second. — Because there is no allegation nor evidence sufficient to give this court jurisdiction rations materke over this cause, and to show that the amount in dispute exceeds live hundred dollars.”

1. On the first ground, it is contended that the appeal should, by the act of 1864, § 9, p. 20, have been made returnable, and the transcript filed within ten days after the judgment of the lower court.

The judgment was signed on the ninth of November, 1868, the motion for appeal made on the sixteenth of tho samo month, the appeal made returnable on the second Monday (fourtentli day) of December following, the transcript completed on the eighth and filed on the fifteenth of the same month. Under these circumstances we cannot say that the irregularity is imputable to tho appellant and he is consequently protected by the twelfth section of said act. He complied with the order of the* judge a quo, whose duty.it w'as to name tho return day in accordance with the law, and there is nothing to show that the appellant sought or obtained any advantage by delay. 10 A. 493, 7"8. See also acts 1866, p. 154,- §§ 13, 16.

3. As the contest is for the office of District Judge, the salary of which is fixed by law, we cannot see the absolute necessity of alleging or proving the amoxlnt involved. We know as well from tho statute, as we would, from an allegation or proof in the record, that the matter in dispute pecuniarily exceeds five hundred dollars. The election contested was, by the constitution, for judges who are to hold office for a term of four years. Arts. 84 and 154. The act No. 99 (acts of 1868) fixes the salary of the District Judges at $5000 per annum.

It is therefore ordered that the motion to dismiss be overruled with costs.

ON THE MERITS.

Ludeling, C. J.

The petitioner alleges that lie was a candidate for election to tlie office of Judge of the Seventh District Court of the parish of Orleans, on the seventeenth and eighteenth days of April, 1868; that the defendant and Thomas J. Earhart were also candidates for the same office; and that the defendant claims to have been elected to said office.

Petitioner avers that defendant is, and he was at the date of the election, ineligible to said office. The plaintiff further avers, that ho received the largest number of votes of any candidate eligible to the ofiee.

The prayer of the petitioner is, that T. W. Collens be declared ineligible to the office, and that the petitioner be declared duly elected Judge of the Seventh District Court of the parish of Orleans.

The defendant filed exceptions embracing many reasons why, he alleges, the suit should be dismissed. It will be necessary to examine only one of the grounds stated in the exceptions filed by defendant.

It is that the petition states no cause of action. We think the exception well taken. Staes v. Gastinel, 20 An. 114 and 20 An. 489.

The plaintiff does not allege that he received a larger number of the votes cast at the election than either of his competitors; but on the contrary, he admits that the defendant received a greater number of votes than he did. The election of the plaintiff did .not depend upon the ineligibility of his competitors to the office, but on the will of a majority or plurality of the legal voters of the district, expressed at the ballot box. It is unnecessary in this case to express any opinion as to whether the votes east for a person, who is notoriously known to be ineligible, should be rejected or not, as no such allegations are made in this petition.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, and that appellant pay the costs, of appeal.


text:
    No. 2102.
    State of Louisiana v. Watkins and Nelson.
    Iu criminal cases the Supremo Court has jurisdiction on questions of law only. Constitution, article 74. Questions of continuance, and the grounds of the motion to quash, depending solely on facts, cannot he examined on apppcal,
    from the District Court, parish of St Helena. Bilis, J. Bol-

      ivar Bdwards, District Attorney, for the State, O. J. Bradley, for defendants and appellants.
   Howell, J.

On the eighteenth day of May, 1868, the defendants Brandon Watkins and Peter Nelson were indicted by a grand jury in the parish of Livingston, for murder. In October following, a change of venue to the parish of St. Helena was obtained, where, on the twelfth of November, same year, a nolle proseguí was entered as to Peter Nelson, and a motion was made by Watkins, the other defendant, to quash the indictment on the ground that Darlin B. Cason, Perry Watts and other members of the grand jury who found the true bill, were incompetent jurors under the acts of Congress, known as the reconstruction laws, because they were not registered as voters of the parish of Livingston, which motion was accompanied by the affidavit of the accused for a continuance, to procure evidence to support and prove the allegations of the motion, the grounds for continuance being that he had just discovered that the said jurors were not registered as voters at the date of the said finding, and he had not had time to procure the evidence of their incompetency, which existed in the records of the parish of Livingston, and the said records could be obtained by the sixteenth of the month, four days. This motion was overruled, a bill of exceptions reserved and the trial resulted in a verdict of guilty, without capital punishment, upon which judgment was rendered, and two days thereafter sentence was pronounced, whereupon this appeal was taken.

The question of continuance as presented in the bill of exceptions and the grounds of the motion to quash, depend on facts of which we have no jurisdiction; and our attention is not called to, nor do we see any error on the face of the record.

Judgment affirmed.


author: Howell, J. This

text:
    No. 1885.
    Widow De St. Romes v. Levee Steam Cotton Press.
    Where A garnisheed on execution against B, a claim for which B is suing C, notice to B of the seizure is not necessary. The law only requires that notice of the seizure should haye heon given to 0.
    from the Fifth District Court of New Orleans, héamnont, J.

      JS. Billexil, for plaintiff and appellant. A. M. Voorhies and JS. Bermudez, for defendants and appellees.
   Howell, J. This

is an appeal from a judgment on a rule in the Fifth.District Court of New Orleans taken in this case, with which a ride in the Fourth District Court in the case of Judson and Montross v. Mrs. de St. Romes was cumulated.

The question presented is, whether or not the claim of plaintiff, Mrs. de St. Romes, in her suit against the cotton press in the Fifth District Court, was legally seized in the suit of Judson and Montross, H. Samory, subrogated v. Mrs. de St. Romes, in the Fourth District Court, before she transferred it to Eugene de St. Romes, the appellee.

Notice of the transfer and subrogation by Mrs. de St. Romes to Eugene de St. Romes, her son, was not served on the'Levee Steam Cotton Press until the ninth June, 1868, the day after her judgment against the cotton press, rendered on the thirteenth January, 1868, became final in the Supreme Court, and the day before it was filed in the lower court.

On the fifteenth January preceding (Í868), II. Samory, &nbfogat'ed; issued execution against Mrs. de St'. Romes in tlié suit'of Judsóñ ahd Montross against lier in tlie Fourtli District Court, and propounded interrogatories to the Levee Steam Cotton Preés, which, with the petition and citation were served personally on the president thereof on thé ñeit day (January 16, 1863).

On the twenty-third of the same month the préss, through its president, answered that it had sufficient funds of Mrs. de St. Romes in its hands to satisfy the judgment in favor of Judson and .Mohtroés, as to which they were interrogated, should the judgment rendered by the Supreme Court in her favor against the said press acquire the form of res judicata.

Notice of the transfer and subrogation by Judson and Montross of their judgment against Mrs. de St. Romes to H. Samory, issued on the fifteenth January, 1868, was served on Mrs. de St. Romes on the eighteenth of the same month.

According to the terms of the act of tho twentieth March, 1839, and ilie decisions in Hanna v. Bry, 5 A. 656, and Walker v. Creevy, 6 A. 535, the seizure in tho garnishment proceedings was effectual before the transfer,from Mrs. do St. Romes to Eugene de St. Romes. Tlie execution issued on tho judgment against Mrs. de St. Romes ; kor rights were seized in the hands of the cotton press, to which interrogatories were propounded; its answers as garnishee were received; the execution remained in tho hands of tho Sheriff, and when the judgment against the press became final a rule was taken on it to pay. In such a case notice to Mrs. do St. Romes of the seizure in tlie hands óf tho presé was not essential.

Tho transfer by Mrs. de St. Romes to Eugene de St. Romes not having been notified to the press, tho debtor, until théñinth June, 1S'6'8, was not binding on Samory, the creditor of the transferee. C. C. 2613.

It is therefore ordered that the judgment appealed from be reversed, and that the rule taken by II. Samory on the Levee Steam Cotton Press he made absolute, and that the Sheriff pay to H. Samory, subro-gated, the amount of the judgment in the ease of Judson and Montross, H. Samory subrogated, v. Mrs. de St. Romes, as deposited by the Levee Steam Cotton Press by order of the lower court.

Costs of this proceeding in both courts to he paid by the appellees.

Rehearing refused.


text:
    No. 2112.
    John Offutt v. W. W. Chapman and John McKowen. Same v. John McKowen.
    The burden of showing a renunciation of prescription of a promissory note after it has accrued -falls upon the holder.
    An indorsement of a payment on the note aftér-ifc is prescribed' is not sufficient to interrupt prescription.
    The parol testimony of the holder of a promissory note is not admissible to establish the in. terruption of prescription ; written proof- aloné is admissible to- establish the interruption. Acts of 1858, No. 208, sec. 4.
    from tlie Fifth Judicial District Court, parish of East Fe-liciana. Posey, J.

      Kvtnan & Lyons, for plaintiff and appellant. Cross & Hardee, for defendants and appellees.
   Howe, J.

These suits were consolidated in the court below. The plaintiff has appealed from a judgment dismissing his claims in both (tases.

The first of the suits is brought on the following obligation:

“ $1600. Received, Clinton, La., July 14,1860, of John Offutt, one thousand six hundred dollars, payable on demand.

“ W. W. CHAPMAN & CO. “per L. G. Chapman.”

(Indorsed)

“ Received of tbe within one hundred dollars. January 10, 1866.

“ JOHN OFFUTT.”

This is a promissory note. Parsons on Notes, vol. 1, pp. 23 24, and cases cited-.

Tbe second suit is brought to reeover the sum of $500 which plaintiff avers tobe due from W. W. Chapman & Co. for “money loaned,” the defendant, McKowen, being sued as a partner in that commercial firm.

Citations were served in tlie cases respectively January 12,1867, and May 8,1867, and among other defenses the. prescriptions of three and five years have been pleaded.

It appears by a comparison of the dates above given that both claims are prescribed. The note bad been prescribed upward of five months when the alleged payment was made on account, and tbe memorandum indorsed on it by plaintiff. The plaintiff was bound, therefore, as to that note, to establish a renunciation of prescription, and of this there is no legal evidence. Such renunciation can only be established by written evidence. Laws of 1858, No. 208, § 4.

It will not be seriously contended tllat tlie plaintiff can make such evidence for himself by Simply writing upon tbe instrument tbe receipt which appears to be indorsed upon it. Nor can tbe parol testimony of plaintiff on the record be permitted to establish a renunciation. The statute of 1858 is positive in requiring, the written proof.

The claim for money loaned was prescribed by tbe lapse of three years. C. C. 3503.

For the reasons given it is ordered and adjudged that tbe judgment appealed from be affirmed with costs.


author: Howelu, J.

text:
    No. 2075.
    N. K. Knox v. A. Duplantier et als.
    \Vhere more than one year lias elapsed from' tlie date of the judgment of the court a qua before the judgment of the Supreme Court is rendered dismissing the appeal, the appellant will not be entitled to a second appeal, the time having expired within which he could appeal.
    from the District Court, parish of East Baton Bouge. Posey, J.

      A. S. Serrón, for plaintiff and appellee, Favrot é Lemon, for defendants and aqipellants.
   Howelu, J.

A motion is made to dismiss this appeal on the ground that more than one year has elapsed between the date of the rendition of the judgment and that of the order of appeal.

The judgment was rendered and signed on the first day of December, 1866. On the same day an order of appeal in the alternative was granted, returnable according to law. On the eleventh of January, 1867, a bond for a devolutive appeal was filed below, and on the twenty-sixth of February following the transcript was filed ifi this court. A motion to dismiss was made and submitted, with the case on its merits, on the sixth March, 1867. This motion was not disposed of until the eleventh May, 1868, when the appeal was dismissed for a cause attributable to the appellant. An application.for a rehearing was made on twenty-fifth May and refused on twenty-second June, 1863. On the fourteenth July following (1868), the appellants obtained another ap-’ peal, returnable on the fourth Monday of February, 1869, and the transcript was filed here on twenty-third day of said month, when the present motion was made.

Behearing refused.

The appellant admits that the general tenor of decisions is in favor of a strict interpretation of article 593 C. P., which declares that no appeal will lie after a year has elapsed, to be computed as to residents, from the day on which the final judgment was rendered; but he contends that this case presents the strongest claims in favor of a deviation from the general rule of law, in the fact that he was deprived by the delay (after the motion was submitted) in the appellate court of the opportunity of claiming a second appeal within the year.

We might, possibly, be unable to resist the equitable force of this position if we were vested with any discretion in the matter, and appellants were wholly without fault. They exercised their constitutional right of appeal in due time, but by their own laches it proved to be ineffectual, and, as said in 3 R. 115, and 17 A. 238, we know of no law that recognizes an interruption or prolongation of the delay fixed by article 593 C. P. The right to an appeal in certain cases is an absolute right, but when once exercised its second exercise is contingent.

■ To admit that the time, during which the appellate court holds a motion to dismiss under advisement, will have the effect contended for, will necessitate tho admission that any other delay, not cansed by the appellant, will have the same effect, and tho adjournment of the court, the crowded condition of the docket and tho like will be causes for setting aside a positive provision of law. Wo deem it our duty to adhere to the law, whatever may be the hardship in particular cases.

Appeal dismissed.


text:
    No. 1467.
    J. Arrowsmith v. E. H. Durell, Mrs. De Pontalba, subrogated.
    A devolutive appeal from a final judgment docs not suspend or interrupt prescription pending tlie appeal. Acts of 1853, p. 250.
    "Where a law is clear and free from all ambiguity the letter of it must not be disregarded under tho pretense of pursuing its spirit. C. C. 13.
    The citation required by the act of 1853, page 250, in that tho judgment may be revived before it is prescribed, refers to the judgment rendered by the District Court, and not that of the Supremo Court.
    from tlie Fourth District Court of New Orleans. Theard, J.
    P. Soulé, L. Gharet and James Walker, for plaintiff and appellee. Johnson, Dennis, Legendre & Derault, for defendant and appellant.
   Howell, J.

The only question presented for our decision is, whether or not a devolutive appeal suspends or interrupts the prescription of a judgment under the act of 1853, p. 250.

By the letter of the statute, the question must ho answered in the negative. It provides that: “Hereafter all judgments for money, whether rendered within'or without the State, shall ho prescribed by the lapse of ten years from tho rendition of said judgment; provided, however, that any party interested in any judgment may have tho same revived at any time before it is prescribed by having a citation issued according to law to the defendant or his representative from the court which rendered the judgment, unless tho defendant shows good cause why the judgment should not he revived.”

The appellant, Mrs. De Pontalba, subrogated to tho judgment against the plaintiff, contends that the ten years only commenced running on the date of the rendition of the judgment by the Supreme Court, affirming the judgment of the lower court, on the devolutive appeal, which was pending about four years. She bases her conclusion on tho theory that the word'judgment in tho statute is used “in its largest .sense of a final judgment, a judgment putting an end to all'further contestation between the parties, and having the force of the thing adjudged, which is said of that which has been decided by a final judgment, from which there can he no appeal, cither because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it bas been confirmed on appeal.” C. C. 3522, sec. 9. And she suggests tlie anomalous consequence of a judgment becoming extinguished by prescription before a final determination of the rights of the litigating parties has been reached in the appellate court and the whole subject matter vanishing into thin air and leaving not a trace behind. Sho further urges that the doctrine of all the prescriptions libercmcli causa rests on .a presumption of payment arising out oí the silence of the creditor during the appointed time (C. Q. 3422, 3494), and that such presumption and silence cannot he said to exist while an appeal is undetermined.

In reply to all this, however forcible it may appear, we hare only to say that when a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit, C. C. 13, unless possibly following the letter may lead to an absurdity. The consequences suggested by appellant as possible, do not appear to us any more absurd than the assumption that a moneyed judgment will be permitted to remain for ton years unexecuted below, or undetermined in the appellate court.

The statute before us is, in itself, free from ambiguity. It says plainly that all judgments for money shall be prescribed by the lapse of ten years from the rendition thereof, unless revived before they are prescribed by having citation issued from the court which rendered them. Such citations cannot be issued from the Supreme Court, and consequently the statute docs not refer to the rendition of the judgment by the Supreme Court, but manifestly to that of the court of tire first instance. It does not say ten years from the finality of such judgment, but from its rendition, which in this instance was more than ten years prior to the issuing of the execution, and as the judgment had not been revived in the mode provided by the statute it was prescribed. It is not pretended that the judgment might not have been revived after its appearance on appeal and before the expiration of the ten years from its rendition in the lower court.

Judgment affirmed.


author: Howell, J. Howe, J.

text:
    No. 1512.
    William Gogreve v. John Windhorst. — William Schroeder, third opponent.
    Whore the value of a schooner, the ownership of which is in dispute, is shown to be aboye iiv* hundred dollars by the amount of the bond for injunction, and th9 amount of the appeal bond, the ajipeal will not be dismissed for want of jurisdiction. Constitution, art. 74.
    In a dispute about the ownership of a schooner, .the opinion .of.the Judge a quo on the questions of fact is entitled to great weight when sustained by the testimony offered and in thw record, without objection irom the opposing party.
    from Second District Court, parish of Jefferson. Cazahaf, J.

      Saucier & Michinard, for plaintiff and appellant. J". Hawlcins, for third opponent, appellee.
   Howell, J.

A motion is made to dismiss this appeal on the ground that there is nothing in the record showing that the matter in dispute exceeds five hundred dollars.

By reference to the record we find that, in obtaining an injunction against the sale of the schooner claimed by him, the third opponent gave a bond for $1200; that afterwards he had said schooner released on giving a bond for $1000; that about the time of the seizure one of the witnesses offered the defendant $1000 for it ; and that it was then estimated by the defendant at $2000. The appeal bond given by the plaintiff and appellant is for $1000.

From these facts and figures we think it abundantly shown that the matter in dispute (the schooner) exceeds five hundred dollars in value.

It is therefore ordered that the motion to dismiss be overruled with costs.

ON THE MERITS.

Howe, J.

The plaintiff in this case having, on the sixteenth November, 1866, obtained a judgment against the defendant, caused a writ of fieri facias to be issued thereon, under which the sheriff seized, as property of defendant, the schooner Matilda.

On the twelfth December, 1866, William Schroeder, third opponent, enjoined the sale, claiming to be the sole owner of the schooner by purchase from the defendant in March, 1866.

The plaintiff, in answer to the opposition, alleged that the sale from Windhorst to Schroeder, if any there was, was simulated.

Upon the trial of this issue, the third opponent established the reality of the sale to the satisfaction of the Judge a quo, and the opposition was maintained and the injunction perpetuated. No objection was made to the testimony adduced by the opponent, and it seems to sustain the judgment; and, in a case like this, the opinion of the Judge before whom the cause was tried is entitled to great weight. 6 La. 31; 10 A. 92; 561; 14 A. 224.

It is therefore ordered and adjudged that the judgment from which the plaintiff has appealed be affirmed with costs.

Rehearing refused.


author: Wvly, J.

text:
    No. 4455.
    Succession of Joseph H. Johnson.
    Xu homologating a tableau of distribution the judge can only order the executor to distribute the funds in his hands. He cannot order him to pay a particular fund to a crodifcor which he has previously ordered to be paid to another.
    The executor cannot be punished for contempt, in not paying a particular fund, when he hae paid that fund to another creditor under the order of the Court.
    from the Second District Court of New Orleans. Thomas, J.

      JElmore & King, for appellant. Hornor <& Benedict, for appellee.
   Wvly, J.

This appeal is taken by Charles E. Alter, a mortgage creditor of the succession of Joseph H. Johnson, from a judgment on a ride ordering the dative executor to pay over to him certain funds in his hands.

' This rule was taken on the executor, Crane, to show cause why he should not be imprisoned for contempt for not paying over the funds he was ordered to pay to said Alter by the last tableau homologated,

On the trial, the rule was made absolute, and the executor was required within three days to pay to Alter the balance of the funds on hand, say $674 28, less the costs due the clerk, which was accordingly-done.

Alter contends that the executor was required to pay him a larger sum, to wit: $11,000, by the judgment homologating the tableau; and that the Judge a quo erred in determining the rule, by not requiring the executor to pay him the full amount mentioned in the tableau.

It appears that the $11,000 mentioned in the tableau was derived from the sale of the property styled the “batture property,” which was purchased by W. H. Aymar; that his titles were subsequently decreed to be null, and he then took a rule on the executor requiring him to refund the $11,000 which he had paid for the property. The executor answered that he only had on hand of that sum $8804, and tile Court ordered him to refund that amount, reserving the rights of Aymar to the balance out of any funds that might afterwards come into the succession. We think the District Judge disposed of the rule for contempt properly. The executor had paid over all the funds in his hands except the $674 28, and this fund he has since paid in obedience to the rule.

The record shows that the appellant, Charles E. Alter, has received every dollar due him out of the funds in the hands of the executor. He had no claims upon the $8804 returned to Aymar by order of the Court. That fund remained in the executor’s hands from the sale of the “batture property” which was annulled, and was very properly returned to its owner.

It would have been strange for the District Judge to have punished the executor for contempt because, in obedience to the order of Court he refunded the money to Aymar.

We do not perceive the force of Appellant’s position, that the deiis'on on the rule had the effect of changing his original judgment. \Yu think his original judgment against the succession remains undisturbed.

In homologating the tableau, the Court could only order the executor to distribute the funds in his hands. It could not order him to pay to Alter the $8804 which had been previously paid to Aymar by order of the Court.

The Judge could not compel the executor to redistribute a fund which he had previously distributed under the order of the Court.

It is therefore ordered that the judgment of the Court below be affirmed with costs.


text:
    No. 2199.
    George Ruleff v. P. S. Nugent et al.
    Where the certificate of the clerk of the District Court shows that the transcript is incomplete and not such as will enable'the-appellate court to examine the case on its merits* the appeal will be dismissed on motion.
    from the Fifth District Court of New Orleans, Léatmont, J.

      Frank Haynes and T. A. Bartlette, for plaintiff and appellant, G. Moselius & Alfred Philips, for defendants and appellees.
   Howe, J.

The appellees move to dismiss this appeal on the ground that the record does' not contain as the law requires a full transcript of all the documents filed, evidence adduced, and proceedings had in the court below. C. P. art. 585.

The certificate of the clerk of the Fifth District Court is as follows:

That the foregoing one hundred and six pages with the record of the case of Mary A. Nugent v. Jotham Potter et als., appealed from the late Fifth District Court of New Orleans, and now of record in the Supreme Court of Louisiana, being No. 1750 of the docket of said Supreme Court, do contain a true, correct and complete transcript of all the documents filed and all the evidence adduced, and of all the proceedings had in the suit of George Ruleff v. P. S. Nugent,” etc., etc.

It is plain from this certificate that this record does not contain all that is necessary to enable us to examine the case upon its merits. The record can only he complete ,by adding to it some other record. From the answer to the motion, we infer that the portion absent from the record befóte us and contained in another record consists of sundry documents. If results that certain documents used at the trial of this ease are not in the transcript, and there is no consent under which we can refer to them as contained in some other- record. The appellants refer us to the eases of Bell v. Williams, 10 L. p. 514, aud Bouguille v. Dédé, 9 An. 292. The former does not seem to be in point, and the latter is a precedent for the views we have expressed, for in the case before ns there is uo consent of parties.

The appellants went' to trial upon the merits without taking any steps to correct the transcript.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused.


text:
    No. 1513.
    O. A. Sehneideau & Co. v. W. T. Pennington & Glidden, owners of Schooner Gipsey.
    Tfie fact of non-delivery of'goods,Shipped must be shown before the owner or shipper can recover their value from the carrier.
    from the Third District Court of New Orleans, Fellowes, J.

      George L. Bright, for plaintiffs, Mace, Foster éF. 'T. Meriiek, for defendants, Saucier & Miehinard, for intervenors and appellants,
   Taliaferro, J.

The plaintiffs claim from the defendants, master and owners of the schooner Gipsey, $1718 72 for supplies furnished and advances made to Pennington & Glidden and the schooner, for which they claim a lien and privilege on the schooner and the property attached. The defendants being absentees, the plaintiffs took out an attachment under which the vessel was seized, and by a subsequent order of court sold. The proceeds of sale, amounting to $5000, were held subject to legal distribution. Ashby, a creditor claiming priority of lien and privilege over the attaching creditors, came in by third opposition, praying to be paid his debt of $311 52 with privilege.

P. X. Barbot, also a third opponent, claimed to be a creditor for $3750 with superior lien to that claimed by the plaintiffs. The judge a quo rejected the claim of Barbot and distributed' the funds among the various recognized creditors, of whom the plaintiffs and the opponent Ashby were the principal, and directed the remainder if any to be paid over to the defendants.

Prom that decree the opponent Barbot appeals.

The contest is now solely between the defendants and Barbot. This opponent founds his claim upon a bill of lading which recites that on tiie seventh of April, 1865, twenty-five barrels of Bourbon whisky were shipped by P. X. Barbot on the schooner Gipsey then at Havana and bound for Matamoros, to be delivered at that port “ unto order or to assigns.” He avers that the whisky was never delivered, but was sold to pay the debts of the schooner. An invoice dated at Havana, April 6, 1865, shows that the twenty-five barrels of whisky were shipped from Havana to Matamoros by P. X. Barbot for joint account of the owners of the schooner and D. M. C. Hughes, and consigned to order. To the same purport is the certificate of Barney Pennington. The certificate further states that the note given by him at Havana to Hughes for-$700 more or less, was for the one-half interest in the shipment, and at the date of the certificate, October, 1865, was still unpaid. Hughes’ receipt for this note appears, showing that he had sold to Pennington a half interest in the adventure for $745 45. The receipt is dated April 8, 1865. This comprises the sum of the evidence taken on the trial of the opposition of Barbot and we do not see that his case is made out by it. He does not allege that he was the owner of the whisky, or that he had shipped it to his own order. The bill of lading in connexion with the invoice, does not we think establish the ownership to have been in him. Appended to the certificate of Pennington, as appears in the record, is an assignment by Hughes to Barbot “of the due bill annexed.” This transfer is dated • Havana, July 3, 1867, and doubtless refers to the duo bill given to Hughes by Pennington for the half interest sold to him in April, 1865. This operation shows nothing establishing ownership in Barbot of the shipment of whisky by the scliooner, nor does he show, as lie alleges non-delivery of the goods shipped. See 11 An. p. 320.

The appellees pray for damages in this case for a frivolous appeal; but we hardly think the case.would fully warrant it.

It is therefore ordered, adjudged and decreed, that the judgment, of the District Court be affirmed with costs in both courts.


author: TaliafeRKo, J.

text:
    No. 1477.
    H. G. Hodgson v. City of New Orleans.
    The city ordinance of the city of Now Orleans for tlio year 1866, which, declares that “ every keeper of a warehouse where produce, goods, wares or merchandise are received on storage, one hundred dollars for each and every warehouse” was intended to impose a license tax of one hundred dollars upon the particular calling or business ofkeepinga warehouse, and not a tax upon the warehouse itself.
    Such a tax is uniform upon all persons engaged in that kind of business.
    from the Third District Court of New Orleans. Fellowes, J.

      Lacey & Butter, for plaintiff and appellant. IT. I). Ogden, for defendant and appellee.
   TaliafeRKo, J.

The plaintiff complaining of the unconstitutionally and excessive character of the forty-second section of the city ordinance approved December 16, 1865, entitled An act to establish a uniform rate of taxes and licenses on professions, callings and other business, and on carriages, hacks, drays and other vehicles, for the year 1866,” took out au injunction to prohibit the city from collecting from him one hundred dollars, the sum assessed to every keeper of a warehouse. On the trial of the injunction in the court below, it was dissolved, and the plaintiff appeals.

The objection is that the tax is not laid upon au entire class, calling or pursuit as it should he, so as to he uniform upon all persons engaged in and pursuing as a business or calling the keeping of warehouses. The plaintiff holds that it is the warehouse, and not the trade or occupation of warehouse keeping that is taxed. The forty-second section of the ordinance in question reads: t: Every keeper of a warehouse where produce, goods, wares or merchandise are received on storage, one hundred dollars for each and every warehouse.”

When, by the terms of a law or ordinance imposing a tax, it clearly embraces all who are engaged in the particular .business or calling taxed, we are unable to see why it does not fulfill the constitutional provision requiring taxation to he equal and uniform. The forty-second section of the city ordinance just quoted does not declare that all who are engaged in the business or calling of warehouse keeping shall pay a hundred dollars for each and every warehouse ; but it does substantially declare the same thing in substance, if not in direct terms, when it announces that every keeper of a warehouse where produce, goods, wares or merchandise are received on storage, shall pay one hundred dollars for each and every warehouse. The case of A. W. Meriam v. the city of New Orleans, 14 An. p. 318, presented a case similar in every essential point to the one now before us. In that case the objection was to the city ordinance which declared that “ every keeper of a billiard table, the whole tax being levied upon each and every billiard table shall pay sixty dollars.” The same ground of unconstitutionality for want of uniformity and failure to specify the trade or business was taken as in the present case. Judgment was rendered against the plaintiff, and the court said: “ Notwithstanding the language of the thirty-fourth section of the ordinance in question declares that a tax of sixty dollars shall be assessed and collected from every keeper of a billiard table, the whole tax being levied upon each and every billiard table, we have no doubt that the intention of the Common Council was to impose a license tax upon the particular calling or business of keeping a billiard table, and not a property tax upon the table itself.”

The plaintiff refers to the case of the Police Jury of the parish of Orleans, right bank, v. Pierre Nougues, 11 An. 740. We do not think it sustains him. The tax resisted in that case imposed an assessment upon each and every person keeping a dairy within certain limits specified in the ordinance, of $2 annually for each and every cow-Here there was the lack of equality and uniformity, for as the court remarked, “ the ordinance, while professing to tax the occupation really imposes a tax upon cows kept by dairymen within certain limits. The taxis not on all cows within the jurisdiction of the Police Jury, but upon the cows kept by certain individuals, whilst other individuals may keep cows without taxation.”

Evidence was introduced on the part of the plaintiff going to show that there were persons who kept private warehouses and received payment for storage, without being required to pay the license tax, and others who kept warehouses for the reception of articles brought to them for repairs, such as boilers, machinery of various kinds, etc., and who also received goods in their warehouses on storage alone, and charged and collected money for such storage without paying for a license. What benefit the plaintiff is to derive from this testimony we are at a loss to conceive. He sets himself out in his petition as keeper of “the Mississippi and Western Warehouses” in the city of New Orleans.

We conclude that the judgment appealed from was correctly rendered.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs in both courts.


text:
    No. 1507.
    Blanche A. Martin v. Taylor & Pinckard.
    The Supremo Court will e£ officio notice the want of proper parties, and dismiss the appeal without motion. 19 An. 286.
    from the Fourth District Court of New Orleans. Théard, J.

      A. Grima, for plaintiff and appellant. A. .N. & AT. N. Ogden, for defendants and appellees.
   Wyly, J.

This appeal was taken by one of the defendants, William M. Pinckard, who has not made his co-defendants parties thereto, by causing them to be cited.

It appears that a citation issued to the co-defendant, Zalmon Taylor, but it was not served on him either personally or at his domicile. C. P. 187, 188,189. It appears' that no citation ever issued for D. R. Carroll, warrantor, who was a party to the judgment.

Both Taylor and Carroll are evidently interested in maintaining the judgment of the lower court, and they should have been made parties to the appeal. 3 R. 436 5 5 R. 224 ; 9 R. 256; 12 R. 180; 8 A. 367; 11 A. 674; 14 A. 315.

Without a motion to dismiss, we will notice ex officio the want of proper parties to the appeal. Tupery v. Lafitte et al., 19 A. 296, and the authorities there cited.

It is therefore ordered that this appeal be dismissed at appellant’s costs.


text:
    No. 2055.
    Stephen Duncan v. John N. Helm.
    An amended petition substituting a new party plaintiff on allegations of ownership, in direct conflict with the original petition, will not be allowed, nor will an amendment be allowed showing that the notes sued upon were transferred after suit was commenced and a recon-ventional demand was filed.
    from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Farrar & Beeves, for plaintiff and appellant. Aroni & Collier, for defendant and appellee.
   Howe, J.

By petition filed in this case on the eighth March, 1866, the plaintiff, alleging himself to be a resident and citizen of Mississippi, claimed to recover from the defendant, also of Mississippi, the amount due upon two mortgage notes, and asked for a sale of the property mortgaged.

One note fell due J anuary 4,1861, and is credited with a partial payment ; the other fell due January 4,1862. They are dated in the parish of Tensas, and payable in New Orleans;- they are the sixth and seventh of a series of eight notes, amounting in all to $49,500; and are secured by a mortgage upon a plantation in the parish of 'Tensas. The plaintiff in the original petition claims, not as transferee, but as the original payee of the notes and mortgagee of the land.

Tlie defense was usury, it being alleged on behalf of defendant that the consideration of the notes was a loan by plaintiff to defendant of the sum. of $30,000 at the rate of ten per cent, per annum; that he has paid all of said notes in full, except the note in suit, and has paid on the first of the latter the sum of five thousand dollars; that his total payments have amounted to the sum of $35,750, or $5,750 more than the plaintiff is entitled by law to recover. I-Ie claims in reconvention the amount he thus paid in excess of the principal.

On the twenty-third September, 1867, a supplemental petition was filed as follows:

Your petitioner, Stephen Duncan, junior, residing in Natchez, Mississippi, respectfully represents that, through error of his undersigned counsel, a suit was filed in your honorable court styled Stephen Duncan v. John N. Helm, and numbered twelve hundred and seventy-two on the docket of said court; that said error consisted in using ‘ Stephen Duncan’s name as the plaintiff and petitioner, instead of Stephen Duncan, junior, in said suit; that said Stephen Duncan is dead, and long before his death transferred and delivered the notes sued upon in said suit, number twelve hundred and seventy-two, to your petitioner, who was the bona fide holder and owner of said two notes sued on as aforesaid ; whereupon petitioner prays leave to file this his supplemental and amended petition, that it be duly served, and that he have judgment as prayed for in the original petition.”

It appears that the defendant filed an exception to this “ amended petition,” though the exception itself is not in the record. It also appears that some evidence was taken on the trial of this exception, but the evidence is not in the record. There seems to be no proof of any of the allegations of this amended petition, except of the death of Dr. Stephen Duncan, and this event took place, as the counsel for plaintiff informs us, in January, 1867.

The case was afterwards tried, and judgment rendered against the plaintiff, rejecting his demand, and decreeing that the defendant recover from the plaintiff judgment in reconvention for the sum of $2750.

If this is a judgment against Dr. Stephen Duncan, it was rendered against a party deceased and unrepresented. If it is a judgment against S. Duncan, Jr., it is not supported either by the pleadings or the evidence. The amended petition, so called, we are of opinion, ought to have no effect beyond that of a suggestion of-the death of the original plaintiff. It should not be permitted to substitute a new party plaintiff, especially on allegations of ownership in direct conflict with the original petition, or if the amended petition is construed to mean that the notes were transferred to S. Duncan, Jr., after the suit was commenced, but before Dr. Duncan’s death, it was none the less irregular after the filing of a reconventional demand. Jones v. Jenkins, 9 Rob, 180.

The case must be remanded that tlio legal representatives of the deceased plaintiff may be made parties. It is unnecessary to pass upon the other questions in the case.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the cause remanded to bo proceeded with according to law, and that the appeice pay the costs of the appeal.


text:
    No. 1533.
    Charles Seuzeneau v. B. Saloy and The Sheriff.
    Whore the consideration of a promissory note, secured by a mortgage on real estate, is shown to be Confederate treasury notes, the holder cannot enforce the mortgage rights against the property mortgaged, nor recover on the note.
    fro,m the Sixth District Court of New Orleans. Duplantier, J.

      JE. Fllleul, for plaintiff and appellee. O. JE. Schmidt, for defendants and appellants.
   Wyly, J.

The defendants have appealed from a judgment perpetuating an injunction which restrains them from enforcing their mortgage on the property of the plaintiff.

The grounds for the injunction are that the note had no lawful consideration, having been given for Confederate money, and the act of mortgage was illegal, having been passed by a notary whose only authority was derived from the rebellious government, and who states in the act of mortgage that it was passed in the second year of the Independence of the Confederate States” — that a certified copy of said act was not sufficient authentic evidence to sustain the order of seizure and sale.

The District Judge after considering the evidence came to the conclusion that the plaintiff received from the defendants no other currency in exchange for their note and mortgage than the treasonable issue of the Confederate States,” and therefore perpetuated the injunction.

After a careful examination of the evidence wo have arrived at the same conclusion.

The testimony of the witnesses and the declaration contained in the act of mortgage are sufficient to satisfy us that the transaction was based on Confederate treasury notes.

The consideration was illegal and the contract cannot be enforced under the settled jurisprudence of this State. 20 A. 167.

It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 1487.
    Culver, Simonds & Co. v. H. J. Leovy et als. — B. B. Hart, surety on appeal bond.
    The signing of a final judgment by the judge, is a judicial act, which can only bo performed iu temp time. Acts of 1866, M. 86,
    The signature of the judge placed to a final judgment, out of term time, will have no effect.
    from the Sixth District Court, of New Orleans. Mvplan-tier, J.

      Mace, Foster cD F. T. Merrick, for plaintiffs and appellees. JI. J. Feovy and George IF. Christy, for defendants and appellants.
   Howell, J.

Tliis is an appeal from a judgment on a rule against the surety on an appeal bond, rendered on twenty-seventh June and signed on twenty-second July, 1867.

'Afule for a new trial was taken by the surety on the twenty-ninth June, and fixed, on motion, for the fourth day of November following. The order fixing this rule was rescinded on the fifteenth July, and the rule fixed for trial on Monday, twenty-second July, notice of which was given to the surety, who on tho day fixed opposed the trial of his rule on the grounds that it had already been fixed for November ; that such a rule could not bo tried in vacation, and if tried, judgment could not be signed in vacation. Those objections were overruled, tho motion for a now trial was dismissed and tho judgment against the surety was signed on tho same day, from which this appeal was taken on the thirtieth July, 1867.

Conceding that it was within the discretion of the judge a quo to rescind his order fixing the rule for trial on fourth November añ'd fix and try it in vacation (upon which we express no opinion), we.tliink the signing of definitive judgments is a judicial act, which can bo performed only in term time. It is the completion, the perfecting of tlie judgment and renders it executory.

The act No. 86, of 1866, expressly provides that the District Courts in New Orleans “ shall be open from the first Monday of November to the fourth day of July; and for criminal and probate causes, for granting interlocutory orders and writs of arrest, habeas corpus, injunctions, sequestrations, attachments, mandamus and provisional seizures, on a motion to quash, and not upon their merits, they shall remain open all the year j also for the purpose of trying proceedings instituted by a landlord for the possession of leased property ” Tho signing of a definitive judgment, which gives it vitality, is not granting an interlocutory order, and upon tho maxim “ expressio unius, exelusio alterius,n we must infer that such an act was not authorized by the above statute. The law maker has been careful to express for what particular proceedings and business the courts shall be open all the year, and the act necessary for making judgments in other matters final, not being-mentioned, is excluded.

Counsel for plaintiffs say, so soon as the obstacle to the judgment becoming final, interposed by tbe rule for a now trial, was removed by the overruling of the motion, it was the duty of the judge to sign the judgment, as lie did. This is so, if it was at a time when he could exercise such judicial power.

When the term closed on the third day of July, 1807, the surety knew that the judgment against him had not become final, and consequently that it could not regularly become so until the next term, as the law had not authorized the exercise of the necessary judicial function in vacation.

The signing of the judgment at the time was a nullity, therefore the judgment is not final. It may yet be legally signed.

It is therefore ordered that the appeal be dismissed.


text:
    No. 1505.
    C. A. Gayarre v. H. T. Hays, Sheriff, et als.
    No appeal will lie from a judgment dissolving an injunction wliere tbe amount in disputo is not above five hundred dollars. The fact that the property seized exceeds live hundrod dollars in value will not give the Supreme Court jurisdiction of the appeal from such judgment.
    from Third District Court of New Orleans. Fellowes, J.

      Face, Foster <& F. T. Merrielc, for plaintiff and appellant, F. W. Huntington, for defendants and appellees.
   Wyly, J.

Appellees move to dismiss this appeal because the court has no jurisdiction, the matter in dispute not exceeding five hundred dollars.

Plaintiff enjoins a' judgment against him as security on two injunction bonds for twenty per cent, on the two executions enjoined, that is to say, twenty per cent, on one execution for ono thousand dollars, fifty dollars attorney’s fees and costs, and twenty per cent, on tho other execution for three hundred and seven dollars and sixty-two cents, fifty dollars attorney’s fees and costs.

The matter in dispute is not the full amount of the two executions ; it is the amount of twenty per cent, thereon, attorney’s fees and costs, for which judgment was rendered against the plaintiff— this is less than five hundred dollars. Appellant contends that the value of his lot seized to satisfy said judgment against him exceeds five hundred dollars in valuó, and therefore this court has jurisdiction on that account. He cites the decisions in 12 R. 519; 6 R. 4, and 1 A. 310, to support his position that this court has jurisdiction whore the value.of the property seized exceeds five hundred dollars, although the judgment under which it was seized- is below that amount.

The cases he has cited refer to the opposition and injunction of third parties who claim to he owners of the thing seized. In such cases the matter in dispute is not the judgment, hut the ownership of the property seized. In this case, however, the property of the plaintiff was seized by tbe sheriff under an execution against him; and tbe contestation is about tbe validity of tbe judgment, and not tbe ownership of tbe property. Tbe matter in dispute is therefore below tbe jurisdiction of this court.

It is therefore ordered that this appeal be dismissed at appellant’s costs.


text:
    No. 1508.
    Louis Toye v. Thomas McMahon.
    In an action In damages for slander, tlio burden falls on tbe plaintiff of showing tbafc tbe language complained of was used by tbe defendant, and with malicious intent.
    A xi_ PPE AL from tbe Fourth District Court of New Orleans. Thomas, J.

      Saucier & MicMnard, for plaintiff and appellant, O. JE. Schmidt, for defendant and appellee.
   Howe, J.

This is an action of slander, tbe plaintiff alleging that bo is a “British subject of pure white, or Caucassiau blood,” and that tbe defendant has injured him to the extent of five thousand dollars by stating publicly at a meeting of tbe Hackmen’s Benevolent Association that be, plaintiff, “was a colored man, meaning thereby a person of African origin,” and thus causing Mm to be “disgracefully expelled from tbe association.” Tbe usual allegations of malice and damage are made in tbe petition.

Tbe defendant, after pleading tbe general issue, specially avers that at a preliminary meeting, held for tbe purpose of organizing tbe association, be was urged by several persons present to call the attention of the mooting to the fact that tbe plaintiff was supposed by many to be a man of color, and that some eight years previous he bad applied for admission to the then Hackmen’s Association, and bad been rejected for this reason. That “ to save complaint” defendant u desired it to be put to tbe meeting whether they were satisfied to have tbe plaintiff in the association,” and tbe meeting determined to refund the plaintiff tbe dollar be bad paid on giving in bis name, and to strike tbe name from the list of those who desired to become members. He pleads that these statements wore true, and were not uttered with any malice.

There was judgment for defendant, and plaintiff has appealed.

The voluminous record establishes tbe fact clearly enough that tbe plaintiff is a white man; but it does not seem to prove conclusively that tbe defendant uttered the language complained of and with the intent charged. We presume the District Judge was satisfied that tbe answer of tbe defendant was substantially correct, and we perceive no reason for reversing bis decision. It does not appear that tbe plaintiff ever belonged to tbe association from which be alleges be was expelled, but merely that Ms application was rejected, and this fact may have bad its influence.

It is therefore ordered and adjudged that tbe judgment appealed from be affirmed with costs.