text:
    No. 9727.
    Mrs. Margaret E. Pattison, wife, etc., vs. Dr. J. H. Maloney.
    I. Good faith purifies the title of its defects and causes the possessor under a just title to be preferred to the true proprietor who has remained so long neglectful of his rights.
    3.That there is no defect stamped on the iaoe of the (leed is what is meant by valid in point of form.
    3. A possessor cannot be deprived of pleading prescription because he might, by inquiry and careful examination, discover that his vendor had no title.
    4. A title defective in form cannot he the basis of prescription. By this is meant a title on the face of which some defect appears, and not one that may he found defective by oir cumstances, or evidence dehors the instrument.
    5. If, upon examination of the recitals contained In a deed they prove erroneous, this would only he an error of fact, and would not prevent the possessor under it from pleading prescription.
    A PPEAL from the Civil District Court for the Parish of Orleans. r\ Tissotj J.
    • Farrar & KruUsclmitt for Plaintiff and Appellant.

      S. P. Part for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

This suit is to compel defendant to accept title to a certain lot of ground, with improvements, situated in the Fourth District of the city of New Orleans, in the square bounded by Laurel, Constance, First and Philip streets, measuring 49 feet front on Laurel, by 160 feet in depth between parallel lines, and designated by the numbers 159 and 161 Laurel street — sale of which to defendant was effected through C. E. Girardey & Co., real estate brokers — who acted as the mutual agents of both seller and purchaser, at the price of $4,000, to be paid on day of sale, on the 15th of October, 1885.

Defendant for answer pleads the general issue, and admits the promise to buy the property as described, but he avers that the plaintiff has no good and valid title to the property, as to three-fourths thereof, “for the reason that said property was acquired in 1850 for and on account of the firm of Norcross & Co., composed of David D. Boyle and Henry A. Norcross,” and in which the latter was interested to the extent of three-fourths and the former to the extent of one-fourth; and that the Norcross interest has never been divested, and he prays that plaintiff’s demand be rejected.

In argument plaintiff replies, that conceding that the Norcross interest has never been divested by title, or other proceedings, and there is no conveyance of record of the Norcross interest to the plaintiff or her vendors, yet the title tendered is perfect and complete, and that same has been perfected and completed by the prescription of ten years.

In his brief, plaintiff’s counsel propound this question : “ Has plaintiff shown possession under a title translative of property, and in good faith, for ten years; and has she thus proved a good title by prescription to the property sold?”

I.

The present plaintiff claims to have derived title through the following chain of conveyances, viz:

1st. By an authentic and duly recorded act of sale from the heirs of D. D. Boyle to John E. Pattison, of date January 26, 1869.

2d. By Pattison’s assignee in bankruptcy to Lochte & Cordes and Mrs. M. Aloitz; likewise by authentic act of date August 9, 1878, and duly recorded.

3d. By a conveyance from said parties to the plaintiff, which was authentic in form and duly recorded.

The heirs of John E. Pattison’s vendors is fully established; and he, as a witness, states that prior to his purchase from the heirs of Boyle he took counsel of Judge G-. W. R. Marr, whom he had employed, to examine the title; and that after having kept the matter under advisement “some three or four weeks,” he reported “that after a thorough examination, he gave me his opinion that it was as good as any title in in the State” — and that he then bought the property, and never had any reason to suspect that there was any defect in the title at that time or since. He further says that under the title from the heirs of D. D. Boyle he went into actual possession as owner, and that he and his assigns have continued in its peaceable and uninterrupted possession ever since; and that he has made permanent and valuable improvements thereon since his purchase — said lot being a vacant one when he so acquired it.

He says that he paid $1600 for the property, and the improvements cost him $3800 or more, and that they were erected and constructed in 1869.

Mrs. Pattison, the plaintiff, corroborates that statement.

Consulting the act of sale from the heirs of Boyle to Pattison, we find these recitals, following the description of the property, viz:

“ The title to the said lot of ground is held by the said vendors in manner following, viz: At a public sale of the tract of land, surveyed into four lots by said amended sketch, which was made by the sheriff of the parish of Jefferson, in this State, on the 10th day of August, 1850, by virtue of a writ of fieri facias to him directed by the Third Judicial District Court of the parish of Jefferson aforesaid, at the suit of D. D. Boyle et al. vs. E. S. Hall, one undivided one-fourth interest in said tract of land was purchased by Dermis D. Boyle; and at the death of said Dennis D. Boyle, Ms said interest in said tract of land was inherited by said vendors, * * * and by an act of partition between Isaac Knopp, owner of the three-fourths interest in said piece of ground * * * and said vendors, as the heirs of said deceased Dennis D. Boyle, the owners of the remaining one-fourth, * *' * said vendors became the owners of an undivided interest each m the said lot designated by the letter B.”

Thus, the plaintiff argues, she has fully answered her own question— that is to say, that she has fully established her title by prescription— claiming to have exhibited, 1st, A just title; 2d, To have shown possession thereunder for more than ten consecutive years; 3d, And that her vendor acquired in good faith.

II.

It is claimed by the defendant that in 1849, a lot of ground 160 feet front on Laurel, by 1834 feet on First street, was owned in indivisión by Ferry and Knopp and Hall, the latter having an undivided one-fourth interest. That the interest of Hall was attached in the suit of H. A. Norcross & Co. vs. E. S. Hall, and subsequently sold under fi. fa. therein on August 10,1850, “when Dennis D. Boyle, surviving partner of the firm of Henry A. Norcross & Co., and liquidator of said firm, * * * being the last and highest bidder, the said before described property was adjudicated to the said Dennis D. Boyle for account of said firm of Henry A. Norcross & Co.,” etc., and that same was accordingly adjudicated. The recitals of the sheriff’s proees verbal of sale are to that effect.

It was admitted as a fact that the public records disclose no conveyance of the Norcross interest to any one. That Norcross died in October, 1849, and that his succession was opened in the Fourth District Court soon after. It is admitted that the record in the partition suit of Dennis D. Boyd et al. vs. Ferry & Knopp, decided in (12 Ann. 425) 1857, cannot be found.

It is admitted that the heirs of Boyle and Ferry & Knopp “ partitioned said plot of ground” by an authentic act of date May 12, 1869, “in which partition the lot nowin question fell to the heirs of Boyle;” and the heirs of Norcross did not participate therein.

Upon this state of facts, the defendant’s counsel predicates the argument that plaintiff had never acquired the Norcross interest, and then asks the question, “How then can he base a prescription on good faith1? Perpetually before him m his deed stands the reference to the suit of Boyle et al., and the subsequent adjudication to Norcross & Co. undei execution thereon.”

As quoted, counsel is slightly inaccurate on a material point.

The deed from the heirs of Boyle & Pattison, of date 26th of Janu-. ary, 1869, — the one counsel doubtless refers to — does make reference to the suit of Boyle vs. Hall, and the sale under fi.fa., and the adjudication of the property not “to Norcross & Co.,” as stated, but, as it recites, “that the undivided one-fourth interest in said tract of land was purchased by Dennis D. Boyle, etc.”

III.

Was Pattison bound to look beyond the authentic conveyance order to maintain his title by prescription 9 Was there any recital in the deed to put him on notice of any defect in the title of the heirs of Boyle, whereby to deprive him of.liis good faith at the time he made the purchase 9

For “it is sufficient if the possession has commenced iu good faith. R. C. C. 3482.

“The possessor in good faith is he who has jnst reason to believe himself master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.” R. C. C. 3451.

Under the circumstances above given, had John E. Pattison “jnst reason to believe himself the master of the property” he purchased on the 26th of January, 1869, from the heirs of Boyle1?

His notarial title did not disclose the defect complained of. It purported to convey a full title, and the act was translative of property. It was a just title. It was a title which he received from a person whom he honestly believed to be the real owner, and the title was such as to transfer the ownership of the property. R C. C. 3484.

He had employed a lawyer to examine it, and he reported it good. He had not then, nor has he since, heard the title questioned.

There was, at the date of his acquisition, upon the public records an act of partition of several lots of'ground, bearing date May 12, 1868, whereby the heirs of Boyle appeared to have acquired full title to the one in controversy. The record of that partition suit has been lost, and there is no certainty as to who were the plaintiffs “ Dennis D. Boyle et al.” That is left to conjeeture. Knopp and other co-owners as to three-fourths undivided interest therein joined in ihe partition and accepted title under it. They were parties to the lost record. Seven years had then elapsed since the sheriff’s sale was made in the suit of Norcross & Co. vs. Hall, and Norcross died in 1849. If that missing link were supplied, plaintiff’s title would be perfect without the help of prescription.

“ Good faith purifies the title of its defects and causes the possessor under a just title to be preferred to the true proprietor, who has remained so long neglectful of his rights.” McCloskey vs. Webb, 4 R. 205.

“There is no defect stamped on the face of the deed, and that is. what this Court say wras meant by valid form in a deed which would enable a holder under it to prescribe. Carroll vs. Cabaret, 7 Mart. 406. A possessor cannot be deprived of the right of pleading prescription because he might by inquiry and careful examination discover that his vendor had no title. Frigue vs. Hopkins, 4 Mort., N. O. 224;” Geddens vs. Mobley, 37 Ann. 419; Barrow vs. Wilson, 38 Ann. 209.

In Hall & Turner vs. Mooring, 27 Ann. 597; the Court say: “The defendant’s title is apparently perfect. * * The defect complained of is dehors both acts. Tt is well settled that to become the basis of prescription the title must be apparently good and of a kind calculated to induce a belief in the possessor that it is perfect. A title defective in form cannot be the basis of prescription. By this the law means a title on the face of which some defeat appears, and not one that may be found defective by eweumstances or evidence dehors the instrument."

Again : “ There can. be no greater obligation on the vendee to examine the verity of the statement in the written mandate of Wright than to inquire into the truth of the assertion of the seller that lie is the owner. In both it could be an, error of fact, which the law would not consider of such a nature as to prevent the party from pleading prescription.

The rule is that when the opinion of the possessor who holds an object under a title of sale has a just ground, though in fact there is no sale, the opinion is equal to title,”

In 10 Peters 489, Harpending vs. Dutch Church, the Court said; “One tenant in common may well hold adversely to and bar his co-tenant.” 5 Wharton 116, McClung vs. Ross.

In 5 Peters 402, Bradstreet vs. Huntingdon, ttie Supreme Court said: “If parties, having only an equitable right to land, undertake to convey the fee; or, if one tenant in common undertake to convey the whole, and the gran ter enter into the actual possession, intending to claim the whole, he is not precluded from setting up his possession thus acquired as a bar under the statute of limitations, nor from relying on it as preventing a conveyance by the owner out of possession."

The questions propounded are answered. The plaintiff’s title by prescription is perfect and complete. The judgment appealed from is erroneous. •

Tt is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the defendant accept the title tendered him by the plaintiff to the property in controversy, at the price of $4,000, as recited in the act of sale, and perfect and complete said contract of sale, and that all costs of both courts be taxed against him.

Judgment reversed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9787.
    Charles B. Miller vs. R. H. Shotwell et al.
    An instrument, executed in the State of Alabama and shown to be a mortgage in that State^ will be treated as such by the courts of Louisiana; but as the lands affected thereby are situated in Louisiana, its effect must be regulated by the laws of this State.
    Under our laws, a mortgage does not, of itself, operate a divestiture of title from the mort' gagor to the mortgagee.

      'Lbe mortgagor retains the title and under it will defeat claims of ownership set up by the mortgagee, as resulting from the mortgage.
    A common law mortgage is not similar to vente a remaré, under the Civil Code of Louisiana.
    A PPEAL from the Twenty-fifth District. Court, Parish of Vermilion. Clegg, J.

      Henry St. Paul and Jos. A. Breaux for Plaintiff and Appellant. O'Bryan & White for Defendants and Appellants.
   Tlie opinion of the Court was delivered by

Poché, J.

This litigation, which plaintiff styles “a suit for slander of title, with the object to try title,” involves the ownership of a large tract of land situated in the parish of Vermilion in this State.

Plaintiff has appealed from a judgment which decreed that the defendants were the owners of the property in suit.

Both parties claim title from C. A. Hatch.

Plaintiff as the vendee of Tilomas P. Miller, who had purchased from C. A. Hatch, rests his claim on a deed executed on the 17th of October, 1860, in the State of Alabama, between J. L. and R. H. Shotwell and C. A. Hatch; and the defendants rely on a sale to them by Hatch, under date of December 14, 1860, under which they took and have since retained possession of the lands.

There is no dispute about the original titles of Hatch.

The main controversy hinges upon the proper construction and legal effect of the deed of October 17, 1860, between Hatch and the defendants.

In order to throw the best light on the discussion we transcribe the leading features of the document.

“ The State of Alabama, Mobile county:

“Whereas, we, James L. Shotwell and R. I-I. Shotwell, of the city of Mobile and State aforesaid, are indebted to Christopher A. Hatch, of the parish of Vermilion, State of Louisiana, in the sum of $16,216.60, as the purchase money of the land hereinafter mentioned; and, whereas, for the payment of said money, we have made our four promissory notes payable to the order of said Hatch and T. P. Miller, at the bank of Mobile, each for the sum of $4054.16, * * * and, whereas, we are desirous to secure the payment of said purchase money; therefore, we do hereby bargain, sell, convey and confirm unto the said C. A. Hatch, the following described lands purchased as aforesaid, to-wit.”

“To have and to hold unto him the said Hatch and to his heirs and assigns forever, upon the condition, however, that if we shall pay the amount aforesaid according to the tenor of the promissory notes aforesaid, then these presents shall be null and void; otherwise to remain in full force and virtue.” Dated October 17, 3860.

The text of the instrument, viewed in the light of our jurisprudence, and of the laws of Alabama, as shown both by evidence and authority, leaves no doubt in our-minds as to the true intention of the parties thereto.

It was clearly to create a mortgage by way of security for the purchase price of the lands therein described.

The loading consideration in the instrument is an acknowledged indebtedness by the Shotwells to Hatch, and the object of the deed was “to secure the payment of said purchase money,”

In poiut of fact both parties are in accord in treating the contract as a mortgage under the form prevailing in the State of Alabama.

The contention between them arises out of the question of the effect of such a mortgage, as affecting the lands in suit.

Plaintiff’s theory is that the effect of such a mortgage under the laws and jurisprudence of the State of Alabama, was to vest the ownership of the property in Hatch, the mortgagee, on the failure of the Shot-wells to satisfy the payment of the promissory notes, and that the possession of the lands by the Shotwells after their pirrchase was in subjection to Hatch’s right of possession under the deed, and in trust for him.

He assimilates the contract in its effect to our sale with the clause of redemption known in civil law as the “vente á réméré.”

But this argument is inconsistent with the admission that the deed is a mortgage under the laws of Alabama, and it falls under the very text of the instrument itself.

Hence plaintiff is driven to this argument: “ Then, as beforesaid, the sole question is, what was the intention of the parties when they entered into the contract of October, 1860 ? They were all citizens of and residing in Alabama, they chose the form in use there for like contracts, and it cannot be supposed that they had in view the laws of another State, of which they were utterly ignorant.”

The argument is fallacious, both in fact and in law. In the deed itself, Hatch is described as a resident of the parish of Vermilion, State of Louisiana, and he is likewise described in the act of sale to the Shotwells, which was executed in the parish of Vermilion, in which the lands are situated.

The other fallacy of the argument turns upon a question of law which is the crucial test of the whole controversy, and that is : under what law must the effect of the mortgage be construed ?

From the very nature of the contract, whether viewed as an act of transfer, or as an act of security, it is clear that, as the lands to be affected thereby are situated in this State, the instrument was intended to take effect in Louisiana.

Now art. 10 of the Civil Code answers the question as to which forum must regulate its effect, it reads :

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.”

“But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where such acts are to have effect.”

It is, therefore, safe to conclude that, whether the contract of the parties was one of. a sale with the right of redemption, or simply a mortgage, its effect must be tested under the laws of Louisiana.

Similar contracts have been subjected to judicial interpretation in this State and the current of authority goes to settle the rule that they must be construed under the laws of this State. Out of numerous adjudications supporting these views, we have selected the following as more directly in point. Ricks vs. Goodrich, 3 Ann. 216; Bernard vs. Scott, 12 Ann. 489; Gunger vs. Bullard, 16 Ann. 107; McIlvane et al. vs. Godchaux et al, 34 Ann. 923; Same vs. Same, 36 Ann. 359.

Having reached the conclusion conceded by both parties that under the laws of Alabama the deed in question was a deed of trust or common law mortgage, and having shown that its effect must be regulated by our laws, we require no argument or reference to any authority to justify the conclusion that it could not have the effect of operating a divestiture of title. Hence, under its effect the mortgagor has not ceased to be the legal owner of the property, and his possession of the same is legal, as it was contemplated by the parties to the deed.

We refer, however, to the following' decisions in- order to remove the point beyond the domain of possible future discussion. Smoot vs. Russell, 1 N. S. 522; Hayden vs. Nutt, 4 Ann. 71; Frelson vs. Tiner, 6 Ann. 18; Collins vs. Pellerin, 5 Ann. 99; and to two of the cases hereinabove quoted on a different point. Ricks vs. Goodrich, 3 Ann. 216; Bernard vs. Scott, 12 Ann. 489.

We note the reliance of plaintiff on the ease of Thibodeaux vs. Anderson, 34 Ann. 797. But that decision lias no application here. The Court there held that a common law mortgage, executed in Louisiana and intended to affect property in this State, could have no effect against third paities as a mortgage.

In this case we construe an instrument executed in Alabama, avowedly a mortgage under the jurisprudence of that State, but intended to affect property in this State; and we hold that it could not have the effect here, even between the parties thereto, which is claimed for it under the laws of Alabama, and that, as a mortgage, it did not operate a divestiture of title.

Judgment affirmed.

Mr. Justice Fenner, having not heard the argument, takes no part.


author: Todd, J.

text:
    No. 9619.
    Yale & Bowling vs. H. Routh, and W. G. Wheeler vs. H. Routh. (Consolidated.)
    Where plaintiffs’ demand is less than two thousand dollars, accompanied by an attachment, and judgment is rendered for the debt sued for, but the attachment is dissolved, this court is without jurisdiction to review the judgment either as respects the debts or the dissolution of the attachment.
    Where the defendant in an attachment claims damages for the illegal issuing of the writ, one item of which is the alleged sacrifice of his goods seized and sold thereunder, and it appears that a low appraisement of the goods was procured by bis own contrivance, and he was himself the purchaser of the goods at the sheriff’s sale through a person interposed, and also concealed a part of the goods whilst under seizure which, in consequence, were not included in the sale, such facts deprived defendant of all right to complaim.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      Chas. Louque, for Plaintiffs and Appellees.

      Tobias Gibson, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs in these consolidated cases sued the defendant for $477.29 and $774.94 respectively. The suits were accom - panied by attachments, under which'a stock of goods of the defendant, was seized.

During the pendency of the suits, on representation that the property was of a perishable nature, an order for the sale cf the goods was rendered, and a sale was made by the sheriff on the 24th day of January, 1885.

The defendant, in his answer, admitted the indebtedness for which he was sued, but alleged that the attachments had issued illegally, and claimed damages in reconvention, as follows :

1. Loss on his goods sold under attachment.............. $8,200 00

2. Accounts not collected owing to closing of the store____ 1,085 00

8. Mental sufferings.................................... 3,000 00

4. Wrecking his business prospects...........:.......... 5,000 00

5. Exemplary damages..................... 5,000 00

Total...............................................$17,285 00

This amount he claimed against each of the suing creditors.

The case was tried by a jury, who returned a verdict for the plaintiffs for the amount of their respective claims, but dissolved the attachment, and gave damages on the reconventional demand, for one thousand dollars, and judgment was rendered accordingly. From this judgment plaintiffs appeal.

We cannot review the judgment so far as relates to the plaintiffs’ demand and the disposition made of the attachments, for want of jurisdiction, but must limit ourselves to the consideration of the reconventional. demand.

The evidence shows that the defendant’s stock of goods when the attachments issued was worth about $3000. They sold for $300 and were appraised at $450.

We find in the record no inventory of the goods and no returns on writs of attachment. In the commission issued to the sheriff to sell under the order rendered, after the attachments were levied, the goods to be sold were described and specified, but we are satisfied that these goods either could not have embraced the entire stock attached, or if they did, that their value had been largely overestimated. In fact, an inspection of this list would rather confirm the correctness of their appraisement made j ust previous to the sheriff’s sale.

Be that as it may, we are convinced that this appraisement which is so bitterly complained of by the defendant was really procured by himself.

An illiterate field-hand, a negro, was selected by him as an appraiser, and there is positive testimony that he gave directions for the exact appraisement that was made.

We are as equally well satisfied that Routh was the real adjudioatee at the sale, and that the ostensible.purchaser was a person interposed, who was acting- for Routh, and that the price was paid by him. There is also evidence to the effect that after the sheriff’s ]sale the goods remained in the store for several weeks, and sales] were made of the same as before, and a part of the proceeds thereof at least were paid over to him by the salesman in charge of the store.

There is further evidence to the effect that the morning before the, sheriff’s sale a part of the stock of goods was taken from the storeroom and concealed by Routh in a back room of the building, and was not offered for sale by the sheriff the next day. All these damaging facts against Routh are established to our satisfaction. We state our conclusions, but deem it unnecessary to give in detail the circumstances and the evidence which support these conclusions. If the goods of the defendant were sold at a sacrifice he mainly contributed, and doubtless reaped the benefit of the sacrifice. We believe, as was testified to, that he subsequently made a private sale of the goods to the pretended adjudioatee at the sheriff’s sale, and shared in the profits of a resale of the same.

Under these circumstances the other grounds for damages set up are scarcely worthy of consideration. As to the alleged injury to his credit and business it is shown that he had taken]the benefit of the bankrupt law, and after his discharge, the business had been conducted in the name of his wife, who failed, and thereafter by himself, and just before the attachments issued he had applied for a respite.

On the whole, therefore, we find no merit whatever in tire reconventional demand.

It is therefore ordered, adjudged and decreed that the verdict of the jury and judgment of the lower court so far as they relate to the re-conventional demand of the defendant be annulled, avoided and reversed, and the said demand be rejected, with costs of both courts.


author: Eenneb, J.

text:
    No. 9738.
    Police Jury of Parish of Jefferson vs. Augustin Marrero.
    Held, that under the Section 6 of the State license law, A.ct 4, 2d Ex. Sees, of 1881, a retail dealer whose ordinary license would be five dollars, but who combines with said business the sale of liquors in less quantities than one pint, can only be required to pay a total license of $50, and not $55 as claimed by the parish.
    A PPEAL from the Twenty-sixth District Court, Parish of Jefferson. Bout, J.

      8. 8. Carlisle for Plaintiff and Appellant.

      F. B. Far hart for Defendant and Appellee.
   The opinion of the Court was delivered by

Eenneb, J.

The sole question presented for our consideration in this case is the proper construction of certain clauses of the 6th section of the license law of the State, Act No. 4, 2d Ex. Sess. of 1881.

The act imposed a license upon the business of “ selling at retail,” graduated in twenty-five classes according to the amount of gross sales, descending from a license of $3500 in the first class, where the sales amounted to $3,500,000, to a license of $5 00 in the twenty-fifth class, where the sales were less than $7500. The section ends with the following proviso:

“ Provided, that if any distilled, spirituous, vinous, malt or other kind of mixed liquors be sold in connection with the business of retail merchant, grocer, restaurant, oyster house, confectioner or druggist, unless it be sold by prescription of a licensed physician, in quantities of not less than one pint nor more than five gallons, the license for such combined business shall be double the foregoing; provided, that any one not pursuing any of the occupations mentioned in this section, selling spirituous, vinous, malt and other kinds of liquors in quantities less than five gallons, shall pay a license of fifty dollars ($50); and if any of the above mentioned liquors are sold in less quantities than one pint in connection with the business of retail merchant or grocer, restaurant or oyster house, or confectionery, the license shall be four times the above amount for said combined business; provided, no license shall issue to sell liquor in less quantities than a pint without paying a license not less than fifty dollars ($50).”

The defendant is a seller at retail, falling within the twenty-fifth class, whose sales are less than $7500, and his license thereon is five dollars. In connection with his said business, he sells liquor “ in less quantities than one pint,” and the question is: what license is due by him1? Under the plain terms of the law it would be “four times the above amount,” or twenty dollars, but for the final proviso which forbids the sale of liquor in less quantity than a pint by any one without paying a license “ not less than fifty dollars.” The effect of this proviso is to except him from the general rule of paying four times his ordinary license, because that would be “ less than fifty dollars,” and to compel him to pay a license of fifty dollars in order to pursue the combined business.

Tlie object of the law was to require from retail dealers who sold liquors in less quantities than one pint four times the license due without such sale. This would, iu most cases, involve a license far exceeding fifty dollars. But as in some of the lowest classes, it would be less than $50, and as the law-maker was unwilling that any one should be licensed to sell liquor for a less tax than $50, he required these lowest classes to pay at least that amount. But he does not require theui to pay $50 in addition to the ordinary tax, any more than he requires the higher classes to pay four times the ordinary tax in addition to that tax itself.

The contrary contention of the police jury has no merit, and the judge a quo did not err in confining the claim to $50, instead of $55 as charged.

We pay no attention to the complaints against the judgment below urged by the defendant, who is an appellee and has filed no prayer for amendment.

Judgment affirmed.


author: Watkins, J.

text:
    No. 9711.
    People’s Bank of New Orleans vs. Mrs. F. E. F. Trudeau et als.
    The holder of a promissory note, acquired for a valuable consideration, before maturity, can recover of the maker the full amount of same and the enforcement of the mortgage securing its payment, when the only defense urged against it is a deficiency in the quality of land sold, and the seller has been discharged from all responsibility thereon by defendants.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      E. Howard MeCaleb for Plaintiff and Appellee:
    1."Where the heirs of the drawer of promissory notes, secured by mortgage and vendor’s privilege, obtain from the holder renewals and extensions without the vendor’s knowledge or participation, they cannot when sued on the notes, claim a diminution of the amount evidenced thereby, because of an alleged deficiency in the quantity of the land sold. Nor can they call their vendor a third person as to the renewals and extensions in warranty. Having obtained full consideration for the notes, they are estopped irom claiming any deduction and from pleading secret equities between them and their vendor.
    2.There must be privity of contract between plaintiff and warrantors. This is a sine qua non to the call in warranty permitted by the Code of Practice, arts. 378, 379 ; 8 B. 30 ; 18 Ann. 554; 19 Ann, 67; 23 Ann. 554.
    3.The maker sued by the holder of a note cannot call other parties in warranty. 3 M. 261; 8 L. 37; 8 Ann. 123; lb. 136.

      4.Quanti mvnoris is a direct action and cannot be engrafted on a suit against a vendee by a third holder, not h?s vendor, to enforce the payment of promissory notes. Such a call in warranty by the vendee will not be tolerated in order to evade the plea of prescription of one year available to the vendor in a direct action. R. C. C.2492, 2498; Troplong, Tente, T. 1, No. 533; T. 2. Nos. 580, 586.

      Olías. Lauque for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

This suit was brought on two promissory notes for $5,194.45 eaoh, bearing date February 7, 1881, maturing at two and three years thereafter, and secured by special mortgage and vendor’s lien upon the Elista plantation — for the deferred portions of the purchase price of which same had been executed by Emanuel Trudeau.

They were drawn payable to his own order, and by himself indorsed in blank, at the time of their delivery to Manuel Elliott, the seller.

The authentic act of sale evidences these transactions, and also contains the usual stipulation as to the retention of a special mortgage and vendor’s lien on the property sold, to secure the payment of the purchase price, aud said notes were duly paraphed ne varietur.

The note first falling due was, by the plaintiffs discounted for, and at the request of Manuel Elliott, and the second was discounted for the account of Joseph Emanuel Elliott — both prior to maturity.

On the former appear the following special indorsements, viz :

“ Pay to the order of J. F. Elliott.

(Signed) MANUEL ELLIOTT.”

And “ Pay to the order of Manuel Elliott.

(Signed) J. F. ELLIOTT.

MANUEL ELLIOTT.”

On the latter appear these indorsements, to-wit:

“Pay to the order of Joseph Manuel Elliott.

(Signed) MANUEL ELLIOTT.

And JOSEPH MANUEL ELLIOTT.”

The notes, at their maturity, were by the bank extended at the special instance and request of the maker, and his heirs and legal representatives, after his death, in June, 1883, who had been formally recognized, and put in possession of his estate.

They are made parties defendant in this suit, and, answering, plead the general issue, followed by a special defense, to the effect that they are not liable to the plaintiffs on these notes to the extent of $,6667.38, for that there was error in the execution of the notes, and want and failure of consideration therefor.

In explanation defendants aver that there was a deficiency in the quantity of land sold their ancestor, Emile Trudeau, to the extent of 639.70 acres, worth that sum, aud they claim a reduction therefor, on such judgment as the court may award plaintiffs; but, in the event judgment should go against them for the whole, they then demand a like judgment to the extent of said deficiency, against the heirs and representatives of Emanuel Elliott, the seller and warrantor, whom they have called upon to defend this suit therefor.

I.

The proof clearly shows that the plaintiffs acquired the notes for value before maturity, and they are therefore holders in good faith, and fully protected under the law-merchant, against any and all equities existing between prior parties thereto.

This is elementary.

Hence, plaintiffs are, at least, entitled to judgment for the full amount of the principal and interest of the notes, with five per cent attorneys’ fees, and cost against defendants.

II.

Counsel for defendants, in the brief and oral argument, insist that the mortgage securing the notes is only assignable — passing by the transfer of the notes — and is not protected against existing equities.

While this is true, as a general proposition, we cannot see in what way same can be applied in this case.

Defendants’ answer does not claim such relief. It does not demand that plaintiffs’ mortgage be in any way limited in extent of area, or to the reduced sum defendants are willing to pay.

Granting the full force of defendants’ counsel’s argument in regard to the alleged deficiency in the quantity of land sold, and yet plaintiffs are entitled to have their mortgage and vendor’s lien recognized, and enforced to the full extent of the land actually conveyed ; and that is all they have.

The cases cited by defendants’ counsel can have no bearing on the case at bar. 8 R. 440, Schandt vs. Frey; 14 Ann. 596, Bauman & McElroy vs. Bradford; 20 Ann. 254, Brou vs. Becuil; 28 Ann. 855, Morris & Co. vs. White; 26 Ann. 376, Gamer vs. Goy; 19 Ann. 260; 20 Ann. 264.

To illustrate the inapplicability of the principle contended for, we quote from 14 Ann. 596, as follows :

“If one mortgages property n.ot his own, and without any authority, to guaranty a negotiable promissory note, the mortgage is without any effect.

“A party taking a negotiable note secured by mortgage must incur the risk that there may be other parties who may successfully oppose his mortgage.

“If the mortgagee were the pretended owner of the property by a simulated sale, the negotiability of the note cannot give force to the act of mortgage, and thus transform a simulated sale into a real one.

“The negotiability of notes cannot destroy the rights of third persons to real property, who are no parties to the note, and perhaps know nothing of its existence.

“It is true that the transfer of a note carries with it its accessions, and the mortgage is an accessory, but the mortgage is conveyed only so far as the person giving it was entitled to create it.”

Undoubtedly Emile Trudeau was entitled to, and did create a mortgage and vendor’s lien to the full extent of his acquisition of property under the act of sale from Manuel Elliott. To that extent it can be enforced by plaintiffs. In this manner the question of the alleged diminution of price, growing out of the deficiency in quantity of land, is eliminated from discussion.

III.

If this were not the case, the defendants clearly had no right to delay trial on the notes, until he could litigate this question with their vendor and warrantors, because neither the heirs of Manuel Elliott, nor Manuel Elliott, occupied such relation to the notes sued on as to justify it.

The notes having been executed to the order of the maker and by him indorsed in blank, and payable to bearer, and no further indorsement was necessary to pass title thereto, and any subsequent indorsement thereof was either an accommodation or an act of suretyship.'

When, thereafter, the maker and indorser or his heirs procured an extension of time without their consent, such persons are discharged from all liability and ceased fo be parties or persons to the contract through their act. Having thus discharged them when they wanted further time to make payment, they cannot now equitably claim the right to postpone proceedings until they can have a reckoning with them on their call in warranty.

We think the judgment of the lower court was correct, and it is therefore affirmed.

Judgment affirmed.


text:
    No. 9725.
    Mary J. Ashbey vs. Joseph N. Ashbey.
    The charge that a plaintiff sues in two capacities that are inconsistent with each other, should be talren advantage by exception. It is too late after judgment and by motion for a new trial.
    An acknowledged account is barred only by (he prescription of ten years.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissoi, J.

      J: 8. <& J. T. Whitaker and O has. 8. Mee for Plaintiff and Appellee.

      A. J. Lewis for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is a suit on account rendered by the defendant to the plaintiff for moneys received by him as her agent, showing a balance due plaintiff for $5,437.92.

There was a plea of prescription of three years filed by the • defendant.

This was overruled.

An answer was then filed which averred payment of the debt.

There was judgment for the plaintiff and the defendant has appealed.

In this Court he insists that the judgment was not in conformity to the pleadings. That plaintiff sues for herself individually and for her children as natural tutrix indeterminately.

This is not correct. The language of the petition is as follows: The petition of Mary J. Ashbey * * natural tutrix of her minor children duly appointed under an order rendered by the late Second District Court,” etc. The judgment was rendered in her favor as tutrix. It is true that in the body of the petition it is alleged that the defendant is indebted to her in said capacity and individually,” but that allegation does not of itself constitute her a plaintiff in her individual capacity, particularly in view of the plain language of the petition above quoted, in which she clearly sets forth herself as petitioner or plaintiff in the capacity of natural tutrix of her children.

Even if there was inconsistency in the pleadings or the allegations of the petition on this point, it could only have been taken advantage of by an exception in Limine, and there was no exception filed. It was for the first time presented in a motion for a new trial, which was too late.

The plea of prescription was properly overruled.

The account was an acknowledged account, subject to the prescription of ten years.

There is no merit whatever in the defense.

Judgment affirmed.


author: Pochk, J.

text:
    No. 9712.
    Jacob Von Hoven vs. Barbara Weller, His Wife.
    In an action for divorce predicated on a previous judgment of separation from bed and board, rendered one year previously, it is incumbent on tbe plaintiff to allege and to prove tbat in tbe mean time no reconciliation bad taken place.
    Tbe failure to make such proof is fatal to plaintiff’s case.
    He must make proof of all elements imposed as conditions precedent to tbe judgment which he seeks to obtain.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      B. Ii. Borman for Plaintiff and Appellant.
    Defendant unrepresented.
   The opinion of the Court was delivered by

Pochk, J.

This is a suit for divorce by the husband, predicated on a judgment of separation from bed and board rendered in his favor, one year previous to his present action, and the absence of reconciliation.

The wife made no defense in the lower court, and makes no appearance before this Court.

Plaintiff prosecutes this appeal from a judgment of non-suit against him.

The judge rested his conclusions on the failure of plaintiff to prove want of reconciliation between the date of the judgment of separation and the institution of the present suit.

He is sustained by the record as well as by the law of the case.

Art. 139 of the Civil Code grants the right of divorce to the party who has obtained a judgment of separation from bed and board, “when one year shall have expired from the date of the judgment of separation from bed and board, and no reconciliation shall have taken place.”

A proper construction of the article leads to the conclusion that the success of the plaintiff in stich a suit for divorce depends upon proof of the existence and combination of three essential and distinct elements, namely : first, a previous judgment of separation from bed and board; second, tbe expiration of one year since the rendition of the judgment; and third, the absence of reconciliation between the parties since the rendition of the judgment.

The failure of proof of one of these elements or conditions, is as fatal as the omission of either or of both of the others. The conditions precedent imposed by the law are absolute, and mandatory, and no valid judgment can be rendered in default thereof.

Hence in the case of Daspit vs. Ehringer, 32 Ann. 1174, this Court said: ‘‘No other evidence having been introduced to show the absence of reconciliation, the plaintiff should have been non-suited.”

Plaintiff’s counsel invokes the rule of law that the burden of proof is on the one who holds the affirmative; hence he contends that the defendant is bound to allege and prove a reconciliation.

A ready answer to that argument is supjdied by the Code itself, and by the record which shows that the defendant has made no appearance.

The case was put at issue by a default, which is equivalent to a general denial, with the burden of proof on plaintiff.

Cases resting upon special laws, cannot be tested under general principles.

In such actions as the present, the Code imposes on plaintiff the burden to allege and' to prove the existence of the three conditions im - posed by it, as hereinabove enumerated.

And this requirement is in perfect harmony with the general rule that in all actions the plaintiff must make out his case with legal certainty.

The whole theory of our law on the subject of divorce and of separation from bed and board, is to grant relief to one of the spouses, from wrongs on the part of the other which render their living together insupportable ; hence a reconciliation is construed as a waiver of the complaint, and is held as a bar to any further proceeding.

Art. 152 of the Code reads: “ The action of separation shall be extinguished by the reconciliation of the parties, either after the facts which might have given ground to such action, or after the action has been commenced.”

Such would be the legal effect of a reconciliation between the parties after the judgment of separation from bed and board, in a subsequent demand predicated on said previous judgment.

It was therefore incumbent on plaintiff to prove the want of such reconciliation, as a condition precedent to his success in the present action.

We therefore hold that the failure of plaintiff to prove the absence of reconciliation was fatal to his case.

Judgment affirmed.


text:
    No. 9756.
    The World’s Industrial and Cotton Centennial Exposition vs. The Crescent City Railroad Company.
    An appeal, in wMcli the transcript was not filed within three judicial days after tüe return day, and in which a motion for extension of time was not seasonably made, will be dismissed, notwithstanding an order extending the time, but granted after the expiration' of the legal delay prescribed for making the same.
    Such orders are granted at the risk of appellants, and will not save the appeal when it appears that they were inadvertently made.
    The absence of counsel does not fall within the category of circumstances beyond the control of an appellant, and is not a sufficient excuse for not filing a transcript in time, or making a seasonable motion for additional delay.
    APPEAL from the Civil District Court, Parish of Orleans. Tissot, J.

      Breaux & Ball and JE. M. Hudson, for Plaintiff and Appellant.

      John M. Bonner, for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

This appeal was made returnable on the third Monday, which was the 19th day of April/1886, and the transcript was filed here on the 6th of June following.

On the 5th day of May, 1886, appellant obtained from this court an extension of thirty days to bring up the transcript.

The point of appellee’s motion is that the application for an extension of time was not seasonably made, as more than three judicial days had elapsed between the return day and the date of the motion for time.

The point is well taken, and the motion to dismiss must prevail.

Nine judicial days are shown by the minutes of this court to have elapsed between the 19th of April, the return day, and the 5th of May, the day on which the motion for an extension of time was presented to this court.

In the case of the succession of Kuntz, 33 Ann. 30, we showed that orders for extension of time in such matters were altogether at the risk of the appellant, who would not be protected by the order, in delaying liis transcript, if it should subsequently appear that the motion had not been seasonably made, and that the order had, in consequence, been granted inadvertently.

These considerations are not disputed or. resisted by appellant’s counsel, but their contention, supported by the affidavit of the senior counsel, is that the failure to bring up the transcript or to file a seasonable motion for additional time, is due to the unforeseen absence of the affiant, who was called away on professional business to Washington, D. C., whence he returned only on the 1st day of May. Hence appellant should not be held responsible for circumstances beyond its control.

Their main reliance is on the rulings in-the following cases, which we have examined with great care, but which do not bear out appellant’s pretensions.

In the case of Kirkland vs. His Creditors, 8 N. S. 597, the court relieved the appellant from the effect of a delay caused by circumstances beyond his control. But the circumstances are not recited or mentioned in the opinion — hence that case does not sustain the proposition that the absence of counsel falls within the category of circumstances as contemplated by the court. While on the other hand, the illustrations used by Judge Martin, in the opinion, go a great way to exclude it. He says : The clerk of the inferior court may die, be disabled by sickness or a great pressure of business, from making out the transcript, or he may neglect or wilfully omit.”

In the case of McDowde vs. Read, 5 Ann. 42, the absence of counsel, coupled with an agreement with the clerk below, that he would prepare all transcripts of cases appealed by him, and an agreement with the clerk here that he would file all such transcripts without exacting security for costs, were held to be insufficient circumstances to save an appeal filed after legal delay.

In the case of Fuscich vs. Starke, 9 Ann. 21, the appeal was dismissed as brought up too late, notwithstanding an affidavit contesting the legality of an intervening term of this court, from which judicial days had been computed against the appellant.

The case of Wright & Co. vs. Brander, 17 Ann. 187, went off on an affidavit embodying, among numerous others, the very excuse which is tendered in the instant case. The court said emphatically : The absence of counsel furnishes no cause for excuse for not complying with the forms of the law.”

Following up the decisions of the court from that time to the present day, we find an encouraging current of authority in the same sense. It is true that an appellate tribunal will always and firmly protect the constitutional right of appeal, but on the other hand, the court must not lose sight of the legal rights acquired by an appellee through the omission or neglect of his opponent.

The rule that the absence of counsel is not a circumstance beyond the control of an appellant, sufficient to operate as an excuse for a delay otherwise unaccounted for, must apply with irresistible force to this case, in -which the record shows that appellant was represented by a law firm, of which the affiant was senior, and by a third attorney joined to them as counsel. And surely it cannot be pretended that the absence of one of three attorneys left the client without counsel or professional guides. Chretien vs. Poincy, 33 Ann. 131; Pierce vs. Cushing, 33 Ann. 401; DeBouchel vs. Husband, 34 Ann. 102; Succession of P. G. Quinn, 37 Ann. 391.

Our conclusion is that on the 5th of May, when the motion was made for an extension of time to bring up the transcript, appellant had forfeited all its rights to the appeal prayed for, by reason of its neglect or omission to present a seasonable motion for additional time, and that the order then inadvently granted, did not, and could not, have the legal effect to revise the appeal.

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


author: Fenner, J.

text:
    No. 9726.
    M. Scooler vs. W. Alstrom.
    An attachment bond made payable ‘ ‘ unto James T. Clark, Clerk of the Civil District Court and his successors in office, ” etc., is a bond in favor of the clerk of that court as required by the law, and is not invalidated by the fact that Clark had ceased to be clerk and had been succeeded by another. The bond being judicial is to be construed according to the law under which it was executed; and moreover, the terms “successors in office” clearly embraced the actual clerk -
    Garnishees who provoke unnecessary litigation in resisting the enforcement of their obliga* tions, must bear the costs when the decision is against them.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Brecmx & Hall for Plaintiff and Appellee.

      Fronds Tí. Lee for Garnishee, Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Under a writ of attachment issued against the nonresident defendant, plaintiff made the Honduras North Coast Bailway and Improvement Company a party garnishee, and its answers disclosed that the corporation held for defendant 1150 shares of its own stock.

Judgment was rendered against defendant, with privilege on the property attached. Execution was issued, and the stock was sold thereunder and adjudicated to the plaintiff.

A rule was then taken upon the corporation to show cause why it should not accept the transfer of the stock and issue a certificate therefor in favor of the purchaser.

The sole objection urged by the garnishee is that the judgment was rendered against defendant upon void proceedings, in that the defendant was not cited and did not appear therein, and in that the attachment was insufficient to bind him or his property because issued upon a defective and illegal bond.

The only defect in the bond urged here is that it was made payable “unto Jamies T. Olaa-lc, Clerk of the Civil District Court, and his successors in office,” etc., whereas James T. Clark had then ceased to be clerk and had been succeeded by another.

Without expressing an opinion on the right of the garnishee to raise objections of this character, it suffices to say that the objection urged has no force whatever. The bond is a judicial bond executed in pursuance of Act 103 of 1870, requiring such bonds to be “made payable to the clerk of the court which issues the writ.” It is well settled that judicial bonds are to be construed by the laws under which they are executed, rejecting surplusage and supplying omissions. Ricks vs. Gantt, 35 Ann. 923; Nugent vs. McCaffrey, 33 Ann. 272; Gibles vs. Lessor, 29 Ann. 272; Mason vs. Fuller, 12 Ann. 68; Slocomb vs. Robert, 16 La. 174; Webb vs. Thorn, Id. 196.

The insertion of the name of the former clerk was clearly surplusage. Besides, the bond, being in favor of “ his successors in office,” embraced the instant clerk.

The precise objection has been recently considered and pronounced of no merit. Schlieder vs. Martinez, 38 Ann. 847.

The garnishee’s claim to be exempted from costs, even under a decision adverse to him, on the grounds that he is a mere stakeholder, that the question of his light to pay was doubtful, and that a contest and appeal were essential to his protection, has no force. He cites no precedent for excepting him from the general rule throwing costs on the defeated party; and even if we might, under proper circumstance?, establish such an exception in favor of a garnishee, this case presents no claim to it.

We have.examined all of the numerous eases cited by him, as justi-. fying his doubts of the validity of an attachment based on such a bond, without finding one tending in that direction; any more than his citation of Wilkinson vs. Broughton, Manning’s Unr. Cases, 243, supports his contention that the judgment on his rule of the district court was insufficient to protect him without an appeal to this Court. That authority merely held that a payment by a garnishee during the pendency of a devolutive appeal by the defendant from the judgment, would not discharge him if the latter were reversed on appeal. It has no bearing on the instant case, in which the defendant has' never appealed in any way.

Judgment affirmed.


text:
    No. 9718.
    George Pilsbury vs. Julius Friedlander et als.
    Under a- contract -wherein a firm or commercial partnership undertakes to furnish the capital required fco prosecute a designated enterprise to a third person named, -who agrees to manage and control same through his influence, and the net profits thereof are to be equally divided, the expense thereof is upon the latter, unless the contrary is stipulated or agreed upon.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      G has. Lougue for Plaintiff and Appellant.

      Brauglm, Buck, Dinkelspiel & Hart for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff alleges “ that on the 15th day of April, 1884, * *' whilst in Belize Honduras, he was employed by the late commercial firm of J. Friedlander & Co., then composed of H. Leopold, Julius Friedlander, Henry Viavant and Albert Pilsbury * * as solicitor and representative of said firm in said country; that no terms were made with petitioner ” (as to) “ his salary for employment.”

He alleges that he worked faithfully for, and represented his principals “until the 16th day of June, 1885, at which time said firm repudiated their contract with ” him.

He alleges further that, during the fourteen months he worked for said firm “he only received from them the actual cost of his traveling-expenses,” and that Ms services were “well worth the sum of $150 per month, for wMcli all the members of the firm are responsible m solido” and he prays judgment against them for |2100.

Henry Viavant and Albert Pilsbury accepted service and made no appearance or defense, and judgment by default was entered against them j but Friedlander and Leopold appear and answer, and resist the plaintiff’s demands.

In their answer they specially deny that plaintiff was at any time in their employ, or in the employ of the firm of J. Friedlander & Co.

They represent that, during the existence of the firm of J. Fried-lander & Co., “Albert L. Pilsbury became interested in a certain portion of their business, that is, the portion relating to their Central and South American trade,” and he procured the services of his brother, the plaintiff, and that, “ though drafts were drawn on the firm * * for the expense of George Pilsbury, same were never paid except upon the approval of Albert L. Pilsbury, and were charged to his individual account.”

They further represent “that all the correspondence of George Pilsbury, relating to the business done by him, was addressed to and answered by A. L. Pilsbury individually, and in no case was same done by either one of respondents, or by the firm of J. Friedlander & Co.”

I.

The only serious question presented for our consideration is whether the plaintiff was ever actually and really employed by J. Friedlander & Co, or not. He does not claim that any definite arrangements were made as to what his compensation should be or for what length of time he should work, or whether by the month or year.

Quite a numher of witnesses were examined, and the usual conflict of testimony occurs.

An examination of the evidence has satisfied us of the following facts substantially.

That the firm of Pilsbury & Sons failed in business, and George Pilsbury went to Honduras for the purpose of making collection of its assets, and was thus employed in 1884, when he began operations there for his brother, A. L. Pilsbury, who had made a contract with J. Friedlander & Co., appertaining to the Central American business.

This agreement was to the effect “ that all profits arising out of the business contracted by A. L. Pilsbury, or brought under the management of the firm through his influence, either directly or indirectly, shall be equally divided as to the net results between the parties.’1'1

That H. Leopold had exclusive charge of the office, and the engagement of employees of the firm, to the knowledge of A. L. Pilsbury j and that, notwithstanding H. Viavant, while in Belize, in June, 1884, engaged the plaintiff to represent the firm and published, in a Honduras paper, a card to the effect that “J. Friedlander & Co., would continue the business of Messrs. Pilsfairy & Sons, under the superintendence of Messrs. A. L. Pilsbury and George Pilsbury;” but he made no arrangement with regard to George Pilsbury’s salary, but says, he “left that to be settled by his brother, who was better able to fix his salary.”

As a member of the firm, Mr. Viavant states that his sole duty “was to buy spot cotton;” and his publication of the card in the Belize paper was unknown to the firm of J. Friedlander & Co., until January, 1885, when it was repudiated and withdrawn.

On the 16th of June, 1885, the plaintiff voluntarily discontinued his employment in Honduras, and returned to New Orleans.

During the term of his employment plaintiff conducted his business correspondence exclusively with his brother, A. L. Pilsbury, and produced none of their letters on the trial.

The only letter that was produced by plaintiff, and introduced in evidence, signed by J. Friedlander & Co., opens in this wise, viz :

“ George Pilsbury, Esq., Honduras :

Dear Sir — By request of Mr. A. L. Pilsbury, we talce the liberty of addressing you regarding the Honduras business, which can be, under proper'management and careful solicitation, worked up to some magnitude.

“ Viavant returned, but his trip seems to have accomplished little,” etc.

This letter bears .date at New Orleans, July 7, 1884, but makes no mention of plaintiff’s employment by Viavant, who had then just returned from Honduras.

Plaintiff drew on J. Friedlander & Co. from time to time, and for small amounts, to cover his expenses while in Honduras; but he notified Ms brother, A. L. Pilsbury, and when same were received, J. Friedlander & Co. called the attention of A. L. Pilsbury to them, and procured his consent to pay them, and charge same to Ms account. Plaintiff had no account with them during the period of Ms employment.

The plaintiff never demanded payment of any specific salary from the firm, and received no payment on that score.

When he returned from Honduras he called at the office of J. Fried-lander & Co., and requested permission of Mr. Leopold and Mr. Viavant to see his brother’s books in order to ascertain his brother's interest therein, and, at that time, told Mr. Leopold, “ that, although he had no contract with his brother, he teas entitted to one-quarter interest."

Previous to this lie had called upon his brother for a settlement.

At that time plaintiff claimed that this one-quarter interest meant “ no more and no less than the half interest of * * * A. L. Pilsbury,” and that same was his understanding when he returned from Honduras.

• A lot of cards were printed for the firm of J. Friedlander & Co., with the name of the plaintiff printed or stamped in red ink across their face. Of them plaintiff says, as a witness: “I don’t know who sent them; they were sent by The firm; my brother wrote me as he did usually. All the correspondence was done with my brother.”

A. L. Pilsbury ordered the cards, and sent them to the plaintiff, but the evidence fails to disclose that the firm of J. Friedlander & Co. had knowledge of it.

Thereywas kept a separate set of books for the Central American business, of which A. L. Pilsbury had the management, and it was distinct and separate from that kept for the cotton commission business of J. Friedlander & Co.

Mr. Beer states that when he met plaintiff in Honduras he did not claim to then represent J. Friedlander & Co. “ He claimed that Messrs. J. Friedlander & Co. were simply agents for Mr. Pilsbury and, brother.'”

The statements made by George Pilsbury, Henry Viavant and A. L. Pilsbury do not fairly correspond as to the plaintiff’s employment.

Under this summarized statement of facts we conclude that the alleged contract of employment sued on by plaintiff, is not supported by the evidence.

There is no reasonable doubt of the valuable services rendered by the plaintiff whereby this Central American adventure became a success for a time; but, under the contract of the parties, as interpreted by the evidence, the plaintiff cannot recover of the defendants, Fried-lander and Leopold.

Judgment affirmed.


text:
    No. 9767.
    The State ex rel. J. M. Levet vs. Charles and Antoinette Lapeyrollerie.
    Where the execution of a judgment of an inferior court is sought to be prevented by means of a writ of prohibition on the ground of the want of jurisdiction in the court rendering the judgment, the circumstance that such court had overruled the plea to its jurisdic-‘ tion, and assumed jurisdiction of the cause, does not debar this Court from reviewing the question of said court’s jurisdiction and its ruling thereon. In fact, before that court took jurisdiction of the cause, an application to this Court for its interference would be premature.
    The object or purpose of a suit or the matter in dispute should be determined not by tlie prayer of the petition alone, but from tho body of the petition in conjunction with the prayer.
    13ven if the prayer does not ask in plain terms the decree that tho allegations of the petition would clearly warrant, such omission will not prejudice the petitioner’s right to recover on the averments of his petition, where they are sufficient to sustain the proper action and decree, and there is a prayer for general relief.
    APPLICATION for Prohibition.

      T. J. Sermnes & Legenclre for the Relator — (not of counsel in the original suit)
    <?. Leche, L. JDePoorter and J. I). Angustin for the Respondents.
   The opinion of the Court was delivered by

Todd, J.

The relator obtained a judgment against the respondents in the district court of the parish of St. John the Baptist. From this judgment an appeal was taken to tlie Circuit Court of Appeals for said parish.

In that court a motion to dismiss the appeal was made on the ■. ground of want of jurisdiction in said court ratione material.

This motion was denied and the court proceeded to try the cause, and reversed the judgment of the district court.

The ruling of the court on the question of jurisdiction was made in the same decree that pronounced on the merits of tlie controversy.

The plaintiff in said case then applied to this Court for a writ of prohibition directed against the defendants in said case to prevent the execution of the judgment rendered by the said Circuit Court of Aplicáis, ou the ground that said court had usurped jurisdiction of said suit, and that the judgment was consequently null and void; and this is the matter now before us.

1st. We are first met by an exception to the proceeding on the part of the respondents substantially to the effect that the question of jurisdiction was formally presented before said Court of Appeals by the motion filed therein to dismiss the appeal, and was determined by that court; and that its action on tho subject was final and cannot be reviewed by tliis Court under or by a writ of prohibition.

We have repeatedly held that a writ of prohibition would not lie to prevent an inferior court from taking jurisdiction of a cause in advance of any action by that court assuming jurisdiction — that such a proceeding would be premature until such action had taken place. State ex rel. Matt vs. Rightor, Judge, 37 Ann. 843; State ex rel. Girardey vs. O. B. Steele et al., 38 Ann.-

Should we now hold that che writ would not lie after the court had assumed jurisdiction, and that such action of the inferior court was beyond review, it would be virtually closing the door to relief in all cases where it was charged that jurisdiction had been usurped by such court.

We therefore conclude that there is no force in the exception, and' that the question of jurisdiction in the said Court of Appeals over the subject-matter of the suit referred to is properly before us for determination.

2d. A reference to the petition in said suit of Levet vs. Charles and Antoinette Lapeyrollerie, filed in the district court of St. John the Baptist and above referred to, shows that the plaintiff in said case— the relator herein — claimed to be owner of a real servitude established for the benefit of a plantation belonging to him, over a plantation or tract of land the property of the defendants in the case — the servitude consisting of a canal cut through the land of said defendants for the drainage of his, relator’s, plantation. He charged that the said defendants had threatened and attempted to close up the said canal; and it was further alleged quoting from the petition “ that defendants’ action in closing said canal as aforesaid, or otherwise infringing upon the rights of servitude in favor of the property owned by the petitioner, would cause him an irreparable injury. That the conduct of defendants which made this injunction necessary has damaged him to the extent of five hundred dollars.”

The prayer of the petition is as follows :

“ Wherefore, petitioner prays that defendant be cited, etc.; that a writ of injunction issue enjoining, etc., from closing up or in anywise obstructing the said ditch,” etc. * * *

“That after legal delays and due proceedings, said injunction be made perpetual, and defendants condemned to pay petitioner the sum of Jive hundred dollars as damages, and costs of suit, and for general relief,” etc.

The judges of the Circuit Court construed this prayer to limit the matter in dispute simply to the amount of the damages claimed, and thus concluding assumed jurisdiction of the cause. We note as a singular fact, however, that though they ruled that the issue was thus restricted, in the opinion rendered by them they entered fully iDto the question of the servitude claimed and rejected the relator’s claim thereto. It is satisfactorily shown by the record that this right of servitude was worth $14,000. If that was in contest in the suit, and by their opinion and decree the judges virtually so held, it was clearly beyond their jurisdiction.

It is true, considering the claim set out in the body of the petition, and the language of the petition respecting it quoted above, that the prayer seems very meagre, and certainly shows inartistic and defective pleading, and has produced the whole difficulty in the case.

It seems to us that, when the Circuit Court confined the demand in suit, under their construction of the prayer of the petition, solely to the damages asked for, it might be reasonably argued that the only logical judgment it could have rendered was the dismissal of the suit. For it is to be noted that when the suit was commenced the cajjal was neither wholly nor partially closed, but it was merely alleged that the closing of it had been threatened or attempted, and that five hundred dollars damage, or any damage in fact, could have been caused by a mere threat or attempt to do an act, seems somewhat problematical.

The error committed by that court (and we hold that it was in error) was in testing the matter in dispute by the narrowest construction of the language of the prayer of the petition.

It is clear to our minds, from fcho plain wording of the body of the petition touching the claim therein, which is accurately and explicitly set forth as to its character and mode of acquisition, considered together with the prayer of the petition, that the sole object or purpose of the suit was to secure to the plaintiff therein the benefit of the servitude or right of drainage claimed, and to prevent its destruction. And we hold that to determine the matter in dispute in a suit it is essential to be guided and governed not alone by the verbiage of the prayer, but that the entire petition should be considered. 3 Ann. 268; 10 Ann. 719.

And it has been further held that a mistake in the prayer of the petition will not prejudice a plaintiff’s right to recover on tire averments of his petition where they are sufScient to Sustain the proper action, and there is a prayer for general relief. 15 Ann. 426.

When we make, however, a critical analysis of the language of the prayer of the petition, considered with reference to the plain averments in the body of the petition, it seems plain that the demand made even by the prayer is substantially to establish judicially the right to the servitude claimed.

As before stated, the character of the servitude is fully described, as likewise its use and benefit to the claimant; how it was acquired, and the irreparable damage that would be caused by its destruction or loss, and then follows the prayer that the defendants be enjoined “from closing or obstructing in any manner the canal, and that the injunction be perpetuated.” In other words, a decree was asked by which the use and benefit of the canal — which the petitioner then enjoined — should always be preserved to him, and this prayer necessarily included the recognition of the relator’s right to it.

Our conclusion is that the Court of Appeals exceeded the bounds of its jurisdiction in determining and trying and rendering judgment in the case of J. M. Levet vs. Charles and Antoinette Lapeyrollerie, above referred to, and that said proceedings and judgment of said court are null*and void, and that the judgment of the district court was in no manner disturbed thereby.

It is, however, urged as a bar to any action by this court, that the judgment of the Circuit Court had been executed by closing the canal in dispute by the respondents herein, and that therefore the writ came too late. Even could we take cognizance of such a fact, which is made to appear only by the ex parte affidavit of respondents’ attorney, still by the same affidavit it is shown that the canal, though thus closed, has been reopened by the removal of the dam closing it, and therefore, it seems that the status of the matter in dispute had been restored, and is now just as it existed when the injunction against its closing was first issued by the court at the first instance.

The writ of prohibition is, therefore, made peremptory, at the cost of the respondents.


text:
    No. 9839.
    The State ex rel. M. J. Savage vs. N. H. Rightor, Judge, etc.
    Mandamus will not lie to compel a judge of tlie district court to grant an injunction which lie has refused,when the case for injunction does not fall within any specific provision of law, but is based only on the general provision of Article 303, O. C., authorizing judges to grant injunctions when necessary “to prevent any injurious act.” Such applications are addressed to the discretion of the judge, which is not subject to control under our supervisory jurisdiction.
    A PPLICATION for Mandamus.

      Alfred Goldthwaite for the Relator.
    . W. S. Benedict and Henry lienshcm for the Respondent.
   The opinion of tlie Court was delivered by

Fenner, J.

The facts out of which this application grows are briefly these:

McCall brought a petitory action against Savage to recover certain immovable property. Savage answered, setting up general and special defenses and praying, in event of judgment against him, that he be recognized as a possessor in good faith and as such entitled to the value of improvements and disbursements.

The district court rendered judgment rejecting McCall’s demand and the latter took an appeal to the court of appeals. That tribunal rendered its final decree as follows: That there be judgment in favor of plaintiff and against defendant, “decreeing the said William John McCall to be the owner, and as such entitled to the ■possession of the property described in the pleadings,” (describing said property) “and that the plaintiff’s rights to sue for and recover the rents and revenues of said properties be and the same are hereby reserved; and it is further ordered, adjudged and decreed that there be judgment rejecting the reconventional demand of the said defendant, M. J. Savage, for disbursements in respect of said above described properties, as having been made too vaguely and indefinitely hi his pleadings to entitle him to make any proof thereof on the trial, or to recover any judgment therefor in this action; with reservation to the said M. J. Savage of the right to sue hereafter, as he may be advised, for the recovery of any disbursements in respect of said property made by him and for which he may be entitled to recover according to law in a proper proceeding.”

This decree was rendered executory by proper proceedings in the district court.

Thereupon, Savage, availing himself of the reserve in his favor contained in the decree, brought his action against McCall for his disbursements, alleging his possession in good faith and his right under Article 8453, C. C., to retain the property until he is reimbursed the expenses he has incurred on it. Further averring that McCall was about to execute the foregoing final judgment and thereby to dispossess him without such reimbursement, he applied for a writ of injunction, on due affidavit and bond, restraining such execution and dispossession until the'reimbursement claimed was made.

The judge, after hearing the parties, concluded that it would be improper for him to enjoin the execution of a final decree of the appellate court having jurisdiction over him, which decree unambiguously recognized McCall as entitled to be put in possession of the property, without restraint or qualification, and he refused to grant the injunction.

Hence, this application for mandamus, in which relator, averring that it was the plain duty of tho judge to issue the injunction, that his refusal was a denial of justice and that it will work him an irreparable injury for which he has no other adequate remedy, appeals to our supervisory jurisdiction for relief.

The case falls clearly and distinctly within the authority of New Orleans vs. Telephone Company, 37 Ann. 571, in which, after full discussion, we reached the conclusion summarized in the syllabus, as follows:

“In cases not falling within those specially provided in the Code of Practice or other statute as proper for the issuance of injunctions, but based on the general discretion vested in judges to grant injunctions when necessary to prevent any injurious act, the application is addressed to the sound and legal discretion of the judge.”

We search the articles of the Code of Practice and the statutes without finding any provision authorizing injunction in the specific case presented by relator, except the last clause of Article 303; and having held that, as to applications under this general clause, “discretion is vested in the judge to determine whether the injurious act set forth is one proper for the exercise of the remedy by injunction,” that at once removes the case from the pale of our supervisory jurisdiction. We use this power only to enforce the performance of duties imposed by law on inferior judges — never to control their discretion. The judge had, , the right to exercise his discretion in the matter, and having done so in evident good faith, the question whether lie erred or not is utterly irrelevant in this application.

The case of State ex rel. Murray vs. Judge, 36 Ann. 578, on which relator relies, contains nothing inconsistent with the foregoing. The Court was there occupied with the general question of whether, in any case, mandamus would lie to compel the granting of an injunction, and we held that, in “ clear cases,” it would; but we, by no means, held that it would lie in all cases; and, indeed, refused it in that very case.

It is, therefore, ordered that the mandamus be denied.


author: Mr. Justice Poché; Mr. Justice Todd

text:
    No. 9768.
    The State of Louisiana vs. Leon Levy and Andrew Trégre.
    Qn Application for Habeas Corpus, for the Privilege of Bail.

      Sims (& Poché, for tho Relator.

      J. L. Gaudet, District Attorney, and F. O° Zacharie, contra.

   By

Mr. Justice Poché; Mr. Justice Todd

concurring:

Considering that the commitment under which the defendants are held in custody emanates from the Judge of the Twenty-second Judicial District Court, a court of general jurisdiction and of special juris-• diction in the premises, and that the same was issued after a thorough preliminary examination, at which the accused introduced evidence, and were heard by counsel;

Considering that the power of the Judges of the Supreme Court of this State to issue and entertain writs of habeas corpus, is one of original jurisdiction, concurrent with, and not superior to, the same power which is vested in district judges, (Constitution, arts. 89 and 115), and that the attempt of a judge or judges of the Supreme Court to review the commitment, shown to be regular and legal in form, issued by a competent district judge, would be in reality a sort of collateral appeal, not granted by law or sanctioned by the Constitution, (Church on Habeas Corpus, p. 304, and authorities therein cited;) it must be held that the judges of the Supremo Court are powerless to review the commitment of the district judge, when it is issued after a preliminary examination, and that, therefore, the relief herein prayed for cannot be granted.

It is, therefore, ordered that the application for a habeas corpus made in this case, be dismissed, and that the application of the defendants to be admitted to bail be denied.

F. P. POCÍIÉ,

R. B. TODD,

Associate Justices.


text:
    No. 9771.
    The State of Louisiana vs. Stephen Morales.
    On Application for Bail by Writ of Habeas Corpus.

      David N. Harrow, for the Relator.

      Alex. Hébert, District Attorney, contra.

   By

Mr. Justice Poché; Mr. Justice Todd

concurring:

After a preliminary examination by the district judge for the parish of Iberville, on a charge of murder, the accused was committed for trial without the benefit of bail, hence his present application for bail by means of the writ of habeas corpus, on the allegation that the testimony produced against him did not render the proof evident or the presumption great that he was guilty of murder, as charged.

The record shows that the preliminary examination was ordered at his own instance, that it was thorough and legal, and that he was heard by counsel; hence, that examination answers all the purposes contemplated by law to be afforded by the writ of habeas corpus; and the evident object of the present application is to obtain a review of the finding and order of the district judge. “ The great and primary object of the writ of habeas corpus is to afford judicial relief to parties who are illegally deprived of their liberty.” State ex rel. Conden vs. Sheriff, 36 Ann. 856.

In this case the accused has had judicial action by competent authority, on his application for bail, and it does not appear that he is illegally deprived of his liberty. Unless glaring injustice has been done to an accused by a district judge in a preliminary examination, the judges of the Supreme Court will not feel authorized to reverse the order therein rendered, by means of the writ of habeas corpus.

The circumstances surrounding this application are almost identical with the facts in the case of the State vs. Levy and Tregre, recently discussed, and the present application, must, as it should, share the same fate.

It is, therefore, ordered that the defendant’s application for bail be denied, that the proceedings for habeas corpus be dismissed.


author: Bermudez, C. J.

text:
    No. 9841.
    The State ex rel. J. L. Smith vs. The Judge of the Eighteenth District Court, Parish of St. Tammany.
    Exceptions to the form of proceedings do not draw in question the jurisdiction of the court.
    It is not until an exception to the jurisdiction of an inferior court has been filed and illegally overruled that a prohibition lies from this Court.
    A PPLICATION for Certiorari and Prohibition.

      White & Saunders, JP. A. Guyol and W. B. Lancaster for the Relator. Respondent in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

The relator complains that the district court has illegally overruled an exception to its jurisdiction, and that it persists in passing on the merits of the controversy.

The district judge denies the filing of such exception and claims that he has a right to hear and determine the case.

The suit is one in which the election of relator as mayor of Mandeville is contested by one who pretends to have been elected 'to that office.

The exception which was filed charges:

1st. That plaintiff’s petition was not filed in compliance with the law governing contested elections, and does not disclose a cause of action ;'

2d. That it was not filed in due time, is vague and indefinite ;

3d. That it was not accompanied by the petition of voters required by law, and the defendant reserved his right to answer to the merits.

Those exceptions cannot be viewed as questioning the jurisdiction of the court over the controversy. Far from doing so, they invoke its exercise for the dismissal of the proceedings as irregular in point of form.

It has been repeatedly held that it is not until a formal exception or objection to the want of jurisdiction of the court has been filed or made, and illegally overruled, that a prohibition will issue.

The ruling in 35 Ann. 1104, does not apply to the instant one.

It is therefore ordered that the restraining order herein made he rescinded, and that the application he dismissed with costs.


text:
    No. 9773.
    The State ex rel. B. D. Wood & Bro. vs. The Judge of the Fourth City Court of New Orleans.
    Where a court acts clearly within the bounds of its jurisdiction, and no vital defects or irregularities mark the proceedings in a case before it, this Court will not, under its supervisory powers, annul the judgment rendered in such case though it may he contrary to the law and the evidence.
    Inferior courts should, as a rule, respect the decisions of appellate courts and be guided by their authority; but though it may be charged that the judge of an inferior court has refused to be governed by the decree of the appellate court, on an appeal from one of his own judgments in his (the inferior judge’s) decisions in other like cases before him, this Court is without power to compel him to conform his action and conclusions to the views of such higher tribunal.
    A IMPLICATION for Certiorari and Prohibition.

      W. 8. Benedict and Henry Benshaw for the Relators.

      T. M. Gill for the Respondent.
   The opinion of the Court was delivered b3r

Todd, J.

The relators, feeling aggrieved by the action of the respondent judge with respect to certain suits brought before his court against the relators by one James Sweeneyy and judgments rendered therein, seeks relief therefrom b3r means of writs of certiorari, prohibition and mandamus. The facts relating to said proceedings, and the matters complained of and the causes of complaint, are almost identical with those reported in the opinion delivered by this Court in a case of a similar title and between the same parties. 38 Ann. 377. In that case the relief asked was denied.

There, as in this instance, the relator charged in substance that the plaintiff, in the suits tiled in the, respondent’s court, had subdivided a large claim as alleged indebtedness of the relators into small sums and • had instituted separate suits on the same — the amounts being unappealable; that judgments had been rendered therein contrary to the law and the evidence; that this mode of procedure was adopted in order that the relator should be unable to get relief from the illegal judgments by appeal; and that with the same view the judge refused to consolidate the cases, although the demands therein were but parts of the same alleged debt.

The only further ground of relief that he relies on in the present application is in effect that, since the decision of this Court in the previous case mentioned, one of the numerous suits before the respondent’s court was found to be appealable and that an appeal had been taken from the judgment rendered therein; and that on appeal the judgment appealed from had been reversed; that a cop3' of this judgment of the appellate court had been exhibited to the respondent judge, but that he had persisted in rendering in the remaining cases pending before him similar judgments to his former ones.

It was also urged that the respondent had likewise disregarded a decision of this Court which was favorable to the rights of the, relator-in the suits of Swinne3' against him referred to.

After mature consideration, wo have reached the conclusion that the further grounds urged in the application now before us, be3'ond those presented by the relator in the previous case referred to, do not bring him within the scope of the supervisory powers that may be exercised b3’ this Court over the proceedings of inferior tribunals.

Each one of the suits instituted before the respondent judge, as was said in the previous case decided by us, was clearly witbin Ms juris - diction, and there is no charge of the want of citation or any other vital irregularity in the proceedings.

As to the case appealed to the district court and the judgment therein reversed, there is nothing in the record before us to show us what facts were proved and what issues of law were presented either in the court of the first instance or in the appellate court where the case was tried de novo, and there may have been just reasons resulting from further or additional evidence or new legal questions presented justifying the judgment of the latter tribunal.

There are no transcripts of the proceedings and evidence in the two counts to enable us to verify the allegations of the relator that the case was tried upon the same evidence and legal issues. So that the reversal of the judgment rendered by the respondent judge in a single case cannot be held as conclusive that his conduct was arbitrary, illegal and unwarranted in the other cases as charged. If in the case appealed there had been a decree remanding the case and requiring the respondent judge to render some special judgment or do some specified act with reference thereto, and he had refused to do it, then there might have been some reason for the interposition of a higher court; hut the judgment of tlie superior court in a single case was no imperative mandate to him to render a like judgment in similar cases, nor operated to entirely override and control liis judicial discretion in such cases.

Putting it in the most favorable light for the relator, whilst it is proper as a general rule that the judges of all inferior courts should respect the authority of the appellate courts and be ruled by their decisions, we find no warrant in this Coiu-t, at least under the circumstances presented in this case, to compel them to do it.

The restraining order heretofore issued is therefore set aside, and the application for the writs mentioned is denied at the costs of the relator.