text:
    No. 12,607.
    William G. Vincent vs. Benjamin Frelich.
    "One of the buildings leased (not both) was rendered temporarily uninhabitable by the fire. To restore the building temporarily uninhabitable, repairs were necessary, and not reconstruction.
    The building could have been put in condition for use in seventeen days. The •defendants after the fire remained in possession more than that number of days. Those who held the premises under the defendants and for their benefit, objected to the work of repairing, and prevented the possibility of repairing the building within the time stated.
    While the lessor ought to make, during the eontinuauee of the lease, all the repairs which may accidentally become necessary, the tenant should not interpose obstacles to the work of repairing,
    Partial destruction remediable by repairs and which do not require reconstruction, will not give good grounds to dissolve the lease.
    The judgment of those who are skilled in matter of building and the repair of building as to what constitutes reconstruction, and what constitutes repairs of a building, is entitled to great weight.
    Where the lessee has property to store immediately after a fire the offer to him by the lessor of a store room as an accommodation is not grouDd to rescind; nor does it necessarily manifest a desire to put an end to the lease. The annulment of leases is not favored, where the lessor is not at fault. 21 An. 23; 6 An. 379.
    Where lessees abandon the premises, the lessor may, for the purpose of minimizing the loss, offer " to let ” the property. Such acts will not cancel the lease. 6 An. 74.
    The petition and the document annexed are construed together, and error in the petition as to interest was amended by reference to the contract of lease annexed. 15 L. 116; 5 An. 575.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      E. Evariste Moise for Plaintiff, Appellee.

      F. L. Richardson (Rogers & Dodds of Counsel) for Defendant, Appellant.
    Argued and submitted December 4, 1897.
    Opinion handed down January 24, 1898.
    Rehearing refused April 4, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an action for rental.

The lease was entered into for five years, beginning May, 1898.,

The rental was one hundred and fifty dollars a month. Two four-•story brick stores, Nos. 226 and 228 Decatur, of this city, was the property leased. They were connected by open arches in the •dividing wall; one could step or move goods from one building •to the other; they were fitted up for defendant’s plant.

A fire on September 5, 1896, damaged one of the buildings leased, also the plant of the lessees. They were manufacturers of jeans clothing, and the buildings had been fitted up for the particular business in which the defendants were engaged.

Immediately after the fire, the tenants surrendered possession to the insurance companies in which they were insured, for adjustment of the loss and settlement. They held possession until the 23d of September, and during their possession they refused to permit the builder employed by the landlord to enter the building to work thereon as he had contracted. After the insurance adjuster had completed the adjustment of the loss of the tenants, the latter resumed their possession, and retained it a few days.

The contract of lease between the plaintiff and defendant contains the usual clauses of leases, save the following, which was also inserted in the contract: Should the property be destroyed by fire, or should the lessee be deprived of the use of said premises by some other unfortunate event, not due to any fault or neglect on their part, then the lessee shall be entitled to a credit for the unexpired time of the lease;” and the following: “ No repairs shall be due to the lessee except such as may be needed to the roof or floor, or rendered necessary by fire or other casualty, not occasioned by the lessees fault or negligence.”

Returning to the matter of the extent of the injury done td the building, the testimony shows that one of the roofs, that on building 228, was destroyed by the fire, and part of the building; a detail statement given shows that the injury (in addition to the destruction of the roof) was to the upper floors, stairway and water-closets which were in the building 228.

The building adjoining, 226, was not as badly damaged. The builder, by whom the injury, after the fire, was carefully examined, to whose testimony much weight is given by all parties to the suit, testified that the defendants could have continued the operations of their plant after the damage, had they chosen so to do, until the end of his contract.

• The plaintiff immediately after the fire offered another building to the defendants to store away their property, until the repairs were made. He also after they had refused to continue their lease placed, a notice to let ” on the buildings.

It also appeared that the defendants desired to lessen the extent of their business; that they became the lessees of a seventy-five dollars a month one-building place, instead of plaintiff’s one hundred ar.d fifty dollars a month two-building place; that defendants di\3 not make the least inquiry of the builder, who was anxiously awaiting to begin the work of repairing. It is also in evidence that such was the condition of defendant’s factory after the fire that it would not have been possible for them to resume operations in twice the number of days needed for the repair of the buildings.

These are the prominent facts.

From an adverse judgment the defendants prosecute this appeal.

The damages to the building rendered them, in their unrestored condition, unfit for the purpose for which they were leased. One of the buildings, however, was only in a small degree damaged.

Experienced mechanics, who had carefully examined the leased property, were decidedly of the opinion that the less-damaged building could have been occupied by the tenant while the building badly damaged was being repaired.

The builder and contractor, who had bound himself to make needful repairs on these buildings in seventeen days, testified that he had examined the property thoroughly, to see how much the repairs would cost. That the work required consisted of repairs and not of reconstruction; that the defendants might, while he was at work in one of the buildings, have occupied the other; that such moving is a little inconvenient, but that it is done frequently. The testimony of this witness is corroborated by another builder and contractor. They had.the experience rendering them competent to judge the extent of the damage, and the amount it was worth, and the time it would take; they also are presumed to have a practical knowledge of the difference between repairs and reconstruction. Their evidence in a case such as the one before us for determination should evidently have more weight than that of the merchant or manufacturer of clothing, however skilful he may be in his business.

The question involved is more particularly within the domain o,f the architect than of the jurisconsult. Baudry-Lacantinerie, Vol. 3, p. 409.

The following we translate from Laurent, Vol. 25, p. 121:

“ The ordinary carpenter,” said Laurent, “ would have taught Troplong that his notion of repairs is not correct, and that no one has ever thought of releasing a lessor from making the repairs he mentions.”

Prom another section of the work of the same commentator we translate: The facts in each ease almost always give rise to discussion (Ib., par. 41).

From Dalloz we glean: It is for the court as a matter of fact, and not strictly of law, to determine whether it is a matter of “ reconstruction ” and not of repairs, after having heard a report of expert builders. If the repairs require only a short delay within which it is possible to make them, and the proprietor offers to the tenant another house temporarily, the lessee has no ground of action to dissolve (par. 181, Vol. 30, p. 307).

Here defendant’s witness, Richard, corroborated by Mass, were the only witnesses in the case who had practical knowledge of building. They testified that the work consisted of repairs,” and not reconstruction.”

A building, as we understand, is repaired “ after it-has been damaged;” it is reconstructed after it has been demolished as a whole or in part.

The cost of repairing in the case here was much less than the value of the whole building.

Marcadé, Vol. 6, p. 450, thus expresses his views under similar articles of the Oode to ours: When the fire of heaven or any other

unforeseen cause of destruction strike a building, three things are possible:

It may be completely destroyed, it may be destroyed in part, or it may be only damaged. Without question every demolishment is a destruction, and if a violent blast of wind causes the fall of a chimney, it might be said that there is a partial destruction of the house, the chimney being destroyed; but this reasoning is not exact, and when, as in the case supposed by M. Troplong, a gust of wind throws down the chimney, tears out the Persian blinds or shatters the windows, or when unusually heavy snow weighs down the roof, it will not be said that for that reason the building is destroyed, even in part, but that it was damaged, and that the work- to be done as relates to the whole building will not constitute a reconstruction, even partial, but exclusively a repair.

Damage to a building, different from partial destruction, gives to neither the lessor or the lessee the right to terminate the lease.

The following is in point:

Even in a ease important enough to give to the lessee the right of complaining, it may not be sufficiently important to sustain a demand for a dissolution of the lease. The lessee has a right of action to the extent only that he is subjected to a substantial loss; to the-extent only that the injury renders the building not fit for the use foiwhich it was leased. Dalloz, Vol. 30, par.

We pass from a brief review of the French authorities to a consideration of the decisions of this court cited by the defendant’s counsel:

In Higgins vs. Wilner, 26 An. 544, the facts were not stated at any length in the decision. We had recourse to the record of the case,, in the clerk’s office, and found that one of the buildings leased had been entirely destroyed by fire, also scaffolding necessary to the-tenant’s business. New constructions were needed to restore the premises to the condition in which they were prior to the fire. Said the court in that case: “The thing leased was destroyed in part,”' alluding, as we infer to the building and other property destroyed c as part of all the property leased. Here it is different, no building was entirely destroyed by the flames.

The dictum of the court in Penn vs. Kearney, 21 An. 21, can have no weight here. The lease was not canceled and the lessee was held bound despite the vigorous claim set up by him that he had been discharged because of destruction by fire.

It is true that in Meyer vs. Henderson, 49 An. —, the lease was-annulled. The facts in that case were that the injury to the building leased by plaintiffs from defendants made it entirely unfit for-the purposes for which it was leased. “ It was a wreck,” said the-court, “it was not habitable, it was unfit for the storage of goods- and merchandise, and it took months to restore it to what it was.”'

In Coleman vs. Haight, 14 An. 564, another case cited for defendants, the question related to the rental and the lease involved in the-discussion was not annulled. In fact, there was no claim set up for the annulment of the lease.

The facts upon which the case here turns, is that the work consisted of repairs; that the tenants continued in their occupancy after the fire more days than it would have taken to make the repairs; that during their occupancy, hinderances were interposed to prevent lessor from making needful repairs. The continued occupancy by the defendants, as a matter of necessity perhaps, did not render less prominent the reality that they did remain quite a length of time in the building more than actually required for the removal of their property from the leased premises.

The authorities we have consulted (we have consulted quite a number) are not inclined to countenance the dissolution of a lease when the lessor is not at fault. Dussnau vs. Generis, 6 An. 279; Penn vs. Kearney, 21 An. 23.

We are not impressed by the theory advanced on the part of ' defendants of abandonment of the lease by the lessor because of the offer made by him to the defendants, of a building to store their property during the time required to make needful repairs. The purpose, as we seize the offer, was to lessen as much as possible the inconvenience to which the tenant had been put by the fire.

With reference to the sign “to let” put up by plaintiff on the front of the building, we do not conclude that it had the meaning and effect contended for by the defendants; the plaintiff testified that his purpose was to minimize the damages — we have no reason to conclude that such was not the case. The plaintiff at all times •opposed, all indications of -defendants’ intention to leave the premises. In letters to and also in conversation with them, he declared that they should remain; that they had no cause to dissolve the lease. Putting up a sign “ to let ” was not good ground of itself under the circumstances; had he gone further and leased to new tenants, it would not have destroyed his recourse against his tenant, if the purpose was to allow for the rent collected. Holden vs. Tanner, 6 An. 74.

In the answer-to the appeal the appellant asks that the judgment be amended so as to increase the interest allowed from five to eight per cent, on the principal allowed by the judgment. • We are informed that it was an oversight. The contract of lease stipulating eight per cent, was annexed to the petition and shows the amount due as interest' and renders it manifest that there was error as stated in preparing the petition. Similar differences arising from error have been-amended by reference to the document annexed to and forming part of the petition. Brumfield vs. Morty, 15 L. 116; Smith vs. Nash, 5 An. 575.

It is ordered, adjudged and decreed that the judgment appealed from be and it is amended, by increasing the interest allowed from five to eight per cent. As amended the judgment is affirmed at appellee’s costs.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,679.
    R. Beltran vs. E. D. Leche.
    A mortgagee takes out executory process. Tlie mortgagor enjoins on the ground of outstanding title to part of the property in a third person. The third person appears And by authentic act disclaims title, and the act is duly recorded.
    This act is held not to be a.donation and not subject to the provisions of law relating to such dispositions, nor to the implied conditions the law attaches to the same.
    It is what it purports to be, a disclaimer of apparent title, and estops the maker and those claiming under and through him.
    The cause of complaint being removed the injunction falls.
    APPEAL from the Twentieth Judicial District Court for the Parish of St. James. Guión, J.

      Robert G. Rugué for Plaintiff, Appellee.

      Sims & Lambremont for Defendant, Appellant.
    Argued and submitted December 30, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff, R. Beltran, in January, 1894, by authentic act sold and conveyed to defendant, Leche, certain lands in the parish of St. James cultivated as a sugar plantation, and an additional tract of 25L 22-100 acres of swamp land near the plantation. Following the description of the lands sold is the statement that it is the same property acquired by the vendor from David August and Paul Gauthreaux in February, 1892.

Fifteen thousand dollars is mentioned as the consideration of the sale, of which three thousand dollars was cash, and for the remainder, six notes were executed by the purchaser, each for two thousand dollars, the first maturing January 2, 1896, and one each subsequent January thereafter. A special mortgage and vendor’s privilege was retained to secure payment of the notes.

The first two notes to mature were not paid, whereupon plaintiff-sued out executory process in foreclosure of the mortgage and privilege.

The sale of the property was enjoined by defendant on the ground of a deficiency in the quantity of land conveyed to him.

He claimed that the consideration of the sale had failed .to the extent of the 251 22-100 acres of swamp land; and that plaintiff had no title thereto at the date of the transfer to him.. He asked a diminution of price and other appropriate relief.

The deficiency was represented to be due to the fact that William H. Aymar claimed to own and to be in possession of the swamp lauds mentioned.

Defendant in the injunction proceedings (plaintiff in the original suit) met this by a general denial, and annexed to his answer an authentic act, executed by Aymar, in which he expressly disclaimed any right, title or interest in the lands which are described and referred to as the subject of the injunction suit herein. It is stated by Aymar that his object and purpose in executing the act is to remove any and all doubts as to the validity of the title to the lands conveyed by Beltran to Leche, and that he renounced in favor of Leche and Beltran, their heirs and assigns forever, whatever right, title or interest he then or theretofore had in the same.

It was shown that this act had been duly recorded in both the conveyance and mortgage records of the parish of St. James, and that no mortgages or other incumbrances affecting the land were of record in the parish in the name of Aymar, and that there were no outstanding antagonistic alienations of it, or any part of it, by him.

On this exhibit judgment was rendered dissolving the injunction and ordering the sheriff to proceed with the execution of the writ of seizure and sale, but condemning the defendant (Beltran) to pay the costs incurred since the filing of the petition for injunction.

Plaintiff in injunction appeals, and defendant, appellee, asks an amendment of the judgment, rejecting and dismissing outright the injunction proceedings.

It is claimed on behalf of the former that the documentary evidence offered by him on the trial shows a perfect outstanding title in Aymar to the two hundred and fifty-one and twenty-two-one hundredth acres of swamp land referred to,' and because of this he is evicted therefrom and entitled to a diminution of price to the ■extent of the value thereof.

And it is urged that Aymar’s disclaimer or renunciation of title is not a valid or legal alienation of property sufficient to protect plaintiff ; that it is an attempted gratuitous disposition, not binding on the community of acquets and gains existing between Aymar and his wife; that it is liable to be attached by creditors and subject to the eventual reserved rights of his children as forced heirs.

It is further contended that the document is not a sale, because without consideration, and if not a donationis nothing.

On behalf of defendant in injunction it is insisted that Aymar is bound by his act of disclaimer, and that he and his heirs are completely estopped thereby from ever hereafter asserting any interest in the lands.

We are of opinion that the provisions of law in regard to gratuitous dispositions of property, donations inter vivos and the like, are not to be applied to the facts of this case.

The tract of land in dispute appears to have been included in the description of lands conveyed to Beltran in 1892. He conveyed it, with other lands, to Leche. The latter, failing to pay the price, is proceeded against under the mortgage reserved. He resists the proceedings on the ground that Aymar has a title of record to part of the property. Aymar appears and disclaims title and the act of dis-cl iimeris placed of record.

Thereafter the buyer can no longer claim to be “ disquieted in his possession.”

By procuring the act of disclaimer and renunciation “the seller has restored him to quiet possession, or caused the disturbance to cease,” in the language of C. C. 2557. His complaint fell when Aymar repudiates the suggestion of the title in himself. Thereaf - ter “ a perfect outstanding title to a third person ” (34 Ah. 1202) could not be shown to exist.

The act executed by Aymar was not a donation inter vivos, and, therefore, not subject to the provisions of law relating to such dispositions, nor to the implied conditions the law attaches to the same.

It is what it purports to be, a public declaration by the alleged owner that the property is not his; that he has no interest in or right to it. It is a disclaimer of apparent title, and estops him and those claiming under and through him.

Even if it were a donation, we think, under the facts governing the case at bar, the contingencies suggesced by counsel for appellant, such as forced heirs of Aymar, accepting under benefit of inventory, bringing an action of reduction or to revendicate property in excess of the disposable portion, the possible claims of the community, the liability of attack by creditors, and the like, are too remote to justify interfereuce with this creditor, who seeks to enforce his special mortgage and vendor’s privilege on property the' possession of which is in the defendant buyer under a title which he had deliberately accepted!.

It is unlike an action to compel acceptance of title, as in Tessier vs. Roussel, 41 An. 474.

Here the buyer has not the same liberty to refuse payment of the price, or resist sale of the mortgaged property, as he might have to refuse title tendered him under an agreement to purchase.

It is not shown that Aymar is insolvent. C. C. 1517.

There is here no <£ present state of admitted insolvency,” as in the Tessier case, p. 478.

The only danger which the plaintiff in injunction professed to fear —outstanding title in Aymar — having been removed, he has no cause to complain of the judgment from which he has appealed.

Nor do we think defendant in injunction should complain of the judgment, which awards against him the costs incurred since the filing of the petition for injunction.

It was the injunction which brought about the disclaimer from Aymar, and .thus removed the cause of plaintiff’s complaint. It is just, therefore, that that portion of the costs of this litigation should be borne by defendant.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 12,594.
    State ex rel. E. F. Perilloux vs. W. O. Wilder, Magistrate.
    A sentence imposing a fine for violation of a municipal ordinance was sought to be appealed from, alleging the illegality and unconstitutionality of the fine.
    It appearing that the judgment in question has been acquiesced in and the fine imposed paid without qualification or protest, the writ of mandamus to compel the granting of the appeal is denied.
    QN APPLICATION for Writs of Mandamus and Certiorari.

      H. L. Garland, Jr., for Relator.
    Respondent in propria persona (Stifft & Madison of Counsel) .
    Submitted on briefs December 16, 1897.
    Opinion handed down January 10, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The complaint is that relator is denied the right of appeal, and the writ of mandamus is invoked to compel the granting of the same.

It appears that in May, 1897, the relator was charged before the mayor’s court of the town of Slidell, parish of St. Tammany, with the violation of a municipal ordinance prohibiting any one from conducting the business of retail liquor dealer without having previously obtained a license.

On the trial he excepted to the power and jurisdiction of the court upon various grounds, among others that the ordinance in question is illegal and unconstitutional, and that Act No. 8 of 1896, authorizing municipal corporations to impose fines and imprisonment for non-payment of licenses as aforesaid, is unconstitutional.

His exceptions being overruled, he answered admitting the offence charged. Whereupon he was adjudged guilty and fined "twenty-five dollars or ten days in the town jail.

A month later he applied to this court for writs of certiorari and prohibition against the enforcement of the sentence. A rule nisi Issued, but on hearing was discharged on the ground that the mayor’s court having jurisdiction, and there being an adequate remedy by appeal from its judgment, the writs applied for would not lie. 49 An. 1211.

Sometime later relator filed an application in the mayor’s court for •an appeal to this court from the judgment imposing the sentence aforesaid. The mayor refused to grant the appeal, and thereupon relator filed the application for mandamus under consideration, averring that he has deified by appropriate pleas the legality and constitutionality of the fine imposed.

The respondent mayor, for cause why the writ should not be granted, returns and shows that on the trial aforesaid before him the relator, after his exceptions were overruled, filed an answer admitting the acts complained of and for which he was arrested, whereupon, after due trial, he was found guilty, sentenced to the penalty hereinbefore mentioned, and that the fine and costs were paid and the accused released from custody.

He, therefore, pleads that the relator having been convicted, sentenced, the decree satisfied and the prisoner discharged, no cause exists for the writ sought.

Relator does not seek in any way to traverse this return. Indeed, we have been favored with no statement, or' brief, on his behalf other than his petition for the writ.

It thus appears that the judgment from which an appeal is sought has been acquiesced in, and the fine imposed paid without qualification or protest.

Under such circumstances the law denies the right of appeal. C. P. 567; State ex rel. Lamarque vs. Recorder, 39 An. 328; Colvin vs. Woodward, 40 An. 629.

It is therefore decreed that the peremptory writ of mandamus be refused, and that the preliminary orders herein granted be discharged at relator’s costs.


author: Breaux, J.

text:
    No. 12,631.
    Union Oil Company vs. Boland S. Leathers et al.
    Appeal dismissed lor reasons assigned in Oil Company vs. Leathers, just decided.
    APPEAL from the Civil District Court for the Parish of Orleans King, J.

      Edwin T. Merrick for Plaintiff, Appellant.

      Geo. W. Elynn for Defendants, Appellees.
    Submitted on briefs November 15, 1897.
    Opinion handed down December 13, 1897.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff prosecutes this appeal from an order of the District Court dissolving the writ of injunction sued out by plaintiff on bond fixed by the court.

In this court the defendants moved to dismiss the appeal on a number of grounds chiefly.

That the injury apprehended by the plaintiff was not susceptible of adequate compensation in damages.

For reasons assigned in the case just decided, of the Southern Cotton Oil Company vs. Leathers et al., the appeal is dismissed. The facts are the same in this and in the cited case.


author: Watkins, J.

text:
    No. 12,562.
    W. B. Daniel vs. His Creditors.
    A syndic’s sale of real estate discharges only those incivrnbrances which the insolvent placed upon it, and not those by which it was burdened at the time he purchased it
    The vendee of mortgaged property is at liberty to mate a sale thereof to a stranger who consents to assume the payment of the mortgaged indebtedness as part of the purchase price, notwithstanding the original act contains the pact de non alienando; but to constitute such an assumption an abandonment of the right of the mortgagee thereunder he must either have intervened in the act and made a"formal renunciation thereof, or performed some other act of equivalent import.

      \ PPEAL from the Civil District Court for the Parish of Orleans. JTx King, J*.

      E. Evariste Moise for John J. Sborck, Plaintiff in Rule, Appellee.

      Biee & Montgomery for Mrs. Caroline W. Bellsnyder, Defendant in Rule, Appellant.

      Dinlcelspiel & Hart for Joseph Oury, Syndic, Defendant in Rule, Appellee.
    Argued and submitted December 3, 1897.
    Opinion handed down December 28, 1897.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

Mrs. Carrie B. Bellsnyder prosecutes this appeal from a final judgment which made absolute a rule which had been sued out by John J. H. Storck against the syndic of the general creditors of Daniel and the appellant as the holder of a note having a vendor’s lien and mortgage, on property which the syndic had sold, to compel them to show cause why the inscriptions of mortgages and privileges operating against a said property should not be canceled and erased — the plaintiff in rule having purchased said property at a public sale made by the syndic, his claim is, that the mortgages and liens should be transferred to the proceeds of sale and a clear and unincumbered title made to him.

The syndic, in answer to the rule, averred thatabehad declined to execute- such an act of sale as said purchaser demanded for the reason that counsel for Mrs. Bellsnyder, as'well as her agent, had notified him that she was not bound by said syndic’s sale, and that same did not, in any way, affect her mortgage; but he expressed a willingness to sign the act if the court so ordered.

The judgment of the court was in keeping with the allegations and prayer of the plaintiff in rule.

It appears that on the 16th of April, 1895, Mrs. Henrietta B. Cleveland, wife of Wm. B. Daniel, conveyed to widow Esther J. Trask three lots of ground, situated in New Orleans, for the price ■of four thousand dollars, of which the sum of one thousand seven hundred and fifty dollars is recited in the act of sale to have been paid in cash, and for the remainder, the purchaser executed her note for two thousand two hundred and fifty dollars, with vendors lien and mortgage consented thereon as security for the payment thereof — said note having been made payable to the maker’s own order, and endorsed at one year after date; and bearing eight percent, interest from date until paid.

The act of sale stipulated a special mortgage importing a confession of judgment in favor of the then present or any future holder of said note; and it also contained the covenant that in case of the failure of the maker to pay same at its maturity, the holder should be entitled to enforce said mortgage and vendor’s lien by executory proceedings, and the mortgaged property be sold without the benefit of appraisement.

The insolvent made himself a party to the act of sale and mortgage, which contains the stipulation of the pact de non alienando in these words, viz.:

“ Hereby binding herself and her heirs not to alienate, deteriorate, nor encumber the said property to the prejudice of these presents.” But Daniel did not sign the note nor promise to pay the same.

The act was duly inscribed in the mortgage office.

On the 29th of April 1896, the aforesaid purchaser, Mrs. Esther Jane Trask, by notarial act, conveyed the aforesaid mortgaged property with full subrogation and substitution and with all legal warranties to Joseph Oury, syndic of the creditors of W. B. Daniel, for the use and benefit of said creditors present accepting and purchasing same — the act of sale specifying particularly that it was the same property which the vendor had acquired from Mrs. Henrietta B. Cleveland, wife of W. B. Daniel.

The price stipulated in the act of sale as the consideration for the sale was two thousand three hundred and fifty dollars, one hundred ■dollars of which is recited to have been paid in cash; and iu satisfaction the balance the aforesaid syndic of the creditors of W. B. Daniél obliged and bound said creditors “ to pay in place and stead of the said Mrs. Trask notes up to the sum of two thousand two hundred and fifty dolíais, secured by vendor’s mortgage on said property.”

The act was signed by Mrs. E. J. Trask and by Joseph Oury — the latter appearing in the same as syndic of the creditors of W. B. Daniel, and it is signed by Max Dinkelspiel and JohnT. Whitaker as attesting witnessess.

It appears from the record that soon after the aforesaid transfer to Oury, syndic, John T. Whitaker, as agent and attorney for the appellant as the holder of said mortgage note for two thousand two hundred and fifty dollars, received payment from the attorneys of said syndic of the sum of one hundred and eighty dollars as the amount ■of-accumulated interest thereon up to the 16th of April, 1896 — adate only a few days prior to the date of the syndic’s acquisition of the property — said receipt of the attorneys bearing date May 16, 1896.

But at the foot or bottom of said receipt and over the signature of Whitaker, agent and attorney, occurs this phrase, viz.:

“Said creditors assuming the future payment of said note and interest.”

On the 20fch of January, 1897, the court a qua granted an order at the request of the syndic for the convocation of a meeting of the creditors of Daniel for the purpose of fixing the terms and conditions of the sale of the real estate standing in the name of the syndic of the creditors — the petition of the syndic suggesting the advisability of a sale being made.

On the 2d of February, 1897, the creditors were duly assembled and, as the result of their deliberations, they declared “that the property herein surrendered, recovered by the syndic, and now standing in the name of Joseph Oury, as syndic of the creditors of W. B. Daniel, be sold at public auction, on terms of credit, or cash, at the purchaser’s option.’ ”

In accordance with the foregoing order and recommendations, appraisers were appointed, and they appraised the property at 81800; and at the auction sale, in pursuance thereof, the property was adjudicated to the plaintiff in rule for the sum of 81200, same being two-thirds of the appraisement.

The testimony of Mr. Whitaker, agent, is to the effect that he represented Mrs. Mary Whitaker in collecting the interest on the mortgage note, for which he gave the above described receipt, and that he represented her for no other purpose.

That he collected the interest money from the attorney of Oury, syndic of the creditors of W. B. Daniel; that he had nothing whatever to do with the deed from Mrs. Trask or anything, appertaining thereto. That the mortgage note passed from Mrs. Whitaker to the appellant, Mrs. Bellsnyder, as her daughter and heir. That prior to the syndic’s sale he received a letter from the attorneys of the syndic, attracting his attention to the fact that the mortgaged property was to be sold; and he admits that he was present on the day the property was sold by the auctioneer, but for the only purpose of looking after the sale of another piece of property. That he was not the appellant’s attorney at the time of the sale.

The witness further states that he “ has never under any circumstances had any thing whatever to do with the insolvency of Daniel,” and he further declared that he had not at any time “ made any consent whatsoever in this matter as the representative of (his) mother, and could not have (done so) as the representative of Mrs. Bellsnyder.” He further states that to his knowledge neither has his sister or his mother taken any part in these proceedings.

The argument on the part of the appellant is, that she never in any way participated in the insolvency proceedings, and had no notice of either the proceedings in Daniel’s insolvency, or the alleged judicial sale which was made of the property on which she held a special mortgage containing the stipulation of the pact de non alienando, and a waiver of the benefit of appraisement, and the right tó proceed by executory process in the collection of his note against the then present or any future holder thereof without reference to, or regard for any subsequent alienation thereof — citing Levy, Syndic, vs. Sheriff, 48 An. 410, and other authorities therein referred to.

It is further to the effect, that the statement which is contained in the receipt that Whitaker gave the attorneys of the syndic for the. interest money, viz.: Said creditors assuming the future payment of said note and interest ” can not be construed as binding the holder of the note to a waiver or renunciation of the mortgage — said agent being wholly unauthorized to make the said admission, or to bind his principal thereby.

Our examination of the record has utterly failed to disclose in Whitaker, agent, any such authority, or any knowledge on the part of the holder, that such a receipt had been given by him to the attorney of the syndic; and the testimony shows that the endorsement on the back of the note, which evidences the receipt of the interest, is in these words, viz.: Interest paid on this note up to the 16th April, 1896. John T. Whitaker, for holder of mortgage note.”

That was the proper receipt for the collecting agent to have given; and it seems to have been sufficient to effectuate every necessary purpose.

The additional receipt which the agent gave to the attorneys for the syndic seems to us to have been a voluntary act on his part, one purely ex gratia and not binding on his principal.

Mrs. Esther J. Trask is the debtor of appellant and not the creditor of W. B. Daniel, the insolvent; and their assumption of the debt of Mrs. Trask in favor of appellant did not have the effect of releasing her therefrom. For that purpose the consent of the appellant was necessary; otherwise the novation of the debt by the sub - stitution of a new debtor did not take place.

In our opinion the most that can be affirmed of the effect’ of the transaction which took place between Mrs. Trask and Oury, syndic, was to give possibly an additional security to appellant; though we have doubts about that, as the creditors of the insolvent did not intervene in the transaction, and assumed no personal responsibility.

We can perceive no impropriety in the act of the appellant’s agent in accepting payment of interest from the syndic; nor did that act, in any way, make appellant a party to the insolvency proceedings.

In Levy and Carter, Syndic, vs. Thompson, Sheriff, 48 An. 410, this court held: That a syndic’s'sale only divests the mortgages which have been imposed upon the property by the insolvent. Like principles are announced in Succession of Adam Thompson, 42 An. 119; see also Traendle vs. Bouchel, 33 An. 753; Succession of Vancouet, 11 An. 383. The assumption by Oury, syndic, of the indebtedness of Mrs. Trask, to the appellant, conferred no greater right on the latter than she had already by virtue of the stipulation of the pact de non alienando in the deed of sale and mortgage — that pact •conferring upon her the right to enforce her mortgage against the property mortgaged in the hands of any third person, and without any previous notification.

This proposition is elementary and needs no citation of authority to support it.

In our opinion the case of City Bank vs. Walton, 5 Rob. 158, has no application to the instant case. In that case the court said:

“The bank having intervéned in the act of sale from Walton to Samuel 0. Ogden, and consented to the transfer of the property mortgaged, we think the clause cZe non alienando in the mortgage is modified in its effects, if not entirely destroyed, and that the proceedings should be against the third possessors of the property.”

There is no question of the correctness of that opinion; but the appellant neither intervened, in the act of sale from Mrs. Trask to Oury, syndic, nor did she in any way assent thereto. Nor do we •consider the agent’s acceptance of an interest payment from the •syndic as a renunciation of the non-alienation pact.

The facts of the case of Mitchell vs. Cooley, 5 R. 240, which is •cited by counsel for plaintiff in rule, are as follows, to-wit:

Mitchell sold a tract of land to Mrs. Camp, partly upon terms of •credit, retaining a special mortgage and vendor’s lien thereon. The vendee subsequently made sale of the property to' Daigre, who ¡assumed the payment of the mortgaged indebtedness of his vendor as a part of the purchase price. Subsequently Daigre sold to Bobin, who likewise assumed the payment of the mortgaged' indebtedness of his vendor as a part of the purchase price. Subsequently Bobin sold to the defendant, Oooley, who likewise assumed the payment of the mortgaged indebtedness of his vendor as a part of the purchase price.

Subsequently the defendant sold to his brother, who likewise assumed the payment of the mortgaged indebtedness of his vendor as a part of the purchase price.

The original vendor, Mitchell, having died, and one of his sons having attained the age of majority, sued the defendant for his virile share of the defendant’s indebtedness as evidenced by the aforesaid assumpticns. And the defence tendered was: “Defendant was not personally bound to petitioner under the act of sale of Bobin to him; that he only bought the property subject to the payment of the twenty-five hundred dollars,” etc.

This statement shows clearly that there was no question in that case relative to the original vendor's aoeeptanee of the defendant's assumption; there could not have been, as the suit brought was an ordinary action for the enforcement of defendant’s compliance therewith.

That decision does not hold that the plaintiff or his ancestor had in any way accepted that assumption prior to the institution of that suit.

> The judgment appealed from is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed that the judgment, be annulled and reversed; and it is now ordered and decreed that the demands of plaintiff in his rule be rejected at his cost in both courts.


author: Miller, J.

text:
    No. 12,691.
    H. & C. Newman vs. A. B. Cooper, T. J. Cooper et als., Intervenors.
    1. The testimony of the husband that his wife’s father gave her the.rents of his lands cultivated by the husband, and his testimony of the value of the rents will not suffice to establish as against his creditors the debt of the husband for paraphernal funds; the proof must be clear that the husband received: the money or property of the wife. 0. O., Arts. 2383, 2390; 11 La. 45S; 6 Robinson, p. 36; 2II. D.,p. 508, No. 4.

    2. The surviving spouse in his settlement with the heirs of the deceased wife for her share of the community property, is entitled to a credit for the community debt paid by him. C. 0., Arts. 584, 585; 3 An. 497, Succession of Bringier; 4 An. 389.
    A PPEAL from the Sixth Judicial District Court for the Parish J of Richland. Ellis, J.

      J. W. Willis for Plaintiffs, Appellants.

      A. A. Guriby for Intervenors, Appellees.
    Argued and submitted January 10, 1898.
    Opinion handed down January 24, 1898.
   The opinion of the Court was delivered by

Miller, J.

The plaintiffs appeal from the judgment decreeing the intervenors to be creditors of the community between their parents, and to be paid by preference over the plaintiffs, creditors of the father of the intervenors, with mortgage on his share of the community property.

The community was dissolved in 1883 by the death of the mother of the intervenors. The plaintiffs’ mortgage by the surviving husband was executed in 1888. In the effort to foreclose the mortgage the plaintiffs were opposed by the intervenors, children of the marriage, claiming to be paid from the community the amount alleged to have been received by their father of the paraphernal funds of their mother. This is the third appeal in this litigation. We held on the previous occasions that the intervenors, creditors of the community, were entitled to preference of payment over plaintiffs, and their mortgage was operative only on the property to the extent of one-half thereof, subject to the deduction of all community debts. To ascertain the amount of the community debt due the heirs of the deceased wife, and the residuum subject to plaintiffs’ mortgage we remanded the case. The lower court has fixed the debt due the intervenors, decreed the sale of the property, that the intervenors be paid by preference from the proceeds, and that one-half the residue be applied to plaintiffs’ mortgage and the other half is awarded to the intervenors as heirs of their mother. On this appeal the contention of plaintiffs is that the debt to the intervenors fixed by the judgment is not warranted by the testimony or the law.

The argument for the plaintiff assails the claim of the heirs of the wife to eight hundred and five hundred dollars for rents allowed them by the judgment of the lower court. On the proposition that these amounts were paraphernal funds of the wife converted by the husband, we have the testimony of the husband that he worked land of his father-in-law, that later he and his father-in-law worked his land on shares, that lands were worth five dollars per acre, and that the father-in-law gave his daughter, the mother of the intervenors, the value of the rents of his lands, two hundred dollars per year for four years, and five hundred dollars, one-half the rents for the year the lands were worked jointly or on shares by the husband and his father-in-law. It is insisted this testimony does not'show that either money or property of the wife was ever received by the husband. The husband owed rent to his father-in-law, if any was stipulated, for the lands worked by the husband, or by him and his father-in-law on shares. These rents, community debts of the husband, can not be charged against the husband’s creditors as paraphernal funds of his wife received by him. In this class of cases our courts have always exacted clear proof of the origin of the paraphernal funds and the indebtedness of the husband for those funds asserted by the wife, that is to say, there must be proof that the husband received the wife’s paraphernal funds, and the husband’s testimony alone has, in some instances, been deemed insufficient. Babin vs. Brosset, 11 La. 558; Oliver vs. Oliver, 6 Rob. 86, and the line of cases in 2d Hennen’s Digest, p. 508, No. 4. We do not find in the testimony of the husband that the father of his wife gave rents of lands cultivated by the husband of the value stated by him, the basis for a paraphernal debt by the husband to. be allowed against his creditors.

The lower court allowed the wife fifteen hundred dollars for the revenues of her paraphernal property inherited from her father. We do not understand there is any question as to the amount of these revenues, and the testimony of the husband is these funds were used by him. On this part of the case the plaintiffs’ contention is, that as the wife after her father’s death administered her own property there could be no debt of the husband for the revenues. But the mere fact that the wife assumed the administration of her paraphernal funds does not exclude the receipt and conversion of her funds by the husband. The testimony is her separate property produced a net revenue from her father’s death in 1878 to her own death in 1888, amounting to fifteen hundred dollars, and that the'husband received and used the revenues.

It is conceded, and if not, is proved that the husband received five hundred dollars of his wife’s separate funds from her debtor; there is some dispute as to the amount, but none as to the fact that the husband disposed of some portion of the wife’s property, and the testimony fixes the amount, we think, with reasonable certainty at two hundred and sixty dollars. The proof is the husband received of her funds two hundred and forty dollars, given her by her father, and three hundred dollars she inherited from him. To the extent, then, of twenty-eight dollars, we conclude the claims of the heirs established.

On the other hand, the husband, it is proved, paid five hundred and five dollars, the amount of a community debt, for which he is entitled to a credit in his settlement with the heirs; the twenty-eight hundred dollars diminished by this credit leaves twenty-three hundred dollars due the heirs. Civil Code, Arts. 584, 585; Succession of Fitzwilliams, 3 An. 489.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed so far as it adjudges the intervenors to be entitled to three thousand three hundred and five dollars as heirs of their mother, and it is now ordered, adjudged and decreed that the debt due their mother for paraphernal funds be and it is hereby fixed at twenty-three hundred dollars, 'With legal interest from their mother’s death; that as directed by the lower court the community property be sold, from its proceeds there be paid the aforesaid debt to the heirs; that one-half of the residue be paid the intervenors; that the other half of said residue be paid plaintiffs to the extent requisite to pay their mortgage debt, and that intervenors pay the costs of the appeal.


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    No. 12,710.
    State of Louisiana vs. Desire Herbert, Jr., and Laodice Landry.
    A motion to quash an indictment on the ground that the grand jury who presented it was illegal, because they were not drawn and organized, on the first day of the term as fixed by law, comes too late if not filed on the first day of the term; and same will he overruled, unless exceptional circumstances are stated showing clearly that a compliance with the law in this respect was impracticable.
    A PPEAL from the Seventeenth Judicial District Court for the Parish of Vermilion. De Baillon, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Chas. Fontelieu, Edivards & Green and W. B. White for Defendant, Appellant.
    Submitted on briefs January 29, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Watkins, J.

From a verdict convicting them of the crime of grand larceny and a judgment sentencing them to ten years’ imprisonment in the State penitentiary, the defendants have prosecuted this appeal. ,

One of the grounds principally relied upon is a motion to quash the indictment, and it rests upon the following propositions, viz.:

1. That the grand jury who preferred the indictment against them was not impaneled on the first day of the regular jury term of the court, as the law requires — same being the 4th of October, 1897.

2. That no legal order was made or issued by the presiding judge of the court adjourning the regular term, thereof.

8. That the grand jury who preferred said indictment, not having been impaneled until twenty-eight days after after the first day of the term, as fixed by law for the opening of the court, same became functi officio.

4. That the order of the judge directing and requiring the sheriff' to instruct the jury drawn for service during the first week of the regular jury term of court to return on the 2d of November, 1897, was wholly illegal and void, and of no effect in law.

This motion was filed, tried, evidence taken, argued, submitted and overuled on the same day, and defendants’ counsel reserved a bill of exceptions.

The judge refused to sustain the motion to quash, on the ground that it was not timely, having been presented for the first time on the day of the trial, and several days subsequent to the defendants’ arraignment.

The record discloses the following facts, viz. :

That on Monday, the 4th of October, 1897, the day fixed by law for the convocation of the jury term of the court, the presiding judge ordered the sheriff to open the court and discharge the grand and petit juries, which had been summoned for that day, until Tuesday, the 2d of November, 1897 — same having been done an account of yellow fever quarantine.

That on the 12th of October, 1897, the judge made an order to the effect, that there would be held a special term of court, commencing on Monday, the 15th of November, 1897; and that said order was subsequently so modified as to fix the date of the opening of said special term of court on the 24th of November, 1897.

That on Tuesday, the 2d of November, 1897, the day fixed by the order of the judge for the holding of the regular term of court, the sheriff returned into court the venire facias, containing the list of grand and petit jurors, and that same were regularly called and answered to their names, and therefrom the grand jury was regularly chosen, set apart and sworn.

That on Thursday, the 4th of November, 1897, the court ordered the jury commission to draw, without delay and instanter, for service at the special term to be convoked and holden on the 24th of November, 1897, thirty names for service as petit jurors.

That on Friday, the 5th of November, 1897, the grand jury returned into court the indictment against the defendants, charging them with the larceny of five cows.

That on Monday, the 8th of November, 1897, the two defendants were regularly arraigned, and pleaded not guilty and elected to be tried by a jury; and that upon the same date the judge made an order that the criminal term of the court be adjourned until the 24th of November, 1897, and that all persons under bond be directed and required to report at that time.

That on the 24th of November, 1897, the judge made an order directing and requiring the jury commission to forthwith draw from the general venire box the names of fifty persons to serve as tales jurors, on the 30th of November, 1897.

That on the 26th of November, 1897, the cause was by consent of parties fixed for trial on the 30th of November, 1897.

That the defendant’s motion to quash was filed on the 30th of November, 1897, the day set for the trial.

It thus appears that the statement of judge was fully justified by the record — the grand jury having been drawn and regularly organized on the 3d of November, 1897,. the first day of the term of court at which the indictment was found and presented to the court, and under which the defendants were regularly arraigned and plead not guilty several days subsequently.

It is of no consequence that the court was, on the 4th of October, 1897 — the'day fixed by law for it to have convened — adjourned over, by order of the judge, to the 2d of November, 1897; as the judge also ordered the sheriff to open the court regularly on the 4th of October, 1897, and adjourn same to the date designated, and to discharge all jurors who had been summoned until that date.

Under that state of facts, the regular term of the court did not lapse, but was only adjourned; and consequently the grand jury was properly and legally organized on the 2d of November, 1897, the date to which the regular term of court had been adjourned.

Subsequently the grand jury presented the indictment against the defendants; and several days thereafter the defendants were arraigned, plead not guilty, and demanded a trial by jury.

Several days subsequently, the cause was, by consent, fixed for trial; and four days later the defendants’ motion to quash was filed, seeking to avail themselves of alleged formal defects in the organization of the grand jury.

If in point of fact these alleged informalities actually existed, they must have been as well known to the defendants at the time the indictment was filed, and they were arrested thereunder as they were at the time the motion to quash was filed.

That a motion to quash an indictment on the ground that the venire was irregularly drawn came too late, same not having been filed on the first day of the term, and no exceptional circumstances having been stated as rendering compliance with the law in that respect impracticable, has been recently held by this court on the faith of previous adjudications. State vs. Collions, 48 An. 1454; State vs. Pruett, 49 An. 283; State vs. Ashworth, 41 An. 683; State vs. Vance, 31 An. 399; State vs. Sterling, 41 An. 679; State vs. Leftwich, 46 An. 1195.

In the instant case no exceptional circumstance is stated which rendered compliance with legal requirements impracticable, and hence we deem it our duty to adhere to previous adjudications and sustain the ruling of the trial judge.

There are some other bills of exceptions in the record, but inasmuch as they have not been argued in the brief of the defendants’ counsel we do not feel called upon to examine and pass upon them.

Judgment affirmed.


text:
    No. 12,492.
    In the Matter of the Pelican Saw Mill and Manufacturing Company.
    Reiterated that it is the amount of the fund to be distributed, and not that of the claim of the complaining creditor, that determines the jurisdiction of this court. Motion to dismiss appeal denied.
    Where creditors, recognized on a receiver's account, are opposed, it is incumbent on such creditors to adduce the proof necessary to substantiate their claims, and failing in this they will be stricken from the account.
    After the judgment amending and homologating the account has become final andthefUDds have been disbursed by the receiver pursuant to its mandate, this court, under the facts here presented, will not reverse and remand in order to permit opportunity to complaining creditors to appear and prove their claims.
    APPEAL from the Uivil District Court; for the Parish of Orleans. Ellis, J.

      Rice & Montgomery and E. L. Richardson for Receiver, Appellee.

      Hughes & Famot, Buck, Walshe & Buck, Benjamin Bice Forman and Hugh C. Gage for Opponents and Appellants.
    Argued and submitted January 28, 1898.
    Opinion handed down March 21, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Blanchard, J.

The motion to dismiss is made on the ground that the amount claimed by each appellant is below the' appealable jurisdiction of this court.

The provisional account of the receiver proposing to distribute fifteen thousand five hundred and thirty-three dollars and seventy-six cents, and his final account proposing to distribute four thousand one hundred and eighty-nine dollars and seventy-five cents additional, or a total of nineteen thousand seven hundred and twenty-three dollars and fifty-one cents, were tried together, amended and homologated under one judgment.

Representing themselves as creditors of the insolvent concern and averring error in the judgment and injury to themselves, A. M. Edwards, John Stranger and Henry Buddig prosecute this appeal.

It is not the amount of their claim that determines the appellate jurisdiction; it is that of the fund to be distributed. Constitution, Art. 81; Murray vs. Sweeney, 48 La. An. 761; Amendment, Acts 1882, p. 174.

The motion to dismiss is denied.

On the Merits.

Appellants were creditors of the insolvent corporation. They appeared as such on the books of the concern. They were listed as creditors on the provisional and final accounts filed by the receiver. When these accounts were presented to the court the usual order was made for their advertisement according to law, and it is shown that they were advertised for ten days in the English and French languages. Oppositions were filed, and these and the accounts opposed came on for trial in due course.

The oppositions were leveled at each and every claim listed on the accounts as debts due by the corporation, and the three complaining creditors herein were mentioned by name and their claims opposed as not being debts due.

Opponents prayed that the items opposed be rejected and disallowed and stricken from the accounts.

There were numerous creditors. Many of them appeared at the trial of the o ppositions and substantiated their claims. But forty eight of the creditors, who had been placed on the receiver’s accounts as such, failed to appear, notwithstanding the oppositions brought into question and contestation their claims. Among these were the three appellants herein. No proof whatever was offered on their behalf to make good their debts in this contest between the creditors.

A.s a consequence, in the final judgment on the accounts their claims were disallowed. In a proceeding where everything was disputed and combatted and a trial had contradictorily with opposing creditors, nothing could be allowed which did not have a basis of proof to stand upon.

Claims not supported by testimony could have no rating with claims proven, where opposition had put all to the proof.

On this point the learned judge of the court below said : “ Those items of ordinary debt that I have ordered stricken from the accounts were all opposed, and the parties have brought no proof to sustain them. If they suffer loss, it is the result of their own fault in not producing their proof.”

The judgment of homologation of the accounts, as amended, was rendered January 22,1897, and signed Febuary 8,1897. A month later ' Stranger and Edwards, appellants herein, appeared in the lower court, for the first time, and took á rule on the receiver to show cause why their claims should not be paid as ordinary creditors. This rule, on trial, was dismissed for the obvious reason that they no longer had, before the court, the character of creditors of the insolvent corporation. Called in question in the way the law provides, there had been no proof at the trial of their claims, once recognized on the accounts, and the same had been stricken therefrom. The judgment of the court doing this had become final, it was the mandate for the receiver to pay out and disburse among those who had proven their claims and been recognized as creditors the moneys in his hands, no suspensive appeal had stopped his doing so, and he had made the payments. At least nothing to the contrary appears.

Their rule to enforce payment having failed, Stranger and Edwards took an appeal, both from the judgment amending and homologating the accounts and from the adverse judgment on the rule.

Buddig, the other appellant herein, appeared about this juncture for the first time, and took an appeal.

These appeals were all necessarily devolutive — it was too late to appeal suspensively.

There is no testimony in the record which justifies this court in amending the accounts appealed from so as to include appellants thereon as ordinary creditors. It is not contended by appellants that there is.

But they do insist on the reversal of the judgment, to the end that .the case may be remanded for another trial below. This would give appellants the opportunity now coveted to prove their claims and take rank on the list of ordinary creditors. If this should be done and these parties proved their claims and became recognized as ordinary creditors, the result would be, since there is not enough to pay all, that those creditors now recognized on the adjudged account as such, would receive less'.

But, meanwhile, under the judgment and mandate of the court, not suspensively appealed from, the receiver has disbursed the funds in his hands. Those recognized as ordinary creditors on the approved account have received their pro rata share.

Should the case be remanded on this demand of appellants and the account be then amended by including them and the forty-five others who failed to appear and prove their claims in the first instance, where would the money come from to pay them their percentage?

The receiver has it not, for he has paid it out on the first judgment recognizing the other creditors and striking these from the list.

Must the receiver himself be required to make up the amount to them out of his own funds, or to be mulcted for the same on his official bond?

Or will the parties, later recognized as ordinary creditors, have to pursue those earlier recognized as such, to force them to disgorge a part of what they had been paid on their claims? A fruitful field of litigation would be here presented.

The appellants were, beyond doubt, creditors, and the receiver did his duty, both to his trust and to them, in placing them on his account as such. Other creditors had the right to oppose this and did so.

The provisional account, which first recognized appellants as creditors, was filed November 15, 1895.

The second and final account, which also recognized them, was filed May 5, 1896.

Between the two dates the case had come to this court on an appeal anterior to this one, prosecuted by other creditors on other grounds.

On February 20, 1896, Bankston and others filed oppositions challenging every item on the provisional account, and, by name, the claims of these appellants.

They renewed this opposition on May 14, 1896, to the final account.

Other creditors, about that time, presented similar oppositions.

The taking of evidence on the trial of the accounts and the oppositions filed thereto, began on October 28, 1896, continued through the remainder of that month, was resumed again on November 6, 1896, the case was argued and submitted on December 5, 1896, and judgment was signed February 3,-1897.

It thus appears the settlement of the affairs of this insolvent corporation was pending in court for largely more than twelve months before the judgment now appealed from became final, and more than eleven months had elapsed from the filing of the first opposition, challenging appellants’ claims, before the judgment was signed, which struck their claims off .the account. Yet in all that time they made no appearance to defend their rights thus attacked. And now they put up the contention that they had no knowlege or information that any one disputed they were creditors, and complain they have been condemned without notice or hearing. Whose fault was this?

If the receiver had ignored their claims and filed his account without recognizing them as creditors they would have had to appear and file oppositions in order to obtain a place on the account.

This was the only way, and if they had neglected it and the account been seasonably homologated, on due proof, they would have been barred.

Under such circumstances, suppose they had later appeared, taken an appeal, brought the case here and urged that the judgment be reversed and the case remanded in order that they might file an opposition and have themselves included on the account as creditors, would they be listened to? Surely not.

Is there any substantial difference in the case as now actually presented?

The receiver put them on his account; co-creditors opposed; they neglected throughout an entire year to appear and make good their right to a place thereon. The case went to trial without them, other claims, proven, were allowed; theirs, without proof, disallowed. Now they appeal, after disbursement of the fund, and ask remanding of the ease in order that they may adduce proof and obtain a place on the account. It is too late. By their own laches they are left out. The receiver did his duty when he placed on his account all whom he considered creditors, and other creditors having opposed, the issue, as correctly stated by the trial judge, was shifted and the contest became one among creditors. It was the concern of the creditors whose claims were opposed to adduce the evidence to sustain them. Galder vs. Creditors, 47 An. 1539. It was not the duty of the receiver so to do, nor to take part in such a contest between creditors.

The law favors the vigilant, while it turns a deaf ear to tho'se who find their right impaired as the result of their own indifference, inattention, or want of care.

Unlike the Calder case, supra, gross neglect on part of the complaining creditors is apparent here, and, all things considered, we do not see our way to remanding the case.

Judgment affirmed.


text:
    No. 12,557.
    The State ex rel. Bolling C. Hall, for Use, vs. Judges of the Court of Appeals, Second Circuit.
    The judgment of the Court of Appeals does not become final by the lapse of ten days after the adjournment when there is pending and undisposed of a rule for a new trial seasonably taken by the partycast. C. P., Arts. 516, 553; Act No. 100 of 1896; 35 An. UOá .
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Newton & Hall and Lamlcin & Millsaps for Relator.
    Respondent Judges in person (Potts & Hudson of Counsel).

      Submitted on briefs June 15, 1897.
    Opinion handed down June 23, 1897,
    Watkins, J., making writs peremptory.
    Rehearing granted December 13, 1897.
    Submitted on rehearing February 21, 1898.
    Opinion on rehearing handed down March 7, 1898.
   On Rehearing.

The opinion of the court was delivered by

Miller, J.

The relator applies for the writs of certiorari and prohibition to protect his asserted right to the judgment in his favor, rendered by the Circuit Court of Appeals for the Second Circuit, which he claims had become final and was illegally set aside by the subsequent judgment of that court.

It appears that at the term of the Court ol Appeals for Second Circuit, of January, 1897, judgment was rendered in relator’s favor on his appeal from the judgment of the District Court in favor of the Alexandria & St. Louis Railway Company; that in due time the Company applied for a rehearing, on which the court took no action before the expiration of the term; thereupon the parties to the suit through their counsel agreed that the court might pass on the rehearing within fifteen days thereafter; the judges failed to agree, and on the 16th February, the sixteenth day from the date of the agreement, the judges made the order that being unable to agree, the application for the rehearing be continued to the next regular term, beginning third Monday of May, 1897, at which term the judges designated an attorney to aid them in the decision, and, thereafter, the court thus constituted rendered judgment reversing that previously rendered.

In this condition, the relator, plaintiff in the suit, made the present application to this court for relief against that which he conceives to be the illegal action of the Circuit Court in reversing its first judgment. His contention is, that the first judgment became final in ten days after the adjournment of the court, notwithstanding the application for the rehearing then pending, and the relator supposes his contention supported by the Act No. 100 of 1896, which makes judgments in the Courts of Appeal final from and after adjournment of the term at which they are rendered, provided that three judicial days shall always be allowed for motions for rehearing, if the term shall not expire before the delay shall elapse, and if the term does expire before the three judicial days, the rehearing applied for within three days after the rendition of the judgment, shall be considered in chambers and a decision filed within ten days after adjournment. If the application is refused the judgment becomes final; if granted, the case shall be continued on the docket; and, in all cases, applications for rehearing may, by consent, be taken under advisement until the next term of the court. If, then, we sustain relator’s contention, he loses the benefit of his application for a rehearing, not from any fault of his own, but simply and only because of the inability of the judges to agree, or rather their failure to decide within ten days. That contention sustained, the right to ask the rehearing would be left, but would be of no use if the judges to whom it is addressed chose not to act, or were unable to act, or acting, failed to agree.

In our view, no such construction can be placed on the Act No. 100 of 1896. It did not intend to inflict the penalty on the litigant of deprivation of any rehearing because the judges failed to act on his application. They should act within ten days from the adjournment, but if they do not, or, as in this case, are unable to agree, the litigant’s application for a rehearing must be disposed of at the ensuing term. No action upon his application for a rehearing, instead of defeating it, in our view, action on the appiication could be enforced by mandamus. In our view, the decision of our predecessors that the litigant was not deprived of the benefit of his rule for new trial, seasonably taken, because of the adjournment of the court without acting on the rule, is quite applicable here. Under the Code of Practice the litigant is allowed his rule for new trial, if taken within three judicial days from the rendition of the judgment. Another article requires all judgments to be signed at the expiration of three days from the rendition, and, by an amendment, applications for new trial were required to be determined and all judgments to be signed before the adjournment of the court; whether or not three judicial days had elapsed. It was held under these articles of the Code of Practice, as amended, the litigant’s rule for anew trial was not defeated by the adjournment of the court without determining the rule. State ex rel. Allen & Syme vs. Judge, 35 An. 1104. Obviously, on principle and authority the litigant should not be deprived of his legal right to a new trial merely and only because the judge fails to act on his application. That is practically decided in the case cited. • With equal reason, we think, the application for the rehearing in the case now under review did not lapse and the judgment become final because within ten days from the adjournment of the term the application was not disposed of because the judges could not agree.

It is therefore ordered, adjudged and. decreed that our previous order on this application for the writ? of certiorari and prohibition be set aside and annulled, and it is now ordered and adjudged that the relator’s application be refused at his cost.


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    No. 12,677.
    John Sealy vs. G. L. Hall et als.; R. B. Hawley & Co., Third Opponents.
    An irregularity or want of notice of a rule for new trial is unimportant when the testimony brought up on the appeal supports the judgment sought to be set aside on the new trial.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Foster & Broussard, Andrew Thorpe and T. H. Thorpe for Third Opponents, Appellees.

      Walter J. Burke & Bro. for Defendants, Appellants.
    Argued and submitted December 27, 1897.
    Opinion handed down January 24, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendants appeal from the judgment decreeing opponents’ payment of a debt with privilege on certain appurtenances of a sugar mill.

There had been a previous judgment in the opponents’ favor, but in the enumeration of the appurtenances there was an omission. On the rule for new trial the court extended the description of the articles covered by the privilege so as to embrace all intended by the original judgment. No notice of the rule for new trial was given the defendants, and from the judgment on the new trial this appeal is taken.

It is insisted by defendants that the judgment can not be changed in any material respect except on a rule for a new trial, duly served on the parties in interest. It is claimed by the opponents that the defendant in execution is not entitled to notice, and that the judgment merely corrected an error and supplied that which it was intended to be incorporated in the original judgment.

The appeal brings up all the testimony on the trial and sustains the judgment rendered on the rule for new trial. The objection to the rule for the new trial is, therefore, of no importance, as our judgment must give effect to the testimony sustaining the opponents’ demand. Whipple vs. Hertzberger, 11 An. 475.

It is therefore ordered, adjudged and decreed that-the judgment of the lower court be affirmed with costs.


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    No. 12,467.
    City of New Orleans vs. George P. Kerr and John Gally.
    Tlie powers and obligations of municipal corporations are twofold in character, (1) those that are of a public nature, and (2) those that are of a private nature.
    As to the first, the municipal corporation acts as the agent of the State — discharging duties incumbent upon the State — and as the representative of sovereignty is not answerable for the non-feasance or malfeasance of its officials.
    As to the second, the corporation represents the pecuniary and proprietary inter- • ests of individuals, and the rules which govern the responsibility of individuals are properly applicable.
    While, in a general sense, not liable for the non-feasance of its officers, the city of New Orleans is responsible for damages arising ex contractu^ having as their source the breach of a contract duly executed by its corporate agents acting within the scope of their authority and in the line of their duty.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      James J. MeLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      John O. Wickliffe and Joseph N. Wolf son for Defendants, Appellants.
    Argued and submitted November 29, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused April 4, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This is an action brought by the city of New Orleans against the defendants for a balance due upon a sale or lease of the franchise or right to impound stock within the city’s limits, and to receive the fees therefor.

Defendant Kerr, who was the pound contractor, answered that while there was an apparent balance due the city on his contract, he was absolved from liability therefor by reason of flagrant breaches of the contract on the part of the city in failing to give him proper police protection in the discharge of his duties as pound keeper, without which his contract was unavailing, and in harassing and annoying him through its officers and agents.

Then, assuming the character of plaintiff in reconvention, he set up a claim against the city for nine thousand three hundred and twenty-two dollars and thirty-seven cents for damages accruing to him by reason of the breaches of contract aforesaid. This claim is set forth with much detail.

The judgment below was against both parties. It rejected plaintiff’s original demand and that of defendant in reconvention.

Defendant alone appeals, and the case is before us only as to the reconventional demand of the latter.

Defendant’s contract with the city was entered into on the first of May, 1891, and was for the term of one year. The Mayor, who executed the contract on behalf of the city, was specially authorized thereto by ordinances of the City Council, and the formal contract was in confirmation of a sale and adjudication of the pound franchise previously made to defendant.

, The words used are that the city “ does by these presents grant, bargain, sell and coufirm ” unto the defendant “the revenues of the public pound ” for the period named.

The ordinances of the city relative to the impounding of stock ■were referred to in the instrument, and the principal one was copied bodily into it as a part of the contract.

One section of this ordinance declares that all animals found upon the streets contrary to its provisions “ are to be taken up by the police, the contractor or his assistants and placed in the nearest pound,” etc.

Another section provides “ that it shall be the duty of the city police to render such service or assistance- as may be necessary to the pound keepers in the discharge of their duty.”

Some four or five months after the contract became operative, another ordinance was adopted by the City Council, which, after first declaring that experience had shown the impracticability of enforcing the pound contract without proper police protection and that it was the duty of the city police to render such assistance as was necessary to the pound keeper, his assistants and employees in the discharge of their duty, proceeded to request the Board of Police Commissioners to instruct the superintendent of police to make a permanent detail of two officers for the purpose.

Still later, and about a month before defendant’s contract was to expire, further action was taken by the City Council in the form of a motion adopted requesting the Mayor to direct the superintendent of police to require the strict enforcement of the preceding ordinance relative to pounds, and calling upon the several recorders of the city to see to the enforcement of the same, and admonished them that in case of failure to do so they would be held amenable to the council for dereliction of duty.

These several corporate acts are practical admissions that theretofore the city ordinances relating to the impounding of stock and the city’s obligation to the pound contractor with reference thereto had not been adequately enforced.

And the testimony taken leaves no doubt upon the mind of the truth of this fact.

It was not possible to carry out the contract without police protection and assistance.

The contractor, his drivers and assistants were threatened, assaulted, beaten and driven off.

Cattle and other stock taken up and on their way to the pounds were rescued by mobs.

Frequent arrests of the defendant were made on charges of illegal conduct in carrying out the contract, on all of which charges, save one, he was acquitted, and as to the one upon which he was convicted, he was subsequently released .on a writ of habeas corpus.

Once he was locked up all night and part of a day in the city prison on a trumped-up charge.

One of his pounds was broken into by police officers claiming to act under order of the then acting Mayor, and a horse impounded released.

Other acts of misfeasance and non-feasance of the police and other city officials, in reference to defendant and his contract with the city, are shown.

He was not furnished the necessary police protection and assistance, and for the greater part of the time it was withheld from him entirely.

Indeed, it is shown that the then Mayor gave an order that no police protection be given defendant, and that because of this order the Chief of Police refused details of policemen.

The record teems with evidence of application after application made by defendant and his attorney for police protection and assistance.

There is no room for doubt that the contractor was ready at all times to carry out his contract, willing and anxious to do so and zealous in his efforts thereunto. So much so, in fact, that it resulted in numerous complaints lodged against him.

That he may in instances have overstepped the limits of a just discretion in the manner of its execution, is probable. But there was a proper way of meeting this and of dealing with him in regard thereto without withholding the protection and aid of the police necessary to the legitimate execution of his duties under the contract and guaranteed to him by the instrument evidencing'the same.

The amount he was to pay to the city monthly under his contract was thirty-one dollars.

That he did not pay all the monthly instalments and owed a balance of two hundred and seventy-one dollars, which the city sued for herein, is explained by him on the ground of the city’s failure to meet its obligations to him under the contract.

The way defendant was to be compensated for the work done under his contract was by fees collected on animals impounded, and the evidence shows the franchise was a valuable one, and, perhaps, lucrative, if adequate police protection and assistance had been extended him.

The powers and obligations of municipal corporations, like the city of New Orleans, are twofold in character: those that are of a public nature and those that are of a private, nature.

This court by repeated decisions has recognized this distinction. 1 An. 437; 9 An. 461; 12 An. 190, 482; 14 An. 120; 26 An. 478.

As to the first, or public character of its powers and obligations, the municipal corporation represents the State — discharging duties incumbent on the State. As to the second, or private character of its powers and obligations, the municipal corporation represents the pecuniary and proprietary interests of individuals.

As to the first, where a municipal corporation acts as the agent of the State, it becomes the representative of sovereignty and is not answerable for the non-feasance or malfeasance of its public agents.

As to the second, the rules which govern the responsibility of individuals are properly applicable. Am. and Eng. Ency. of Law, Vol. 15, p. 1141; Western College vs. City of Cleveland, 12 Ohio St. 337; Rusher vs. City of Dallas, 16 S. W. 333; Whitefield vs. City of Paris, 19 S. W. 566; O’Rourke vs. City of Sioux Falls (S. D.), 54 N. W. 1044; 61 Fed. Rep. 64; 62 Fed. Rep. 240.

In the instant case one of the items of damage claimed by defendant is one thousand dollars for his illegal arrest and imprisonment by the police under the direction of the city officers.

Under the distinction between the powers and obligations of the city above noted, no liability attaches to her on account of this act of malfeasance of her officers. Stewart vs. City, 9 An. 462; Lewis vs. City, 12 An. 190; 2 Dillon, Sec. 975.

This was a tort and the adtion based thereon arises ex dilieto.

But as regards other items of damage claimed (to be noted later), the action to enforce same arises ex eontraetu, and the city is liable. Vidalat vs. City, 43 An. 1122; 2 Dillon on Corporations, Sees. 935, 980, 981, 983.

The city had the right to impound cattle; it comes within the police powers of the city. (Am. and Eng. Ency. of Law, Vol. 10, p. 137). It is necessary to insure cleanliness and the public safety. Having the power to do this itself, it could let it out by contract and did so, and stipulated as part of the- contract that it would furnish police protection to enable its contractor to perform his duty and carry out the contract. Failing to do this, it is liable as for breach of the contract.

While not liable for the non-feasance of its officers in a general sense, it is liable for debts incurred through its corporate agents acting within the scope of their authority and the line of their duty. It is on this principle that it is liable to defendant for failure of its obligation to furnish him the means of fulfilling his contract, upon which depende l alike the performance of his duty to the city and the realization to himself of the profits of the enterprise.

In La Rosa vs. Mayor, 4 La. 24, it was held that when the city of New Orleans made an adjudication of a certain right, if done in reference to and conformity with an ordinance of the Oity Council, it imposes all the obligations' and confers all the rights created by the ordinance. See also Johnson vs. Municipality, 5 An. 100; McLaughlin vs. Same, 5 An. 504.

If we view the city as■ vendor of this franchise to the defendant, then she is liable for breach of the warranty respecting the buyer’s peaceable possession of the thing sold. C. C. 2476, 2500 et seq.

If we view the city as lessor of the right, then she is liable for breach of her obligation to cause the lessee to be in peaceable possession of the thing during the continuance of the lease. C. C. 2692, 2696.

So far as defendant’s reconventional claim is one sounding in damages arising ex eonlraetu, he is entitled to be reimbursed the loss he has sustained and the profit of which he has been deprived, to the extent that the proof substantiates the same. That is to say, he may recover such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. 43 An. 1128; C. C. 1934; 3 An. 105; 11 An. 300.

Defendant claims twenty-five dollars for the destruction of his pound in the Fifth Municipal District. The evidence does not establish this item with sufficient certainty and it is disallowed.

The same is true of the claim for twenty dollars, amount of pound fees said to have been collected in the Fifth District, and which officers of the city are alleged to have compelled his representative to refund, and the claim for twenty-ffive dollars for pound fees on stock represented to have been turned out of the said pound by the city’s representative.

Both items are disallowed.

The claim of one thousand and fifty dollars for pound fees upon four hundred and twenty head of stock, taken up by defendant, and which, while being driven to the pound, were rescued and taken from his custody by mobs and lawless people; is made out and must be allowed.

Under the pound ordinances of the city and under his contract, the moment stock running at large were apprehended by the pound keeper, his right to the pound fees attached, and if by reason of the lack of sufficient police assistance such stock is forcibly taken from his custody, the city became liable for breach of its contract obligation to furnish the protection necessary in the premises. Moreover, the stock being apprehended and his claim to the fees having attached, the latter became a right of property, for damages to which by mobs and riotous assemblages the city is responsible under the statutory law. Section 2580, Revised Statutes.

The claim of four thousand eight hundred and thirty-five dollars and thirty-seven cents for pound fees alleged to have been lost by reason of the city’s failure to furnish police protection during two hundred and sixty-seven days of the contract can not, on a review of the whole evidence, be held to be made out with sufficient certainty. This item is asserted under the head of “ profit of which he has been deprived,” and was calculated on the basis of the contractor’s earnings on the days when he did have police protection. See Schleider vs. Dietman, 44 La. An. 462.

On the next item, one thousand two hundred and eighty-seven dollars for the rent of the pounds during the two hundred and sixty - seven days, when defendant could not use them because of lack of police protection, nine hundred and thirteen dollars is allowed, being the amount defendant testifies he actually paid out for such rent during that time. This is a damage for which the city must be held liable. The pounds were useless without the police protection necessary to enable defendant to impound stock, and defendant could not give up the pounds and save the expense, for he could not foresee that the policy of withholding police protection would continue. He was compelled to be ready himself to perform his duty at all times, and one of the requisites to this end was the maintenance of pounds for the detention of stock.

With regard to the last item, one thousand and eighty dollars, compensation to employees, drivers and pound-keepers during the time defendant was without police protection, the evidence does not establish with certainty that this much is due. We are satisfied, however, that defendant is entitled to an allowance under this head, and will put it at one-half of the sum claimed, or five hundred and forty dollars.

The city is liable for this on the same principle that the claim for rent of the pounds is sustained.

We have given due consideration to the several defences urged on part of the city against the reconventional demand, but are constrained to hold that so far as this claim is herein sustained, they have not been found to be applicable.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from, in so far as the same rejects in whole the demand inreconvention, be annulled, avoided and reversed, and it is now ordered that defendant, George P. Kerr, do have and recover of the city of New Orleans, on his demand in reconvention, the sum of two thousand five hundred and three dollars, with legal interest thereon from judicial demand, to-wit: September 10, 1892, together with costs in both courts.