text:
    No. 2719
    Second Circuit
    COWSER & WATSON v. HICKS HARPER, Intervenor
    (February 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

      1. Louisiana Digest — Sequestration — Par. 32.
    The general rule with few exceptions is well settled that intervention and third opposition may not be filed after property seized under a writ of sequestration has been released on bond.
    2. Louisiana Digest — Sequestration — Par. 22, 25, 32.
    Where property had been sold by the sheriff prior to the filing of the intervention, the property cannot be returned, and judgment recognizing the privilege of the intervenor is enforceable only against the release bond.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. S. Richardson, Judge.
    Action by Cowser & Watson against J. W. Hicks, et al.
    There was judgment for plaintiffs and intervenor appealed.
    Judgment reversed and intervention dismissed.
    Wimberly & Wallace; I. J. McCarthy, of Arcadia, attorneys for plaintiffs, appellees.
    Goff & Barnette, of Arcadia, attorneys for intervenor, appellant.
   WEBB, J.

Plaintiff, Cowser & Watson, a commercial partnership, filed suit on October 2, 1924, against defendants, J. T. Harper and J. W. Hicks, alleging it had furnished defendants merchandise, etc., with which to make a crop on lands belonging tq Mrs. J. T. Harper (wife of one of the defendants), which was under the administration of J. T. Harper, and that it had a privilege on the crops to secure the advances made.

Plaintiff prayed for the issuance of a writ of sequestration and, after due proceedings, for judgment against defendants in solido, and that the sequestration be maintained and their alleged privilege be recognized, etc.; and for all orders and decrees necessary.

The writ of sequestration was issued and the crop, consisting of several bales of cotton, seed cotton, and cotton in the fields, was sequestered by tbe sheriff oil October 3, 1924.

On October 4, 1924, J. T. Harper, one of the defendants, appeared and obtained an order to bond the property seized, and on the same day he filed a bond for the amount fixed by the court.

On June 23, 1925, Mrs. J. T. Harper, wife of J. T. Harper, filed an intervention and third opposition in which she alleged that the sheriff, proceeding under a writ of sequestration issued at the instance of plaintiff, had the crops which had been raised by J. W. Hicks, a share cropper on her lands, which were under her administration, seized, that said crops belonged to intervenor, and that she had furnished J. W. Hicks with money and supplies to make the crops, and that there had not been any settlement between intervenor and said Hicks, and that she was entitled to intervene and claim the ownership of the property, or, in event it had been sold, the proceeds of same.

She prayed for service upon plaintiff, Cower & Watson, and J. W. Hicks, and, after due proceedings, for judgment recognizing and decreeing her to be the owner of the propery and entitled to the possession of same.

On February 28, 1925, J. T. Harper, one of the defendants, answered plaintiff’s petition, pleading, in effect, a general denial, and alleging that the crops had been raised on the lands of his wife, Mrs. J. T. Harper, which was under her separate administration.

Plaintiff excepted that the intervenor and third opponent failed to state a cause of action and that the intervention came too late, being after the property sequestered had been released on-bond; and upon the exception being referred to the merits, plaintiff filed an answer to the intervention pleading, in effect, a general denial and alleging the merchandise sold to J. T. Harper and J. W. Hicks had been sold with the knowledge of intervenor and that J. T. Harper had the administration of the property on which the crops were raised, etc., and prayed that intervenor’s demands be rejected.

Plaintiff took a default against J. W. Hicks, but it does not appear from' the record that any default was entered by intervenor against Hicks.

On trial judgment was rendered in favor of plaintiff and against J. W. Hicks and J. T. Harper in solido for the amount claimed, the writ of sequestration was sustained and the privilege asserted by plaintiff was recognized on the property seized; and judgment was also rendered in favor of Mrs. J. T. Harper and against J. W. Hicks in the sum of two hundred and forty-eight dollars, of which one hundred and fifty dollars was declared to be secured by a privilege on the property seized, which was ordered to be sold and the proceeds applied pro rata to the payment of tho privileges recognized in favor of the plaintiff and Mrs. J. T. Harper, intervenor and third opponent.

Intervenor and third opponent appealed, and plaintiff has answered the appeal, praying that intervenor’s demands be rejected.

OPINION

The parties, plaintiff and intervenor, urge many grounds in support of their respective contentions, among which, on behalf of plaintiff, is that the intervention and third opposition of Mrs. J. T. Harper should have been dismissed on the ground that it was filed after the property had been released from seizure on a bond furnished by one of the defendants, the hus-, band of intervenor, J. T. Harper.

From the statement of the ' pleadings and judgment it will appear that the evidence must have presented a “tangle”, which may frequently occur when the husband and wife reside on agricultural property belonging to the latter, where the real authority of the husband may be much less than he assumes, and the public, unaware of the situation, or not taking the time to investigate, deal with the husband with relation to the property on an assumption which is finally found to be without basis.

However, we do not deem it necessary to review the evidence, as it relates to the question as to which of the two (husband or wife) had the administration of the property, or the rights of the parties in or against the crops, as the latter question has been definitely determined as between the plaintiff and J. T. Harper and J. W. Hicks by the judgment from which an a®peal has not been taken, and the property having been released on bond before the intervention was filed the intervention should have been dismissed.

While there may be instances in which an intervention and third opposition may be filed after property seized under a writ of sequestration has been released on bond, ttye general rule is well settled to the contrary. (Burbank vs. Taylor, 23 La. Ariri. 751; Carroll vs. Birdwell, 27 La. Ann. 239; Phifer vs. Maxwell, 28 La. Ann. 262.) And although it may be that the intervenor had the administration of the property, and that Hick's was working as a sharecropper, it is not alleged that there was collusion between plaintiff and J. T. Harper by which -Harper- was enabled to obtain possession of the crops, through the suit instituted by plaintiff..

. Furthermore, -the- evidence shows that th'e property had been sold by J. T. Harper some time prior to the date Mrs. Harper filed her intervention, and ' J. T. Harper cannot return the property, and any judgment recognizing^ privilege on the property seized would be enforceable only against the release bond in which Mrs. J. T. Harper certainly could not have any interest.

It is therefore ordered, adjudged and decreed that the judgment appealed from, insofar as it recognizes any privilege in favor of the intervenor and third opponent, Mrs. J. T. Harper, on the property seized, or any right in the proceeds of the property, as against plaintiff, Cowser & Watson, be annulled, avoided and reversed, and that her intervention be dismissed insofar as it may affect plaintiff, at her cost.


source: Caselaw Access Project

author: WEBB,. J. REYNOLDS, J.

license: Public Domain

text:
    No. 2682
    Second Circuit
    HANNA MOTOR CO. v. WILSON WILLIAMS, Intervenor
    (January 28, 1927. Opinion and Decree.)
    (May 13, 1927. Case Remanded on Rehearing.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Injunction—Par. 55, 90, 101. , . , . . ■
    Under Section 5 of Act 29 of 1925 no appeal shall be allowed from ‘ any or- " der' granting, continuing, refusing "ór dissolving a restraining order.

      2. Louisiana Digest — Marriage—Par. 158, 159.
    In view of Civil Code, Articles 2399, 2402, 2334 and 2404, it cannot be presumed that the wife .was carrying on the business of farming separate from her husband, or that she has some separate right of ownership in the property on which she and her husband reside, even though the property was assessed for taxation in her name individually.
    3. Louisiana Digest — Marriage—Par. 158, • 159.
    Where uncontradicted evidence shows that the property belonged to the community, the presumption of law also being that it belonged to the community, the court will give judgment that it did belong to the community.
    ON REHEARING
    4. Louisiana Digest — Appeal—Par. 729, 733.
    Where surprise is pleaded and the record shows the facts should and could be' made plainer, case will be remanded for new trial.
    Appeal from the Fifth Judicial Distri Court of. Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Hanna Motor Company against Carrie Wilson. John Williams, intervenor.
    There was judgment for intervenor and plaintiff appealed.
    Judgment reversed on rehearing and case remanded for new trial.
    Ellis & E'llis, of Rayville, attorneys for plaintiff, appellee.
    Warren Hunt, of Rayville, attorney for intervenor, appellant.
    George Wesley Smith, of Rayville, attorney for intervenor, appellee.
   WEBB,. J.

The Hanna Motor Company, a partnership, being the holder of several promissory notes executed by Carrie Wilson on December 19, 1924, and secured by chattel mortgage on certain movable property, described in the mortgage, proceeded against Carrie Wilson and the property via executiva and had seized the property and was advertising it for sale, when John Williams appeared and obtained leave to file an intervention and third opposition in which he alleged that he was the husband of Carrie Wilson and that the property described in the chattel mortgage and seized and being advertised for sale was community property and that he had not authorized Carrie Wilson, his wife, to give the notes or to mortgage the property, and that the mortgage given by her was invalid.

He further alleged that his wife had not received any consideration for the notes, and that there was not any consideration as to the community, but that the notes were given by his wife for the debt of a third person, her son, Moncee Wilson; and he further alleges that the clerk of the District Court and ex-officio recorder for the parish of Richland should be ordered to cancel and erase the mortgage as inscribed on the records.

He further alleged that he was entitled to a writ of injunction and prayed for the issuance of a restraining order and a rule nisi and thereafter an injunction and for service of process on the Hanna Motor Company and the recorder and on trial for judgment against the Hanna Motor Company and the recorder ordering the former to surrender the notes and the latter to cancel the mortgage on presentation of the notes, and for the writ of injunction to be maintained, and for all orders and decrees necessary.

The rule nisi was issued and the Hanna Motor Company answered denying the allegations of plaintiff’s petition and specially alleged that the property mortgaged and seized was the property of Carrie Wilson, and further alleged that it had heen damaged by the issuance of the restraining order to- the extent of fifty dollars attorney’s fees, for which amount it reconvened and prayed for judgment recalling the restraining order and dismissing the plaintiff’s intervention and opposition and for judgment in reconvention for the attorney’s fees. '

The sheriff does not appear to have filed an answer to the rule nor was a default taken against him.

The minutes show that the rule nisi was taken up and tried and the case submitted, whereupon judgment was rendered in favor of the Hanna Motor Company as follows:.

“This case coming up regularly for trial on third opposition of John Williams, and answer having been filed by Hanna Motor Company, defendant in third opposition, trial having been had, and the law and the evidence being in favor of defendant in third opposition;
“It is therefore ordered, adjudged and decreed that there be judgment rejecting all demands of said John Williams, intervenor, and third opponent, at his cost; and there is hereby further given judgment in favor of Hanna Motor Company and against John Williams in the sum of twenty-five dollars with five per cent interest from date as attorney’s fees.”

John Williams, intervenor and third opponent, moved for and obtained orders of appeal, suspensive and devolutive, and filed bonds in accordance therewith.

After the rendition of the judgment and after intervenor had obtained and perfected his appeal, the sheriff proceeded to readvertise the property, when intervenor applied to this court and obtained an order prohibiting the sheriff from selling the property until the further orders of this court, and defendant having moved to have the order issued by this court set aside, the motion being submitted with the case on its merits, we considered both at this time.

OPINION

The statement above 'shows that the plaintiff, Hanna Motor Company, in its answer to the rule ¡placed the intervention and third opposition at issue on the merits, and intervenor in his motion filed in this court to have the sheriff prohibited from selling the property seized alleged:

“That upon full trial upon the merits of said intervention and third opposition the Ev’ayer for the writ of injunction was refused and opponent’s demands dismissed.”

Which, as well as the evidence introduced on the trial, shows that intervenor acquiesced in the Hanna Motor Company’s placing the - cause at issue on the merits, and the judgment of the trial court confirms this view.

While from this statement of the proceedings had in the trial court it might be said that the plaintiff, having gone to trial on the merits while the restraining order was in effect, the order should be considered as a preliminary injunction and the judgment having the effect of dissolving the injunction, the suspensive appeal should be held to have maintained the status quo ante; but, on the other hand, it may be as well said, intervenor, having gone to trial on the merits without insisting on his right to have a preliminary injunction issued or refused, waived the' right, and that his action was merely an opposition claiming ownership of the property in which he did not seek to have the sale stopped pending his suit, and we are of the opinion the latter view is the more reasonable, especially as to the effect of the appeal.

The statute, Act- 29 of 1925, Section 5, provides that:

“No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order”, and the intervenor when he went to trial on the merits knew there had not been any preliminary injunction issued, and that if the trial court decided against him on the merits, the restraining order would ipso facto fall; but if this be not true, nevertheless the restraining order being dissolved by the judgment, no appeal could be taken so as to continue the order in effect; and we therefore find that the order prohibiting the sale of the property should be set aside and recalled, and it is now so ordered, the intervenor to pay all costs incident thereto.

MERITS

The evidence establishes that John Williams and Carrie Williams are married, that they reside on a small tract of land, a portion of which they cultivate, other portions being cultivated by tenants; and John Williams testified that the property mortgaged by Carrie Wilson and seized by plaintiff was purchased during the marriage with community funds.

On the other hand, it is shown that the property mortgaged by Carrie Wilson and seized by plaintiff had been assessed to Carrie Wilson and that she at one time owned the property on which she. and Williams resided, and that she borrowed money without the authorization of Williams, presumably for the purpose of cultivating the land.

In the last analysis the testimony of Williams only confirmed the existence of facts which would have been presumed from the fact of the marriage, and the property being in the possession of either of the spouses; but ordinarily the presumption would be sufficient until it is overcome . by evidence showing that the property belonged to one of the individual spouses.

“Every marriage contracted in this state superinduces, of right partnership or community of acquets and gains.”

C. C. 2399.

And:

“The husband is the head and master of the partnership or community of gains.”

C. C. 2404.

The separate and community property is designated in a general manner by Articles 2334 and 2402 of the Civil Code, which read ds follows:

“The property of married persons is divided into separate property and common property.”
“Separate property is that which either party brings into the marriage, or acquires during the marriage by inheritance ,or by donation made to him or her particularly.”

The earnings of the wife when living separate and apart from her husband, although not separated by judgment of court, her earnings when carrying on a business, trade or occupation or industry separate from her husband:, actions for damages resulting from offenses and quasi-offenses, and the property purchased with all funds thus derived, are her separate property.

Actions for damages resulting from offenses and quasi-offenses suffered by the husband living separate and apart from the wife by reason of fault on her part sufficient for separation or divorce, shall be his separate property.

Common property is that 'which is acquired by the husband and wife during marriage in any manner different from that above declared.

But when the title to community property stands in the name of the wife, it cannot be mortgaged or sold without his written authority or consent.

C. C„ Article 2334:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either by right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. * * *”

C. C„ Article 2402.

The fact of the property having been assessed to Carrie Wilson while it indicates that she as well as the assessor were of the opinion it belonged to her, does not tend to show that the property was acquired with the separate funds of Carrie Wilson; neither does the fact that she borrowed money without the authorization of her husband, nor does the fact that she at one time owned the property on which the spouses resided; and considering the testimony of Williams, who stated that he cultivated the crops planted on the property on which the spouses resided, and the evidence which shows that the title to the property on which the spouses resided stands in the name of another, we do not think it can be presumed that the wife was carrying on the business of farming separate from her husband, or that she has some right of ownership in the property on which she and her husband reside and that she retained the administration of the property, and that the price of the property seized came from one of such sources.

• Whefe the spouses have claimed that property 'which the law presumes belongs to the community was the separate property of either, they have always been required to establish with some degree of certainty the source from which the property came, and where purchased during the community, the source of the price paid for it, and that the source was not under the administration of the community, as well as that the property was purchased for the benefit of the spouse who claimed to own it; and while the rule may be relaxed where the creditor of one of the spouses, the wife, is proceeding against property mortgaged by her, and the husband, as in the present instance, asserts that the property belonged to the community, and on trial the wife is not called as a witness, yet we do not think the court can presume the existence of facts directly in conflict with those established by the uncontroverted testimony of the husband and by the facts presumed to exist by law upon proof of facts which do of themselves indicate the existence of the facts to be presumed.

While the plaintiff did not specifically pray that the community be decreed to be the owner of the property, yet we are of the opinion that the question was directly placed at issue in the pleadings and evidence, and that under the prayer for general relief it will be permissible to recognize the community’s ownership; and it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that John Williams, intervenor, have and recover judgment against the Hanna Motor Company, decreeing the property seized to belong to and owned by the community existing between John Williams and Carrie Williams, and that the seizure be released; the Hanna Motor Company to pay all costs of the intervention and this appeal.

ON REHEARING

REYNOLDS, J.

In this case both counsel for plaintiff in intervention and counsel for defendant in intervention plead surprise and the court believes that the facts of the case should be and could be made plainer than they appear in the record before us.

It is therefore ordered, adjudged and decreed that the case be remanded to the District Court for a new trial for all purposes.


author: ODOM, J. REYNOLDS, J.

text:
    No. 3037
    Second Circuit
    BRANTLEY v. SMITH
    (May 18, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Domicil—Par. 3, 13.
    One who leaves the state temporarily intending to return when the first opportunity for work presents itself, making no effort to become a resident or voter in that state, did not lose this residence or legal domicil in Louisiana.
    2. Louisiana Digest — Domicil—Par. 13.
    Where one is temporarily enforced to leave ' his domicil he does not lose it thereby.
    3. Louisiana Digest — Domicil—Par. 3; Elections by the People — Par. II.
    O-ne who has not been in Louisiana for two years and never paid a poll tax has not a domicil in this state and is not entitled to vote.
    4. Louisiana Digest — Domicil—Par. 3, 11.
    One who left one parish to remain permanently in another, returning only in the event of a change in business, has changed his domicil and is no longer qualified to vote in an election at his former domicil.
    5. Louisiana. Digest — Elections by the People — Par. 42, 49, 64.
    Under the election laws of Louisiana, ballots on which were placed additional cross marks, checks, or lines outside the square opposite the candidate’s name are rejected as marked ballots.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Bat Lee Brantley against O. E. Smith, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    J. W. Elder, of Farmerville, attorney for plaintiff, appellant.
    H. G. Fields; Edward Everett, Jr.; G. H. Holloway, of Farmerville, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff and defendant were rival candidates for' the office of town marshal of the town of Farmerville, Louisiana, at a primary election held on May 3, 1927.

According to the count of returns made by the commissioners of election, the defendant, Smith, received 134 votes and the plaintiff, Brantley, received 133.

Within forty-eight hours after the closing of the ¡polls plaintiff filed this contest, alleging that the commissioners of election had allowed Mrs. Aubrie E. Rab.un, Doyle Smith, Mrs. Doyle Smith, Mrs. Blake Albritton and Willie Nolan to vote at said election over his protest; that they were not qualified electors; that Mrs. Rabun, Doyle Smith and Mrs. Doyle Smith were not qualified electors for the reason that they had not been bona fide residents of the state for two years preceding the election and had not been residents of the town of Parmerville for four months; that Mrs. Blake Albritton was not 21 years of age and had not been a resident of the state for two years preceding the date of the primary; that Willie Nolan had moved to the town on January 17, 1927, less than four months previous to the election, and, further, that none of said, parties had paid poll taxes for the two years previous to 1927.

He alleged that if these five persons had not been permitted to vote for the defendant at said primary he would have been nominated for the office.

Defendant, in answer, set up that he was legally nominated, having received a majority of all the votes cast; that each of the voters challenged by plaintiff was legally qualified and properly permitted to vote. In the alternative, he alleged that the commissioners of election had permitted R. G. Taylor, Walter Daniel Edwards and Mrs. J. M. Sally to vote, whereas said parties were not qualified electors of the town, none of them having a residence there; that said parties each voted for plaintiff, and that he protested said votes when they were cast. He asked that the court declare them ineligible to vote for those reasons, and that the number of votes counted for Brantley by the commissioners of election be decreased by three.

In addition thereto, he alleged that the commissioners of election rejected, as marked, two ballots which were properly cast for him, which ballots, on a recount, should be counted for him.

He further alleged one ballot, spoiled by improper marking, was counted by the commissioners for plaintiff, which ballot should be excluded by the court; and, finally, that a proper count of the legal ballots cast at said election would show that he had received 136 votes to 129 for his opponent.

Upon control, the lower court excluded the votes of Mrs. Rabun, Doyle Smith, Mrs. Doyle Smith and Mrs. Albritton, all challenged by plaintiff and cast for defendant, Smith, reducing the total number of votes cast for Smith to 130. He rejected plaintiff’s challenge of the vote of Nolan, holding that he was properly permitted to vote. He further held that R. G. Taylor, Mrs. J. M. Sally and Walter Daniel Edwards, all of whom voted for plaintiff, and were challenged by defendant, were disqualified. He also held that one ballot cast for plaintiff and counted for him by the commissioners, was a marked and illegal ballot and should have been rejected by the commissioners; thereby reducing the number of votes counted by the commissioners for Brantley from 133 to 129, leaving Smith the nominee by one vote.

He ordered the Democratic Executive Committee for the Town of Farmerville to declare Smith the nominee and to certify his name as such to the secretary of state. Plaintiff has appealed.

OPINION ON THE MERITS'

Each of the parties, in the pleadings, has set up the illegality of the election because the ballot used was not the form required by the statute. However, they plead' illegality in the alternative only, and ask that the court consider that question only-in case it is unable to reach a satisfactory-conclusion on the merits. As neither side-has pressed their alternative plea, we shall go direct to the merits.

. The main, contention of each side is that certain persons were permitted to vote who were not qualified.- It is to the interest of all parties that the court pass upon the qualifications of those voters, for if the court should hold that the election was void on technical grounds and order another primary, the same questions would probably be raised and presented again.

On the merits, we hold that Smith was legally nominated.

Plaintiff challenged the votes' of Mrs. Rabun, Doyle Smith .and his wife, Mrs. Murrell Smith. These voted for the candidate Smith. T'he lower court sustained the challenge, and we think it erred in doing so.

The testimony shows that Doyle Smith was born, reared and married in Union parish, tie married Murrell Rabun, the daughter of Mrs. Rabun, who lived in the parish of Union for many years previous to this election. After his marriage he lived with his wife in the home of his mother-in-law in Ward 2 of the parish, several miles from the town of Farmer-ville. His desire and intention was to live in Union parish and he sought employment in Farmerville. Failing to get .work there, he. .secured temporary employment at Huttig, Arkansas. He and his wife went to Huttig in the early part of 1926, where they remained until some time in August of that year. Before leaving, however, for Huttig, he went to friends in Farmerville and informed them that his employment at Huttig was only temporary, that he did not intend to remain there, and asked them to assist him in getting work in Farmerville. He went to the manager of a'n automobile concern in Farmerville and left his application for work, with the request that as soon as there was an opening that he be given work in that' establishment, asserting that it was his intention to return as soon as he could procure work. He and his wife took with them to Huttig a few articles of furniture, a bed, a dresser, and possibly a few chairs, and, we infer, did light-housekeeping there. His testimony is that they rented apartments. They left, however, at their former home in Union parish, the major portion of their furniture, a living-room set, cook-stove, and other - furniture, their cows and chickens. This furniture remained in their apartment, and the cows and chickens remained on the premises previously occupied by them. They left an establishment to which they could and intended to return as soon as Smith could get work in Farr merville. They took to Arkansas only enough of their belongings to enable them to live in small apartments during their temporary stay there.

The testimony that they retained their establishment in Union parish during their absence and that they intended all along to maintain their residence in that parish and to return when, the first opportunity to get work presented itself is undisputed and is borne out by subsequent events. They acquired no property in nor did they make any effort to become residents or voters in the state of Arkansas.

Under the circumstances, we hold that Smith and his wife did not lose their residence or legal domicil in Louisiana.

See:

- State ex rel. Hodges vs. Joyce, 128 La. 434, 54 South. 932. '

Caufield vs. Cravens, 138 La. 283, 70 South. 226.

As to Mrs. Rabun, she never left the state at all, except to visit her daughter and son-in-law in Huttig, and then only at short intervals.

Early in the month of August, 1926, Smith procured work in or near the town of Farmerville and on August 12 of that year he, with his wife and Mrs. Rabun, moved into the Lee Hartman residence in the town of Farmerville. They registered as voters there and lived in the town continuously until March 21. Having lived in the town continuously for more than four months with the intention of making that their permanent residence and domicil, they acquired the right to vote in town elections.

But, on March 21,'they moved out of the town to the residence of one Odom, who lived just outside the corporate limits, where they remained until April 19, when they moved back into the town, where they lived on the date of the election.

It is claimed by plaintiff that even if it be conceded that these parties acquired a legal domicil in Farmerville, they lost it when they moved out on March 21. Let us see if they did.

As stated, they took up their abode in the Hartman' residence in the town of Farmerville on August 12, 1926, and intended to remain there and become permanent residents of the town. About March 21 an automobile concern purchased the Hartman lot and the house in which the Smiths and Mrs. Rabun were residing for the purpose of demolishing the residence and erecting on the lot a garage. Said concern demanded immediate posses-sion of the property and ordered Smith and his family to move out. Smith tried to obtain a house in the town in which to live but could find none. It being' necessary for him to move and being unable to get quarters in' the town, he and his family moved temporarily to Odom’s residence outside of the town.

Smith and Mrs. Rabun testified that they never intended to lose their domicil in the town, that they moved out because they, were forced to do so, that they intended to move back as soon as a house could be obtained, and. that at the first opportunity they leased another residence in the town and moved back on April 19, where they resided together on the date of the election. .

Under such circumstances, they did not lose their domicil in the town. Their absence from the town was enforced. They never intended to move permanently from the town. •

Enforced temporary absence from one’s domicil does not work a loss thereof.

Caufield vs. Cravens, 138 La. 283, 70 South. 226.

These votes were properly counted for Smith by the commissioners and improperly rejected by the court.

With reference to the payment of poll taxes by Mrs. Rabun, Doyle Smith, and his-wife, Mrs. Smith, the testimony of the sheriff and ex-officio tax collector shows that Mrs. Rabun and Mrs. Smith had paid their poll taxes -for the years 1926 and' 1925, and that Doyle Smith had paid the only poll -tax assessed to him, that for 1926, he having become of age • during that year.

As to the, vote of .Willie' Nolan, the ower court properly .held that it should be xcluded.

Mrs. Albritton testified that she had' never resided in Louisiana until March,' 1926. Therefore, on the date of this election' she had been in the state less than two years. Not only that, she had neVer paid á - poll tax here. '

As to the vote of Willie Nolan, the lower court held that he was a legal voter and that his vote was properly counted for Smith.

We have some doubt as to the correctness of the court’s ruling on this point, but inasmuch as the results will be the same if his vote be excluded we shall not pursue the point further. Excluding his vote from those which the court counted for Smith and adding those of Mrs. Rabun, Doyle Smith and his wife, Mrs. Smith, the defendant still has 132 votes, and unless we find that Brantley is entitled to more votes than the .court gave him, 129, Smith has a majority and is the nominee.

As already stated, Smith challenged the votes of R. C. Taylor, Mrs. Sally and Walter Daniel Edwards, each of whom voted for Brantley.

Taylor was born and reared in Union parish and for five years previous to November, 1926, had resided in the town of Farmerville. During that month he and the Millers formed a copartnership, each being equally interested therein, and established a drug-store in Arcadia, Bienville parish. Upon the opening of the drug-store in Arcadia Taylor left the town of Farmerville and moved to Arcadia-and took charge of the business. He is a single man and took with him, bag and baggage, all his earthly possessions. He left behind him no establishment to which he might return, no quarters. He testified that he intended to remain and live in Arcadia and run the business. He said, however, that if the venture proved unprofitable, or if they sold the business, he would return to Farmer-ville. But his testimony makes it clear that he moved to Arcadia to remain permanently and would have returned only in event of a change in business. He remained there more than five months and was living there when the election was held.

Having removed from the parish he was no longer qualified to vote in a municipal election in Farmerville.

As to Mrs. Sally, the testimony shows that, prior to her marriage xto J. M. Sally, she lived in Farmerville, but more than a year prior to the election she and her husband moved to West Monroe in the parish of Ouachita, where her husband engaged in the contracting business and where they were still living on the date of the election. On going to West Monroe they leased a dwelling in which they lived until they built one for themselves, into which they moved as soon as it was finished in the late fall of 1926. When the flood waters inundated that portion of the city where they resided in April of this year, Mrs. Sally left temporarily and went to Farmerville, As stated, her husband is engaged in business in West Monroe; they have built a residence there, where they have resided and were residing at the time of this election. The testimony shows that they established a permanent residence in that city. Mrs. Sally was, therefore, no longer qualified to vote in a municipal election in Farmerville.

Therefore, the votes of Taylor and Mrs. Sally, who voted for Brantley, were properly excluded by the court.

The lower court excluded the vote of Edwards, who also voted for Brantley.

It is not necessary for us to decide whether the ruling was correct or not, because even if Edwards’ vote be counted for Brantley he would still have only 130, after excluding the votes of Taylor and Mrs. Sally.

As to the alleged marked ballots.

One of the ballots counted for Brantley by the commissioners was properly ex-eluded by the court. There were on that ballot two distinct cross-marks, one at the top of the ballot opposite the words “Parish of Union” and the other in the square opposite Brantley’s name. The voter evidently intended to vote for Brantley, but he spoiled the ballot by marking it at a place other than opposite the name of the candidate voted for. The superfluous mark is very distinct. It could not have been made by accident.

In the case of Vidrine vs. Eldred, 158 La. 779, the court held that ballots on which there were placed additional cross-marks, checks, or lines outside the square opposite the candidate’s name should be rejected as marked ballots.

There were two ballots thrown out by the commissioners as marked ballots; these are claimed by Smith; the court correctly sustained the commissioners. One of the ballots has a cross-mark in the space opposite Smith’s name; just above and slightly to the left of the cross there is a distinct pencil mark three-eighths of an inch long. The other ballot has two distinct cross-marks on the right-hand side, one within the square opposite Smith’s name and the other just above it.

Under the authority of the cited cases, these were properly excluded as marked ballots.

The net results of our findings are therefore as follows:

We add to the number of votes, 130, found by the lower court to have been received by Smith, those of Mrs. Rabun, Doyle Smith and Mrs. Doyle Smith, making for him 133.

We exclude, as doubtful, the vote of Nolan, leaving Smith 132.

We add to Brantley’s vote, 129, as found by the court, that of Edwards as being doubtful, making for Brantley 130.

We approve the lower court’s ruling in all other respects.

Smith, therefore, has a majority of two votes.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs.

REYNOLDS, J.

I concur in the decree on the merits. Further, the five votes attacked in plaintiff’s petition are legally registered and not subject to attack on the grounds set out in the petition, except for the non-payment of poll tax, and that attack is not sustained by the evidence.

Perez vs. Cognevich, 156 La. 331, 100 South. 444.


author: ODOM, J.

text:
    No. 2945
    Second Circuit
    ADAMS v. SMITH
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Error and Mistake— Par. 2, 15, 16.
    An error in the description of real estate may be corrected as between the parties to the act in which the error appears.

      2. Louisiana Digest — Error and Mistake— Par. 2, 15;- Registry — Par. 7, 8.
    In view of Articles 2266 and 2275 of the Civil Code, when an owner of real estate erroneously describes property which he does not own and does not intend to sell, the purchaser acquires title to the property which he intended to sell, but so far as third parties are concerned there is no sale.
    3. Louisiana Digest — Registry—Pgr. 7; Judgment — Par. 229, 230.
    The judicial mortgage under Article 3328 of the Civil Code has effect only against the owner of record and, therefore, where property is sold under wrong description, there is nothing in the record to show ownership of the vendee.
    4. Louisiana Digest — Error and Mistake— Par. 15; Judgment — Par. 229, 230, 231.
    The correction of an error in the description of property in a deed dates back to the time of original conveyance, but cannot ¡prejudice rights of third persons acquired in the meantime, such as judicial mortgage creditors. '
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Everett A. Adams against G. W. Smith, et al.
    There was judgment for plaintiff and Interstate Electric Company, Inc., defendant, appealed.
    Affirmed in part' and reversed in part.-
    Ellis & Ellis, of Rayville, attorneys for plaintiff, appellee.
    Theus, Grisham & Davis, of Monroe, attorneys for Interstate Electric Company, Inc., defendant, appellant.
   ODOM, J.

This is a suit to correct the description of certain lots in a deed and to cancel judicial mortgages.

There was' judgment ordering .the deed corrected as to the description of the lots conveyed and ordering the cancellation of the mortgages.

The Interstate Electric Company, Inc., one of the mortgage creditors, appealed.

OPINION

George Wesley Smith owned lots 2 and 4 of block 3 of the Smith-Wren Addition to the town of Rayville, which two lots comprised the entire west half of said block. The east half of the block consists of lots 1 and 3. The map or plat of the subdivision in which this block is located was recorded upside down in the recorder’s office, so that lots 2 and 4, owned by Smith, appeared on the east side of the plat.

On March 14, 1906, Smith sold to R. Q. Etzel the east half of block 3 (being lots 1 and 3). Etzel sold, by the same description, to the Rayville Realty Company, and, by mesne conveyances, under the same description, the property finally went into the hands of the plaintiff.

Smith intended to sell and Etzel intended to purchase lots 2 and 4, or the west half of said block, as did all subsequent vendors and purchasers.

Smith did not own the east half of the block.

The error in description arose because of the fact that the ¡plat was recorded upside down.

After Smith sold the property two of his creditors, the Claiborne Abstract Company, Inc., and the Interstate Electric Company,Inc., obtained judgments against him and had them duly recorded in the mortgage records of Richland parish.

Alleging that Smith intended to sell and did sell lots 2 and 4, or the west half of said block, whereas the deed recites that he sold the east half, or lots 1 and 3 thereof, the present owner of the property brought this suit against Smith to have said error in description corrected, and against said judgment creditors to have the mortgages resulting from the recordation of their judgments cancelled and erased insofar as they operate against the said lots 2 and 4, or the west half of the block.

It is well settled that an error in the description of real estate may be corrected as between the parties to the act in which the error appears.

Waller vs. Colvin, 151 La. 763, 92 South. 328, and authorities therein cited.

There being no dispute as to the fact that the description in these deeds is a clerical error, the judgment of the District Court ordering the correction is correct.

But for the court to go further and hold tñat the mortgages resulting from the recordation of the judgments against Smith are not operative against this ¡property we think was error.

The court held, as we understand it, that Smith intended to sell and did, as a matter of fact, sell to Etzel lots 2 and 4, or the west half of block 3, whereas the deed conveys lots 1 and 3, or the east half of said block; so that at the time these judgments were recorded he did not own lots 2 and 4, and that therefore the judicial mortgages are not operative against them.

It is unquestionably true that as between Smith and Etzel, Smith’s deed divested him of all title to lots 3 and 4, or the west half of the block, because admittedly he intended to sell and Etzel intended to purchase that property.

But the question before the court is not what rights these parties have as between themselves, but, on the contrary, what áre the rights of Smith’s judgment creditors who recorded their judgments subsequent to the date, on which he sold.

In other words, did the deed from Smith to Etzel describing lots 1 and 3, or the east half of block 3, affect Smith’s title to lots 2 and 4, or the west half of the block insofar as Smith’s judgment creditors are concerned.

We do not think so..

According to our view, when an owner of real estate intends to sell certain property but, through error, describes in the deed property which he does not own and does not intend to sell, the vendee, as between himself and • his vendor, acquires title to the property which the vendor owned and intended to sell, but so' far as third parties are concerned there is no sale at all.

Especially is that true where, as in this case, there is nothing in the deed to identify the property except the description thereof. While the deed is not in the record (the case was submitted on an agreed statement of facts) it is not suggested that it bore reference to any other deed or that there was anything at all in the deed by which the property could be identified, except the description above noted.

Article 2275 of the Civil Code provides that:

“Every transfer of immovable property must be in writing.”

And Article 2266 provides that sales, contracts and judgments affecting immovable property which are not recorded as provided by law:

“* * * shall be utterly null and void, except between the parties thereto.”
“The conveyance records are the only things to which one dealing with real estate or any real right thereon needs to look, under the repeated decisions of this court.”

Baird vs. Atlas Oil Co., 146 La. 1091, 84 South. 366.

Waller vs. Colvin, 151 La. 765, 92 South. 328.

Our jurisprudence is uniform to this effect.

Therefore, if Smith, subsequent to the sale to Etzel, had sold lots 2 and 4, or the west half of block 3, to a third party who acted upon the faith of the public records, and such third party had recorded his deed, the second purchaser would have acquired a valid title, because there was nothing on the record to disclose that Smith's title was not good.

Or, if Smith had granted a conventional mortgage on the property, the mortgagee would have been protected.

That point is conceded, for counsel for plaintiff, in brief, say:

“We recognize the correctness of the doctrine that a person who purchases or acquires a mortgage on the strength .of the public records should be protected against any unrecorded instruments, errors in description, etc.”

But counsel argues that this principle should not be applied in cases where third persons acquire rights under judicial mortgages; and the District Court so held. Counsel cite no authority in support of their argument. Counsel’s argument and the holding of the District Court, we imagine, is grounded upon the assumption that creditors do not obtain judgments against their debtors and acquire rights thereunder on the faith of the public records.

That is an assumption, however, and may not be true. The purpose of obtaining and recording judgments by • creditors is to enforce their claims against the property of their debtors, and the fact that a debtor has property recorded in his name might be the sole inducement for a creditor to incur the expense of reducing •his claim to judgment and having it recorded.

Not only that, but the property of a debtor is the common pledge of his creditors, and so long N as a man has property recorded in his name he has or may have credit which he might not otherwise enjoy.

If the court is to indulge in presumption, it might go further and presume that the defendant, Interstate Electric Company, Inc., would not have extended Smith credit to the amount of $1500.00 if he had not owned this or some other real property recorded in his name.

It cannot be assumed that these defendants did not extend credit on the faith of the public records, and it may be that they incurred the expense of obtaining and recording their judgments because of the fact that their debtor appeared to own this property.

Real estate cannot be hidden and is an asset which gives its owner standing and credit in the commercial world. It may well be, and there is no suggestion to the contrary, that the creditors of Smith parted with their goods and money on the faith of the public records, which showed that Smith owned the property in question.

The rule laid down in the Code and sanctioned by an unbroken line of jurisprudence, is that, except between the parties thereto, unrecorded conveyances are “utterly null and void”.

If the court should “wobble” on this point it would at once become involved in “complications and contradictions from which there is no extrication”.

The deed from Smith to Etzel describing lots 1 and 3, or the east half of block 3, conveyed no notice to third persons that he sold or intended to sell lots 2 and 4, or the west half of said block. Therefore, as to them, the deed may as well not have been written and recorded.

In the case of Baker vs. Atkins, 107 La. 490, 32 South. 69, it was held that:

“Where A. is the owner of real estate by undisputed title, and sells the same to B., who fails to record his title, the judgment creditors of A. can acquire judicial mortgages on such property by recording their judgments after the date of such sale and before its registry.”

In that case the (point was made that the judicial mortgage could not be enforced against the property which A. had sold because he did not actually own it at the time the judgment was recorded, he having sold to B. undeb Article 3328 of the Civil Code, which reads as follows:

“The judicial mortgage may be enforced against all the immovables which the debtor actually owns or may subsequently acquire.”

But the court specifically held, in the Baker case, supra, that:

“Giving effect to these provisions (the codal provisions with reference to • registry, etc.,) there can be no actual owner of immovable property, so far as third persons are concerned, other than the owner of record; for, except as between the parties thereto, an unrecorded conveyance is ‘utterly null and void’ and conveys no title."

■ The same principle applies where property is sold under wrong description and where there is nothing in the deed by which the property intended to be sold can be identified.

According to the records, Smith owned lots 2 and 4, or the west half of block 3, when these judgments were recorded, and was, therefore, the “actual owner” thereof so far as these third persons are concerned.

It is true that when an error in description is subsequently corrected, by deed between the- parties or by judgment of the court, the correction dates back to the time of the original conveyance; but such correction cannot operate to the prejudice of third persons who have acquired rights in the meantime.

In the case of Pittsburgh, C. C. & St. L. Ry. Co. vs. Betts, an Indiana case reported in 53 N. E. 439, the court said:

“The mistake in the description was cured by subsequent deed executed by the commissioner under an order of the court in an action brought by the appellee against Homer to obtain such correction, and as no new rights had intervened, the date of correction and confirmation related back to the time of the original conveyance.”

In the case of Waller vs. Colvin, 151 La. 765, 92 South. 328, the court said:

“An error in the description of real estate may always he corrected between the parties to the act in which it appears, but not to the prejudice of third persons acting in good faith and acquiring rights with respect to the property erroneously described.”

Citing Adams, et al., vs. Brews, et al., 110 La. 456, 34 South. 602.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from, insofar as it orders tile deed corrected, be affirmed; and further ordered, adjudged and decreed that said judgment be reversed and avoided insofar as it orders the cancellation of the judicial mortgage of the Interstate Electric Company, Inc., and further ordered that plaintiff’s demands against said company be dismissed. Defendant, Smith, to pay the costs of the lower court. Plaintiff to pay the costs of this appeal.


text:
    No. 2966
    Second Circuit
    TALBOT v. BEVANS FEATHERSTON, Intervenor
    (May 5, 1927. Opinion and Decree.)

      (Syllatois by the Editor)

    1. Louisiana Digest — Agriculture—Par. 11, 21.
    Under Article 3217 of the Civil Code, one who advances money to make a crop has a privilege on the proceeds of the crop and is entitled to be paid in preference to other creditors.
    Appeal from the Third Judicial District Court' of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by M. A. Talbot and Son against W. Henry Bevans; R. R. Featherston, intervenor.
    There was judgment for intervenor and plaintiff appealed.
    Judgment affirmed.
    H. W. Dawkins,' of Farmerville, attorney for plaintiff, appellant.
    H. G. Fields, of Farmerville, attorney for intervenor, appellee.
   INTERVENTION AND THIRD OPPOSITION OF R. R. FEATHERSTON

ODOM, J.

On September 10, 1925, the sheriff of Union parish seized, under a writ of fi. fa. issued under a judgment rendered in a suit styled M. A. Talbot & Son versus W. Henry Bevans, qne Ford automobile and an undivided one-half interest in certain cotton as the property of the judgment debtor.

On September 15 following Dr. R. N. Featherston intervened in said suit, claiming a privilege on the cotton seized as furnisher of necessary moneys and supplies advanced to Bevans to make the crop.

Intervenor prayed that the said cotton be sequestered pending the litigation and that upon final judgment the sheriff be ordered to pay his claim by preference.

He asked that Bevans, the common debtor, Talbot & Son,.the seizing creditor, and the sheriff all be cited and served according to law.

They each accepted service and waived citation.

There was judgment for intervenor recognizing his claim for $199.20 and ordering it paid out of the proceeds of the cotton with preference and priority.

The seizing creditor, Talbot & Son, 'has appealed.

OPINION

Intervenor’s claim against Bevans and. his privilege on the cotton was established beyond question. Bevans admitted that he was due intervenor $199.20, advanced to make the crop, and that he used the same for that purpose. Intervenor, therefore, had a privilege on the cotton under Article 3217 of the Civil Code, which privilege entitled him to be paid by preference out of the proceeds of the cotton.

Counsel for appellant earnestly argues that there was no necessity for the writ of sequestration. The property was already in the custody of the sheriff. The issuance of the writ could not and did not prejudice the rights of the seizing creditor. As a matter of fact, the sheriff did not seize the cotton under the writ because, as stated in his return thereon, the cotton was in his hands when he received the writ. The issuance of that writ was wholly unnecessary, and the lower court, on final trial, dissolved it.

We have carefully read and considered the brief filed by counsel for Talbot & Son, the seizing creditor, and, as we understand it, his serious ground of complaint is that intervenor did not ask for and obtain an injunction restraining the sheriff from selling the cotton seized; that the sheriff, therefore, had a right to sell and did sell the cotton under the writ of fi. fa. and, to quote the language of the brief:

“The sale in this case took place more than six months prior to the trial of this case and the sheriff has paid over long since the funds to the plaintiff (Talbot & Son.) The plaintiff, having been the (purchaser of the same and having retained in his hands the funds realized from the sale in satisfaction of his judgment. * * * At the date of the trial the sheriff neither had in his possession the property nor the proceeds of the sale.”

Counsel further says that no order issued instructing or ordering the sheriff to hold the property pending the outcome of the trial of the intervention.

■Counsel evidently did not have access to the record at the time he wrote his brief, for he is somewhat mixed on the facts. On the day the intervention was filed the clerk of court ordered the property “held subject to the orders of the court”. The sheriff accepted service of the order as did Bevans and Talbot & Son.

As to the payment of the proceeds to Talbot & Son, the sheriff in his return which he made on the writ of fi. fa., after reciting all the facts as to the seizure, appraisement, advertisement and sale of the cotton, closed the return as follows:

“And I announced said cotton sold to M. A. Talbot & Son and the said M. A. Talbot & Son having paid me the amount of their bid on said cotton, which amount I hold for further orders of the court, this the 10th day of October, 1925.”

In his return on the writ of sequestration the sheriff said:

“There being no restraining order, and I having been ordered by the court to sell said property to satisfy said judgment, I did, on Saturday, October 10, 1925, sell the aforesaid property seized under said writ of fi. fa. to M. A. T'albot & Son for the sum of $258.42, they being the last and highest bidder, and expect to hold the proceeds of said sale pending the outcome of the intervention of the said R. N. Peatherston herein.”

He further mentions that:

“All parties having accepted service of the intervention herein.”

Counsel for intervenor offered and had filed in evidence the order of court, the writ of fi. fa. and the sheriff’s return thereon, the. writ of sequestration and the sheriff’s return thereon.

The sheriff, of course, had no right to stop the sale without the issuance of an injunction. But his returns show that he obeyed the court’s order and held in his hands the proceeds of the sale subject to the further orders of the court, which proceeds he now has.

The opposition was made upon the ground that the third opponent had a privilege which entitled him to be paid by preference under Article 401 of the Code of Practice. He had service made on the seizing creditor and the sheriff as required by that article.

The intervenor and third opponent having fully established his claim and his right to the privilege, the seizing creditor has no legal cause to complain at the court’s judgment ordering the proceeds of the sale paid to intervenor.

The judgment is affirmed.


author: WEBB, J.

text:
    No. 2907
    Second Circuit
    CAMPBELL v. WISE
    (February 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    ON MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Courts—Par. 123, 164.
    Where an intervention is clearly a distinct proceeding to obtain a settlement from the defendant and his wife of $3000.00, the Court of Appeal being without jurisdiction will transfer the case to the Supreme Cqurt under the provisions of Act No. 19 of 1912.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by W. O. Campbell against W. H. Wise.
    There was judgment for plaintiff and intervenors appealed.
    Case transferred to Supreme Court.
    J. Rush Wimberly; George M. Wallace, of Arcadia, attorneys for plaintiff, appellee.
    Goff & Barnette, of Arcadia, attorneys for intervenors, appellants.
   WEBB, J.

W. O. Campbell, the holder and owner of a note drawn by W. H. Wise, representing a part of the purchase price of lands purchased by Wise and secured by mortgage and vendor’s privilege on the property purchased, proceeded via executiva to enforce payment.

Following the seizure of the property and just prior to the sale, Mrs. Ida Snider Wilson and others filed a petition, which was given the same number as the proceeding via executiva, alleging that they were the children of Mrs. W. H. Wipe by a former marriage and that their mother had been recognized and qualified as their natural tutrix, and that following her marriage to W. H. Wise she had been retained as tutrix and W. H. Wise had been recognized as co-tutor; that each had taken the oath but had failed to inscribe on the mortgage records any extract of inventory or to give bond, and that petitioners had a claim against Mrs. W. H. Wise and W. H. Wise resulting from the tutorship and a mortgage on the property seized under executory process next in rank to> that of W. O. Campbell to secure the indebtedness due them by their mother, tutrix, and co-tutor, W. H. Wise.

They further alleged that there was an action pending between their mother and W. H. Wise for separation from bed and board, and that W. H. Wise was insolvent, and that on settlement of the tutorship their mother and W. H. Wise will be found to be indebted to them in the sum of three thousand dollars.

They prayed for service on J. E. Currie, sheriff; W. O. Campbell, the seizing creditor; W. H. Wise and Mrs. W. H. Wise, and after due proceedings for judgment ordering W. H. Wise and Mrs. W. H. Wise to file an account in the 'tutorship proceedings and for judgment against Mr. and Mrs. W. H. Wise in solido in the sum of three thousand dollars and with recognition of their legal mortgage on the property seized and the proceeds of the sale.

They further prayed for an order directing the sheriff to hold the proceeds of the sale to be made under the process via executiva, less the amount due Campbell, together with interest and costs, and subject to the further orders of the court, and for all orders and decrees necessary and for general relief.

An order was issued to the sheriff in accordance with the prayer of the petition, and following this order W. H. Wise filed a petition in which he set forth that the property seized had been sold and that the sheriff was holding the proceeds of the sale, less the amount due' Campbell,' together with interest and costs, under the order of the court, and prayed that he be allowed to bond the proceeds, and obtained an order permitting him to bond; whereupon Mrs. Snider and her co-plaintiffs applied for and obtained a suspensive appeal from the order permitting W. H. Wise to bond the proceeds of the sale, less the amount due the plaintiff, W. O. Campbell, and W. H. Wise moves to dismiss the appeal, urging here that the order granting him the right to bond was an interlocutory decree from which an appeal could not be taken.

OPINION

The pleadings clearly show that W. O. Campbell has received the amount due him and that he has not any further interest in the matter, and the ¡proceeding via ex-ecutiva insofar as Campbell and Wise are concerned has been concluded, and although Mrs. Ida Snider Wilson, et als., style themselves intervenors and third opponents, and their action took the same number as the proceeding via executiva, their action is clearly distinct from such proceeding and is in fact simply an action against Mr. and Mrs. W. H. Wise to obtain a settlement of the amount due by them as tutrix and co-tutor, which is alleged to be three thousand dollars, and the order granting W. H. Wise the right to bond was taken in that action, of which this court is without jurisdiction.

It is therefore ordered, under the provisions of Act No. 19 of 1912, that the case be transferred to the Supreme Court.


author: REYNOLDS, J.

text:
    No. 2276
    Second Circuit
    COOK v. LOUISIANA & ARKANSAS RY. CO.
    (April 4, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 635.
    The judgment of a lower cburt in favor of the plaintiff will be reversed when there is no evidence iñ the record tending to show the quantum of damages sustained hy the plaintiff and no evidence showing liability on the part of the defendant.
    2. Louisiana Digest — Appeal—Par. 715,717, 718, 729.
    A motion to remand a case for a new trial, on the ground that evidence introduced on the trial as to the amount of damages sustained by the plaintiff is not shown by the stenographer’s transcript of the evidence, will be refused when there is no evidence, in ,the record showing liability on the part of defendant to plaintiff for damages and nothing to show that in the interest of justice the case should be remanded.
    3. Louisiana Digest — Appeal—Par. 521.
    Where plaintiff obtained judgment in the trial court and there is a defect in the proof as to the amount of damages suffered by the plaintiff and it is made to appear to the court that it is possible, though not probable, that plaintiff introduced evidence on these points in the trial court sufficient to warrant the judgment obtained by him which is not in the record, the suit will be dismissed as in case of non-suit.
    Aippeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. Robert Roberts, Jr., Judge.
    Action by Will T. Cook against Louisiana & Arkansas Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and suit dismissed as of non-suit.
    Charles M. Roberts, of Alexandria, attorney for plaintiff, appellee.
    White, I-Iollopian & White, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by W. T. Cook against the Louisiana & Arkansas Railway Company to recover the sum of $409.21, damage alleged to have been done to fifty bales qf cotton delivered by him to it for transportation through the negligence of defendant’s employees.

The defendant denied liability and especially denied that the cotton was damaged while in, its possession.

On these issues the case was tried and there was judgment in favor of the plaintiff for the sum of $204.60 and defendant appealed.

In this court plaintiff moved that the judgment be increased to the amount sued for.

Plaintiff has also moved to remand the case for a new trial on the grounds:

“That through some error, which he cannot understand, evidence as to the amount of damages suffered by plaintiff is not shown in the note of evidence filed in this case.
“That this omission was not noticed by counsel for plaintiff until he obtained from the clerk of this court the record in this case for the purpose of preparing a brief in support of the plaintiff’s contention.”

OPINION

Plaintiff has asked that this case be remanded for the purpose of taking evidence as to the amount of damages suffered by him by reason of the alleged wrongful acts of defendant, but if this were done and the evidence introduced proved that his cotton was damaged to the amount claimed, he still would not be entitled to judgment for the reason that there is no evidence in the record tending to show that the cotton was damaged while in the defendant’s possession or that defendant was guilty ■ of any negligence in the handling of his cotton.

Counsel for plaintiff in oral argument insisted that there was evidence introduced on the trial sufficient to warrant the judgment rendered in plaintiff’s favor.

The stenographer’s transcript of the evidence bears the followingt certificate:

“I hereby certify that the above and foregoing is a true and correct translation of my stenographic notes taken on the trial of the above numbered and entitled cause taken'at the time and place as set forth on page one (1) hereof.
“Sworn to ah.d subscribed on this the 2nd day of July, A. D. 1924.
“COOK & RUSS,
“Reporters.
“By Mrs. John Marshall,
“Reporter.”

In view qf the fact that there was judgment in favor of the plaintiff in the lower court and his counsel earnestly insists that through unexplainable error evidence taken on the trial sufficient to support the judgment is not in the record, we are not disposed to cut plaintiff off from any rights he may have by a final judgment here.

In our opinion, plaintiff’s case should be dismissed as in case of non-suit.

Houghteling vs. Fisher, 19 La. 475.

Lowry vs. Erwin, 5 La. Ann. 205.

State vs. Moore.

For the reasons assigned it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s suit be dismissed as in case of non-suit.


text:
    No. 2204
    Second Circuit
    LEAR v. JOHN
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 259, 260.
    It is the duty of the vendor of real property by deed stipulating full warranty to protect his vendee against any and all incumbrances existing and operating against the property at the. time of sale.
    2. Louisiana Digest — Taxation—Par. 165, 169.
    The filing of the tax roll by the recorder of mortgages appears as a lien and mortgage against the real property assessed for the amount of the taxes due for the current year after December 31, under Sections 32 and 33 of Act 170 of 1898.
    3. Louisiana Digest — Sales—Par. 259.
    Where an owner of real estate transfers the same under full warranty of title and subsequently acquires the same property at tax sale for taxes due thereon at the time he transferred the same, whatever title he acquires under the tax sale inures to the benefit of his vendee.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Henry C. Lear, et al., against Karem John.
    There was judgment for plaintiffs and defendant appealed..
    Judgment affirmed.

      Cecil Morgan, of Shreveport, attorney for plaintiffs, appellees.
    George Thurber, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiffs brought this suit alleging that they are the owners and in actual physical possession of the southeast quarter of the southeast quarter of Section 20,. Township 18 North, Range 14 West, in Caddo parish, Louisiana, and that the defendant, Karem John, is slandering their title by claiming to be the owner of an undivided one-half interest therein by virtue of a certain tax deed made to him by the tax collector of Caddo parish.

They allege further that they acquired the said property on January 29, 1919, from the defendant, Karem John, and two others, Joe Maroun, and Salim Joseph, the joint owners thereof, under deed stipulating full warranty of title, and that at tho time they purchased the said property the taxes due on the property for the year 1918 had not been paid, which taxes were a debt and a. charge due by the vendors and should have been paid by them; that subsequently, to-wit, July 14, 1919, an undivided one-half interest in the said property was sold ior the taxes of 1918 due by the vendors and purchased by the defendant, Karem John, one of their vendors and warrantors, and that the tax title thus acquired by the defendant inured to their benefit and conferred no valid title on the purchaser under the circumstances.

They prayed that there be judgment decreeing that said tax sale inured to tlieir benefit and not to the benefit of the defendant and that said defendant be ordered to disclaim any title to said property, and for damages.*

Defendant interposed the plea of three years’ prescription, which was referred to the merits.

Reserving his rights under said plea, defendant answered, denying that plaintiffs are in possession of the land and setting up title in himself by virtue of said tax deed.

There was judgment for plaintiffs as prayed for and defendant appealed.

OPINION

On January 29, 1919, Karem John, Joe Maroun and Salim Joseph, joint owners of the property in controversy, sold the same by notarial act under full and complete warranty of title to the plaintiffs herein.

The record shows conclusively that plaintiffs are in physical possession of the land and have been for a number of years.

At the time of the sale of the property to the plaintiffs by the defendant and his associates, on January 29, 1919, the taxes due thereon by the vendors for the year 1918 had not been paid. Subsequently it was put up and sold by the tax collector for said taxes and Karem John, the defendant, became the purchaser of an undivided half interest therein.

The tax deed recites that the property was sold for the unpaid taxes for the year 1918 due by Joe Maroun & Company. The record shows that the firm of Joe Maroun & Company, to which the property was assessed, was composed of Joe Maroun, Salim Joseph and the defendant, Karem John.

Karem John, the tax purchaser, therefore purchased the land, or a half interest therein, at a sale for taxes due at least in part by himself. The amount of taxes for the year 1918 was a debt due by the defendant and his associates and operated as a lien upon said land.

Section 32 and 33 of Act 170 of 1898.

So that at the time the defendant and his associates sold the property it was burdened with a lien and incumbrance which it was their duty to discharge. In their sale to plaintiffs they specifically warranted the title. Under said warranty it was the duty of the vendors to protect the vendee against any and all incumbrances existing and operating against the property on the data of the sale. The defendant became the purchaser of the property at a sale made to satisfy a debt due by himself. The title which he thus acquired, under the common law and under our law, inured to the benefit of his vendees under the covenant of warranty.

In Wells vs. Blackman, 121 La. 394, 46 South. 437, the court (page 415) after citing authorities holding that:

“If A. sells property of which he is not the owner, and he afterwards acquires title, that title vests at once in the vendee.”

Said:

“And equally is it true that if A. sells property of which he is the owner, and, it being sold in satisfaction of a debt due by him, he becomes the purchaser, either directly or through mesne conveyance, the title so acquired inures to the benefit of such vendee.”

In that case the court quoted, approvingly, the following from American & English Encyclopedia of Law, 2nd edition, pages 403-405:

“It is a well-settled principle of the common law that, if one conveys real estate with a covenant of general warranty, he cannot be allowed to set up against his grantee, or those claiming under him, any Utle subsequently acquired, either by purchase or otherwise, and that such new title will inure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns.”

The rule is briefly and concisely stated in 16 Cyc. 694 as follows:

“An ordinary deed of bargain and sale with covenant for quiet enjoyment gives the grantee the benefit of a title subsequently acquired by the grantor.”

With reference to a title acquired by the grantor at tax sale, it is stated in 16 Cyc. 697:

“The grantor may acquire title through a sale for taxes which have accrued since the conveyance but not when the taxes were a lien at the time of the conveyance or the sale was the result of the grantor’s delinquency.”

Under the last quoted rule the defendant acquired no title at all under the tax sale for the taxes for which the property was sold were due and a lien thereon when he and his associates sold to ¡plaintiffs.

But whether he acquired title or whether he did not makes no difference, insofar as the present situation is concerned. If he acquired no title, he has no standing in court and the claim which he sets up to the property is a slander upon plaintiffs* title. If he acquired any title at all under the tax sale, that title, under the common law as well as our own, inured to the benefit of the plaintiffs, and he loses on either horn.

Tlie judgment of the District Court is correct and is therefore affirmed.


text:
    No. 2160
    Second Circuit
    MILLAR v. BAILES
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625. Where the evidence clearly shows that plaintiff and defendant were co-owners . of crossties; that the defendant was to receive the whole amount and remit to the plaintiff the amount due him within fifteen days after the ties were shipped; the finding of the trial court, being clearly correct, will be affirmed.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon.' David B. Samuels, Judge.
    Action by Burke Millar against L. T. Bailes.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, Burke Millar, and defendant, L. T. Bailes, were co-owners of a lot of crossties which were sold by the latter, and in this action plaintiff recovered judgment against defendant for the proportionate amount of the sale price corresponding to the interest of plaintiff in the ties; from which judgment defendant appeals.

The defense set up in the trial court, and which is urged for the reversal of the judgment, is that the ties were sold by defendant for the joint account of both parties and that plaintiff should proceed against the purchaser for the proportionate amount due him.

The transaction by which the parties acknowledged co-ownership of the ties, and their written agreement as to the sale of the same, shows that defendant had the right to sell and that he obligated himself to pay plaintiff a proportionate amount of the sale price within fifteen days after the date the ties were shipped; but it. is contended that the written agreement was modified by mutual agreement of the parties to the extent that defendant would have the purchaser remit direct to plaintiff.

It is not shown that defendant was released from the obligation to pay plaintiff within fifteen days from the date the ties were shipped; neither does it affirmatively appear that defendant sold the ties for the joint account of himself and plaintiff with the understanding that the purchaser would account directly to the plaintiff for any portion of the price, and it is established that long after the sale of the ties defendant had admitted he owed plaintiff the amount claimed, and promised to pay.

The judgment appealed from is therefore affirmed at defendant’s cost.


author: ELLIOTT, J.

text:
    No. 1002
    First Circuit
    TOBIAS v. SCHLOSS
    (February 12, 1927. Opinion and Decree.)
    (March 8, 1927. Rehearing Refused.).

      (Syllabus by the Editor)

    1. Louisiana Digest — Landlord and Tenant —Par. 43, 46.
    Where the lessor agrees to build a filling station and accessories thereto, and . conduct it as such during the term of the lease, turning it over to the landlord at the expiration thereof, the closing of the station permanently by the lessor constitutes a breach of the lease contract terminating the lease and making the landlord the owner of the improvements placed on the property.
    Appeal from the District Court, Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by Mrs. Pauline M. T'obias, Lewis Gottlieb, substituted for Mrs. Tobias, against Edward Schloss.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Benton & Benton and T'aylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

This suit was instituted by Mrs. Pauline M. Tobias against Mr. Schloss, tried and decided in the lower court contradictorily between them, but about the time the decision was rendered Mrs. Tobias sold the property in dispute to Lewis Gottlieb and substituted him in her place in the litigation with Mr. Schloss. The record shows that Mr. Gottlieb was recognized in the lower court as substituted in the case in place of Mrs. Tobias and was granted an appeal to this court. He is now the appellant in the case.

Mrs. Tobias alleges in her petition that on August 23, 1922, she entered into a written contract with Mr. Schloss, whereby she leased to him the southeastern portion of Lot No. 4 in Square No. 33 of the City of Baton Rouge, known as the Suburb Gracia, measuring 50 feet front on North street by 100 feet in depth between parallel lines along the Jackson road; being the northwestern corner of the intersection of North street and Jackson road. The lease was for ¡a period of five years beginning September. 1, 1922, at a rental of $100.00 per . month. • . The total, $6000.00, divided into 60 installments of $100.00 each, the first coming due October 1, 1922. The contract binds the lessee in addition to the monthly rental to erect on the premises a gasoline filling station, with stationary and permanent improvements and equipment, to cost not less than $3000.00, to pay all the taxes on the property during the period of the lease, and keep same constantly in good repair throughout the period of the lease. The contract further provides that the buildings and improvements are to be erected within a year from September 1, 1922, and that at the expiration of the lease all the buildings and improvements, except equipment not affixed to the realty, becomes the property of the lessor without any compensation to the lessee. The lessee also bound himself to keep the improvements constantly insured against loss by fire in the sum of not less than $3000.00, and in case of loss by fire the insurance was to be used by him for no other purpose than to replace and rebuild a filling station on the same site. A loss by fire was not to terminate the lease; but the insurance was to be used by the lessee to replace and rebuild the filling station, and the same was to be conducted as before. It was distinctly agreed in the lease that the premises should never be used for any other purpose than to conduct a filling station, furnishing battery service, sale of automobile accessories, washing, cleaning and storing of cars. Any violation of the lease gave the lessor power to terminate the lease and retake the property with the buildings and improvements thereon without compensation to the lessee.

■ The petition alleges that defendant erected- a filling station building within the time provided hy the contract and conducted and maintained a filling station business in the building on the premises until February 28, 1926, when he discontinued the business, placing on the station a large sign as follows:

“Notice. — On and after March 1 this station will he closed permanently. All business will be handled from the East End Service Station. (Signed) Ed. Schloss, Prop.”

And that said Schloss had, from that date, closed and abandoned the station. That said closing and abandonment constitutes a violation of the lease. That the object and purpose of said Schloss in so doing was to ruin said corner as a filling station and to attract the business therefrom to another filling station belonging to and conducted by him some three blocks distant, known as the East End Service Station.

That said closing and abandonment was damaging to her in that it made the filling station erected on her lot under the contract less desirable by reason of the fact that the business would bé attracted elsewhere and the rental value of the same depreciated.

That her premises is most valuable as a filling station, the building constructed thereon being fit only for such use, and that after the same has been closed and abandoned for the balance of the lease, a period of eighteen months, the City of Baton Rouge will in all probability treat it as abandoned, and refuse to permit it to be reopened.

That the conduct of said Schloss justifies the termination of the lease, which he refuses to acknowledge and continues to withhold the premises from her.

The defendant answered plaintiffs petition at length, but the sum and substance of his answer is that all of the trade and business that had been done at the filling station in question had been brought there by himself after tho erection of the station, and that it was agreed and understood as part and condition of the lease that he had a right to discontinue the use of the premises as a filling station at any time during the lease if he saw proper to do so. That in closing the station and in placing on it the sign mentioned, he was acting within his rights under the contract.

The district judge held that the closing of the filling station and the discontinuance of the business there did not justify the cancellation of the lease, and rejected plaintiff’s demand.

A large amount of parol testimony was taken on the trial. It shows that Mrs. Tobias, the owner of the corner in question, which is a corner lot, had almost made arrangements with other parties to erect a filling station at that place. They had offered to erect a proper building at a cost of not less than $3000.00 at their own expense, equip it with all necessary fixtures, pay her $100.00 a month rent, and at the end of five years turn the property back, with the buildings and improvements thereon, without charge or cost to her. Defendant heard of the arrangement about to be completed and, looking on the filling station about to be erected as a competition business with his own, sought out Mrs. Tobias and complained to her that she should have first considered him before entering into an agreement with others for the erection and conduct of a filling station at that place, and that he was in the market for another filling station in addition to the one he already owned. The evidence shows that Mrs. Tobias and Mr. Schloss were connected by ties of affinity and that their family relations were very clo,se. The result was that Mrs. Tobias and Mr. Schloss entered into the agreement which we are now called upon to interpret, as to their rights thereunder.

The parties do not allege error or ambiguity in the agreement, but the plaintiff contends that the contract binds the defendant to continuous maintain and conduct a filling station at that place, in the building erected under the contract, from September 1, 1923, to September 1, 1927; and that closing the station, discontinuing the business and placing on it a sign as stated, constitutes such a violation of the same that she is entitled to have decreed a termination of the contract and cancellation of the lease. On the other hands, the defendant contends that, under the contract, he had the right to do as he has done. Therefore, the question is, what was the intention of the parties and what does the contract contemplate. The attorneys for the parties have furnished us with able and elaborate briefs. It will serve no particular purpose to analyze, apply or differentiate the authorities from the contract before us, because it seems to us that the intent of the parties can only be ascertained by careful reading of the contract in question, looking at its provisions, keeping in mind the object and purpose for which the buildings were erected on the lot by the lessee. The contract does not expressly say that the lessee is bound to conduct and maintain a filling station at the place and in the buildings erected under the lease, for the entire period of the lease, hut we have come to the conclusion that such intent does, nevertheless, appear from the arrangements and stipulations of the parties. The contract is founded on the primary obligation of the lessee to erect a filling station building, with fixed and permanent improvements, and to keep it in good repair throughout the duration of the lease. The lessees obtained the right to defer the erection of the building for one year after the contract was entered into, because it was not convenient for him to spend $3000.00 in erecting the buildings required by the contract at the time. Now, in view of the close relation of the. parties, if the conduct of a filling station business at that place was not the purpose of the contract, the erection of the building might just as well have been still longer deferred. The erection of this filling station building appears throughout the contract as the primary condition of the contract, and what was the use of erecting it at such an expense, a building not suitable for any other business, if it was not the intention of the parties and the contemplation of the contract that it was to be kept in use as such. The contract obliged the lessee to keep the building in constant order and condition for that purpose. What was the use of doing so if the lessee had the right under the contract to permanently close it and discontinue the business as he has done.

The arrangement about insurance, whereby in case the building first erected was destroyed by fire, the insurance could not be used except to replace and rebuild a filling station on the same site, to be maintained and conducted as was provided for the one first erected, indicates an intention by the parties to keep and maintain a filling station building; and no good reason suggests itself for such provision except that it was to be used and a business conducted in it, to be turned over to the lessor at the end of the lease, as a going concern.

The agreement states that the premises shall never be used for any purpose other than the conduct of a gasoline filling station, furnishing battery service, sale of automobile accessories, washing, cleaning and storing cars.

Having reached the conclusion that defendant, by closing the station permanently, placing a sign on it as he did, committed a very serious breach of the contract in question, it results that the judgment appealed from should be, therefore, avoided, annulled and set aside.

The contract of lease entered into between Mrs. Pauline M. Tobias and Edward Schloss on August 23, 1922, is decreed to have terminated as a result of having been violated on the part of the lessee, in the way stated, and it is ordered that same be cancelled and that the lessee vacate the premises. That Louis Gottlieb, present owner be placed in possession of the lot and improvements thereon as forfeited to him under the contract.

It is further ordered that the defendant and appellee pay the costs in both courts.


text:
    No. 2947
    Second Circuit
    HEARD v. ROGERS
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1.Louisiana Digest — Appeal—Par. 511.
    Where the amount in dispute is exactly one hundred dollars, the court will dismiss the appeal ex proprio motu. Boutte vs. Maillard, 19 La. Ann. 276. •
    2. Louisiana Digest — Courts—Par. 128.
    The Court of Appeal has no jurisdiction of a controversy involving only one hundred dollars; for it to have jurisdiction the amount in controversy must exceed that sum, exclusive of interest, unless the suit comes under some special exception.
    Constitution of 1921, Article VII, Section 29.
    3. Louisiana Digest — Courts—Par. 3, 128.
    The test of jurisdiction of an appellate court, so far as it is determined by the amount or value in contest, is not the amount or value sued for, but the amount or -value remaining in contest when the case has been submitted for decision in the court o.f original jurisdiction.
    Crowell & Spencer Lumber Co. vs. Lynch, et ah, 157 La. 21, 101 South. 797.
    Morey vs. Gladden, 5 La. App. 301.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by James P. Heard against Sam Rogers.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    H. E. Dawkins, of Farmerville, attorney for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendant, appellant.
   REYNOLDS, J.

This was a suit to recover $250.00 as the value of a mule run into and so badly crippled as to make it necessary to kill him so as to put him out of pain.

On trial plaintiff entered a remittitur of $150.00 of the amount claimed, thus leaving in dispute exactly $100.00.

Defendant objected to plaintiff entering the remittitur after the case was on trial. We have been unable to find any authority preventing from doing so and defendant has not cited us to any. In our opinion a remittitur may be entered at any time before final judgment.

This court is without jurisdiction where the amount or value remaining in contest when the case was submitted for decision in the trial court does not exceed one hundred dollars, exclusive of interest.

Constitution of 1921, Article VII, Section 29.

Morey vs. Gladden, 5 La. App. —.

The court, having no jurisdiction ratione materiae, the appeal is dismissed by it ex proprio motu at appellant’s cost.


author: LECHE, J.

text:
    No. -
    First Circuit
    LEBLANC v. RIVET
    (February 12, 1927. Opinion and Decree.)
    (March 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 145.
    Where a possessory action was changed to an action of boundary by .consent of the parties, the judgment, being in consonance with this agreement, is a judgment by consent,' and, as such, is not appealable.
    Appeal from the Parish of Assumption. Hon. Sam F. LeBlanc, Judge.
    Action by Robert F. LeBlanc against Senat Rivet.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    Chas. T. Wortham, of Donaldsonville, attorney for defendant, appellant.
    Gilbert & Gianelloni, of Napoleonville, attorneys for plaintiff, appellee.
   LECHE, J.

Plaintiff alleges that defendant has disturbed him in his use, enjoyment and possession of a road along the upper edge of his tract of land, of which the road is part and portion, situated in the Parish of Assumption on the right bank of Bayou Lafourche. He ¡prays for a writ of injunction for damages in the sum of five hundred dollars, and finally that defendant be perpetually restrained and prohibited from interfering with his use, enjoyment and possession of said road.

Defendant first excepted to plaintiff’s demand and he then answered the same.

Defendant owns lands adjoining the upper boundary of plaintiff’s, and it is evident that the difference between the parties consisted in the proper location of the boundary line between their respective tracts of land. -

Pending this litigation, the parties entered into a written agreement under which a surveyor was employed and then appointed by the court to fix the boundary line which was in dispute. They further agreed that they would abide by the findings of the surveyor and that such findings would be made the judgment of the court.

In due time the surveyor made his report and thereupon the trial judge rendered and signed a judgment in accordance with the agreement of the litigants.

The present appeal was taken by defendant, and plaintiff has filed a motion to dismiss.

We understood defendant to contend in oral argument that the judgment was not responsive to the pleadings, and in brief defendant contends principally that the judgment goes beyond the stipulations contained in the agreement.

The suit originally was instituted as a possessory action, but the parties who are sui juris and free to agree and contract as they please, by their agreement changed the action into one in boundary. So that, although it is patent on the face of' the pleadings that the judgment is not in consonance therewith, the change was consented to and the judgment is beyond attack upon that ground by either of the parties. T'he other ground of complaint, that the judgment goes beyond the stipulations of the agreement is not sustained by the terms of the judgment which appear tó he in strict accordance with the written agreement. It is a, consent judgment and as such is not appealable. C. P., Art. 567; Priestly vs. Chapman, 130 La. 487, 58 South. 156.

The motion to dismiss is sustained and the appeal is hereby, dismissed.