author: Nioholls, C. J.

text:
    No. 12,712.
    Charles Genella vs. P. L. Martin Vincent.
    A perfectly correct assessment by no means carries with it as a necessary result-the validity of subsequent proceedings made in the enforcement of the tax assessed in the name of the party assessed. Hood vs. City of New Orleans, 49 An. 1461; Hodding vs. City, 48 An. 982; Hoyle vs. Southern Athletic Club, 48 An. 879.
    Notice of assessments as having been made is something other than notice of delinquency, and of an intention of selling the property assessed on failure to pay the taxes within a specified Etime. They are distinct matters touching different steps in the enforcement of taxes.

      Article 210 of the Constitution requiring that notice should be given to the taxpayer contemplated that reasonably diligent steps should be taken to make the notice effectual.
    Notice of delinquency and notices of a proposed intention to sell the assessed property should the taxes be not paid within a specified time placed in a letter mailed at New Orleans, the place of assessment, and directed to the party assessed as living at New Orleans is insufficient, where the party assessed had been living in Europe and had died there many years before the assessment— when her succession had also been opened in the District Court for Orleans, and her heir had been recognized and ordered to be placed in possession, and when the property had all the time been in possession of a tenant who could have given information of the facts of the case.
    Where a defendant in a petitory action is evicted from land which he has purchased at a tax sale he should recover from the owner evicting him, the taxes-which he has paid on the land. Walsh vs. Harang, 48 An. 984.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. S. Benedict and Robert G. Rugué for Plaintiff, Appellee.

      W. E. Murphy and J. Zach Spearing for Defendant, Appellant.
    Argued and submitted March 26, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Nioholls, C. J.

In Octobsr, 1889, the plaintiff in this suit obtained from the Civil District Court a writ directing the sheriff of the parish of Orleans to place him in possession of certain property described in his petition, alleging that he had become the owner of said property from the State of Louisiana; the State itself having acquired the same at a tax sale made in enforcement of delinquent taxes. Before the writ was executed, one Prank Grunow obtained an injunction restraining its execution. In his petition for injunction he attacked the title upon which plaintiff declared. The prayer of his petition was that the sheriff be restrained from proceeding under the writ and from interfering with him in the legal occupancy of the property; that after due proceedings the injunction be perpetuated, and that he be decreed to be the legal occupant and possessor of said property, free from interference on the part of Genella.

The District Court, on the trial, perpetuated the injunction, recognizing and decreeing Grunow to be the legal occupant and possessor •of the property free from all interference on the part of the plaintiff. He appealed to the Supreme Court.

The evidence in the cause disclosed the fact that Grunow was in ■possession of the property as the tenant of one Joseph Jacquier. This court held that the issue between the parties before the court was not the right of ownership but the right of possession of • the property; that the value of that right as alleged under the pleadings was not sufficient to give the court appellate jurisdidiction, and it «dismissed the appeal.

.Plaintiff subsequently brought the present petitory action for the property.

In his petition he averred that he was the owner for having purchased it for two hundred and eighteen dollars cash from the State of Louisiana through C. Harrison Parker, Tax Collector of the First District of New Orleans, by an authentic act duly registered, passed before Posey, notary, on October 25, 1889, in confirmation of a previous adjudication made to him by said tax collector on the eighteenth • of the same month in proceedings had under Act No. 80 of 1886. That the property .had been previously adjudicated to the State under the provisions of Act No. 96 of 1882 on the 18th of May, 1888, and deeded to it by an authentic act on July 13, duly registered on July 18, 1888. That both of said sales were made to enforce the payment of State taxes which were due on the property for the year 1887 ■under an assessment in the name of Catherine Neidergang, the former owner, who had purchased it in 1855.

That shortly after she purchased it she married one Joseph M. •Jacquier in Switzerland, where she remained continually thereafter until she died in 1874, but that the persons charged with the duty of listing and assessing property for taxation in said city not having been notified and having never heard of said marriage continued thereafter to assess the property in the same name as before, with the knowledge and consent of both the husband and the wife, who paid taxes on the subsequent assessments without demur or compialnt, thus approving them and ratifying them, and after the death of his wife the assessments was continued in the same name, no notice of her death having been given to the assessors.

That Mrs. Jacquier left no ascendants or descendants or collateral kindred, and the property at her death descended by inheritance to her husband,who assumed and retained full charge and.control over it, collected the rents and revenues and paid taxes on the said assessments, thus again approving and ratifying them, but he failed to pay the taxes of 1887 for which the property was sold to the State and to petitioner as stated during the life of said Jacquier and while he was the sole owner thereof. That all of the proceedings leading up to the- sale to the State and to petitioner, including the assessment, the adjudication and the sale were regular, legal and proper and conferred a valid title upon the State and upon petitioner. That Jacquier had since died, leaving as his universal legatee one P. L. Martin Vincent, who had caused himself to be recognized by the court and claimed to have been put in possession and to be the owner of the property as such, but that he is not the owner, petitioner having acquired it as above stated before the death of Jacquier, who could not transmit by inheritance or otherwise what he did not have. That in addition to the price which petitioner paid to the State for the property on October 18, 1889, two hundred and eighteen dollars, and to Posey, notary, for the act of sale, copy, etc., sixteen dollars and fifty cents, he had paid taxes upon the property up to and including March, 1895, to an amount of three hundred and twenty-three dollars and eighty cents.

That since the date of his purchase one Grunow, now claiming to be • a tenant of Jacquier, under a lease of the property at five dollars per month, remained in possession of it against the will and consent of petitioner, until recently, when the said Martin obtained possession under color of the ex parte order of the court recognizing him as universal legatee of Jacquier and had obtained judgment in the Oivil District Court against Grunow for six years’ rent, say three hundred and sixty dollars, and interest, which petitioner alleged he believed - had not yet been paid; that if it had been, Martin owed this rent to petitioner, and if not the judgment against Grunow for the rent should be decreed to belong to petitioner; that Martin resided in Switzerland and was represented in Louisiana by one Francis Louis Fontenot as his agent, duly authorized to stand in judgment for him. He prayed for citation for the ownership and possession of the property and rent at the rate of twenty-five dollars per month from 18th October, 1889, until possession be delivered. Should, however, the court not recognize Mm as owner, then and in that contingency he prayed that Martin be condemned to pay him three hundred and twenty-three dollars and eighty cents, with eight per cent, interest per annum on each item thereof from the date of each payment, with twenty per cent, additional, and such further sum as petitioner might pay for taxes with interest before the suit was finally decided, and for general relief.

Defendant, through counsel, excepted that the petition contained inconsistent and contrary demands — plaintiff claiming to be the owner of certain real estate and claiming the purchase price paid for the same and taxes paid by him; that plaintiff could not cumulate in the same suit a real motion for the ownership of real estate and a personal action for the payment of a debt.

He pleaded res judicata to the ' claim for the ownership of the property, urging that that issue had been decided adversely to him in the case entitled In re Genella praying for a writ of possession (No. 28,259 of the docket of the Oivil District Court), the judgment in which suit had become final.

The District Court overruled the exceptions. Defendant answered, pleading first the general issue. Further answering, he averred that he was the owner of the property, having inherited the same from Joseph M. Jacquier. That the succession of said Jacquier was opened in the Civil District Court, and respondent recognized as heir and put in possession of the same under the mortuary proceedings taken in the matter of said succession. - That said order was recorded in the book's of conveyance. That the plaintiff had no standing in court or right to question respondent’s ownership, it having been decreed in the suit entitled In re Genella, claiming possession, that he was not the owner of the property. That he was in no way responsible for any sum which plaintiff may have paid, as he alleged, for the purchase of said property or for the taxes he had paid on the same, the said sale and the assessment of the taxes on the same having been declared to be nuli and void in the judgment rendered against plaintiff in the said proceeding (No. 28,259 of the Oivil District Court), now final.

Defendant filed a supplemental answer in which, after again pleading the general issue, he averred that he was the owner and possessor of certain property which he minutely described.

He denied that the plaintiff had ever purchased said property at tax sale, or in any other manner; he denied that it was ever assessed for the year for the taxes of which plaintiff claimed it was adjudicated to the State, and, in turn, sold to him, or ever adjudicated to the State. He averred that the property which was advertised and adjudicated to the plaintiff was lot No. 26 in said square, and plain-tiff fraudulently had the description in the deed made to him to declare the property to be “Lot B,” although “LotB” had never •been adjudicated to the State, nor advertised, nor sold to plaintiff.

In the'event of the court’s holding that the tax proceedings were directed against the lot of ground owned by respondent, then and in -that contingency he averred that all of said proceedings were absolutely null and void, and the said property was never adjudicated to ■the State — that it had no title itself and could convey none to plaintiff for the reason among others that there was no assessment of said property sufficient to identify or describe it — that if there was any •assessment of the same it was not in the name of the then owner, but in the name of Catherine Neidergang, who had been dead for ■many years previous to the assessment, whose succession had been •opened in the Second District Court for the parish of Orleans, whose name, even if she had been living, was not correctly given, she having married Joseph M. Jacquier many years previous to said assessment. That no notice of said assessment or of the pretended delinquency of said tax or of the contemplated sale was given to the owner of said property. He denied that he was responsible for the alleged expenditures pretended to have been made by plaintiff for the reason that they are based upon absolutely illegal, null and void .•assessments, nor is he liable for the amount claimed to have been paid by plaintiff for the purchase price of said property for the reason that said amount is far in excess of the price of the pretended adjudication to the State which formed the basis of plaintiff’s alleged title, and the same did not enure to the benefit of plaintiff or of his author.

The District Court rendered judgment, decreeing plaintiff to have become the owner of the property in controversy on the 18th of October, 1889, and ordering him to be placed in possession of the same. It reserved to plaintiff the right to sue defendant for rents from the i8th of October, 1889, until the property should be delivered to him.

Defendant appealed.

Opinion.

Plaintiff seeks to be declared the owner and placed in possession of certain property, the ownership of which is claimed by the defendant as the heir of one Joseph M. Jacquier. Jacquier himself, acquired the property as the heir of his wife, Catherine Neidergang, who had purchased it prior to her marriage. After purchasing the property she removed to Switzerland, where she married in 1869 and-died in 1874. From 1856 to 1882, the property was aseessed in the name of Catherine Neidergang, Neidergrand, Neidegang, Wider-grand or Neidergrand, but from 1833 to 1889 in her correct maiden name.

From 1860 to 1871 the property was described on the same rolls-as lot No. 21, in 1873 as lot No. 25 and since as lot No. 26 of square No. 156.

All the taxes up to and including those for the year 1886 appear to-have been paid on those assessments.

The taxes for 1887, however, were not paid. On the 18th of May, 1888, the tax collector sold the property to pay them under Act No. No. 96 of 1882 and adjudicated the same to the State.

Subsequently (in October, 1889), the tax collector adjudicatedthe property to Genella, the plaintiff, under Act No. 80 of 1888.

In the deed to him, the description of the property given in the assessment roll of 1887, and in the advertisement under which the sale was made is added to by stating that the property conveyed to Genella as Lot No. 26 was the same which Miss Neidergang had bought from Mrs. Keller by act; before Cenas, notary, on December 27, 1855, and designated in the plan of one Pilié by the letter “B.”

After Genella had obtained a deed for the property he applied to and obtained from the Civil District Court for a writ of possession, but before it was executed he was met by an injunction taken out by one Grunow claiming to occupy the premises as tenant of Jacquier. Grunow, in aid of his possession, attacked the validity of the tax adjudication to the State; also that of the State to Genella. Grunow was quieted in his possession, and Genella appealed. The appeal was dismissed by the Supreme Court upon the ground that the action as brought involved simply the question of possession, as that of title could not be litigated between a tenant and a party claiming rights of ownership adverse to those of the lessor and the-value of the “right of possession” involved was less than that neeess ry to give the court jurisdiction. The case is reported in 45th Annual Reports, page 1377 (In re Charles Genella praying to be put in possession).

Plaintiff then instituted the present petitory action against defendant ,claiming ownership of the property as heir of Joseph M. Jaequier, alleging that Jaequier had inherited the same from his wife, Catherine Neidergang.

The first point to which our attention is directed is the exception of res judicata urged by the defendant based upon the decision of the District Coúrt perpetuating the injunction which issued on the petition of Grunow. The action of the lower court in overruling this exception was correct. The appeal from the judgment on the injunction was dismissed by us precisely upon the ground that • Grunow as tenant was without capacity to stand in judgment upon an issue of ownership, either as plaintiff or defendant.

Our opinion to that effect forms the law of this case. Its effect was to leave the judgment appealed from determinative simply of Grunow’s right of possession and to drive Genella under the circumstances to the action now before us — a petitory action against the owner. It is claimed by the defendant that the property in litigation herein was never sold at tax sale; that it was not assessed by proper description; that it should have been described as “Lot B” of Pilié’s plan, instead of Lot No. 26 of square No. 156, bounded by certain designated streets; that the reference to Pilié’s plan and letter “B ” of that plan in the deed to Genella was unauthorized and fraudulent; 'that even if properly described it was improperly assessed in the name of Catherine Neidergang, as she had married Joseph M. Jaequier and had besides been dead for many years before 1887 and her succession had been opened in 1875, and her husband, Jaequier, had been recognized as her usufructuary heir and universal legatee and ordered to be placed in possession of the movable property of her succession described in the inventory thereof taken by Pitot, notary, on the 14th January, 1875.

The plaintiff in his petition in the present suit in giving the description of the property claimed left out this reference to “ Pilié’’ plan,” and described it as “ A lot of ground with the buildings and improvements, situated in the First District of this city in square bounded by Magazine, Camp, Gaiennie and Erato streets, designated as lot No. 26 in Square 156” while defendant in bis answer “ admitted that he was the owner of the property mentioned in the plaintiff’s petition, having inherited the same from the late Joseph M. Jaequier.” The identity of the property as advertised as Lot No. 26 of square 156 with Lot B ” of Pilié’s plan being thus admitted, the mere declaration in the tax deed that such was the fact is an immaterial fact, not affecting the rights of parties.

Plaintiff maintains that the attack made by defendant upon the assessment as having been made in the name of Catherine Neidergang loses its force inasmuch as Jaequier, her heir, had for years recognized the assessment as good and sufficient by paying the taxes charged up against the property under that assessment. He cited in support of this position Lane and Husband vs. Succession of March, 33 An. 554; Carter, Congreve et al. vs. City of New Orleans et al., 33 An. 816; Factors and Traders’ Insurance Company in Liquidation vs. Mrs. Mary Ann Levy et als., 42 An. 435, and Palmer vs. Board of Assessors, 42 An. 1127.

Defendant, denying this contention, insists that even if it were correct it would avail plaintiff nothing, inasmuch as the sale of the property would be null and void for want of proper notice under the requirements of Art. 210 of the Constitution and Act No. 96 of 1882, to the owner. He cites Villey vs. Jarreau, 33 An. 296; Stafford vs. Twitchell, 33 An. 528; Hayes vs. Viator, 33 An. 1165; Norres vs. Hayes, 44 An. 912; Breaux vs. Negrotto, 43 An. 427; Hoyle vs. Athletic Club, 48 An. 879; Hood vs. City of New Orleans, 49 An. 1461; Lacroix vs. Lumber Company, 49 An. 1445; Hodding vs. The City, 48 An. 982.

This argument was met by the counter claim that a notice (following as to ownership, the name of the person standing on the rolls as such under an assessment recognized as good by the actual owner) directed to the party in whose name the property was assessed, would be sufficient, and in addition to this that the name and residence of the actual owner being uuknown to the assessor, a general notice of an intended sale such as was shown to have been given to unknown owners by publication in a newspaper was all that -¡vas -required in the case to carry title to the purchaser. That Jaequier being a foreigner with no agent or one not known to the assessor, the latter was unable to do more than he did in the way of giving-notice.

The tax deed to plaintiff declares “ that one of these notices (describing the notice) was dnly and legally mailed to the delinquent taxpayer hereafter named.”

The only taxpayer “thereinafter named” was “ Catherine Neidergang.” No mention was made of Jacquier or any one else as representing his succession or as being her heir, and no declaration is made as to the point to which the notice was addressed. The mere general statement extracted from the general proees verbal of the collector descending to no particulars and intended to take in by sweeping recital every notice which had issued from his office, “that notices had been duly and legally mailed to the delinquent taxpayer thereinafter named, does not carry with it the force and effect claimed for it of causing it to be presumed in. each and every individual case where the facts of the particular case are needed to be known that the course pursued by the tax collector, in respect to that case, was precisely that which the law would' have required to be followed to give legality to his acts. His announcement that the notices were duly and legally mailed is simply a general legal conclusion of his own as to the validity of his action, and it does not.take the place of special recitals which might be needed in some particular instance to make his course thereon conform to what the occasion would legally call for.

It is very evident from the tax deed that the only notice attempted to be given in this case in respect to a sale to be made of the prop - erty other than the general notice given through publication in a newspaper was through a letter mailed at New Orleans, addressed to “Catherine Neidergang, New Orleans, La.”

With reference to the general notice the deed declared that the tax collector had published once a week for two weeks in a newspaper in the city of New Orleans a notice of an intended sale addressed generally to all known and unknown owners of immovable property in the first or upper district of the city “ in which he described (the property) in the said tax rolls.”

At the time of the adjudication of the property to the State it was in possession of Grunow as a tenant of Jacquier. It is admitted that Catherine Neidergang,wife of Joseph M. Jacquier.died in Switzerland in 1874; that her succession was opened in the Second District Court for the parish Orleans in July, 1874; that an inventory was made in said succession; that it showed that the inventory owned no other property here other than “ Lot B,” which is in controversy in this case, and which was appraised at twenty-five hundred dollars; that in January, 1875, judgment was rendered in the matter of the succession on the petition of Joseph M. Jacquier, recognizing him as the usufructuary heir and universal legatee of his said wife and ordering him to be put in possession of all the immovable property belonging to the succession of his deceased wife as described in the inventory of her succession taken by Pitot, notary, on the 14th of January, 1875, to be by him enjoyed during his lifetime, and also to be by him administered upon in accordance with the terms contained in the last will of his wife.

It was admitted on the argument that Jacquier, the husband, became the heir of hiS'Wife under Art. 917 of the Civil Code.

It is under this condition of facts that we are called on to declare whether the tax adjudication to the State divested Jacquier of his ownership of the property.

The first inquiry to be made is whether prior to the sale notice was given to the tax delinquent as required by Act No. 96 of 1882, and Art. 210 of the Oonstitution, for if it was not, nowit becomes unnecessary to discuss other questions, as such prior notice is essential to a valid tax adjudication. A perfectly correct assessment by no means carries with it as a necessary result the validity of the subsequent proceedings made in enforcement of the tax assessed (see Hood vs. The City of New Orleans, 49 An. 1461; Hodding vs. The City, 48 An. 982; Hoyle vs. Southern Athletic Club, 48 An. 879).

Notice of assessments as having been made is something other than notice of delinquency and of an intention of selling the property assessed on failure to pay the taxes within a specified fixed period. They are distinct matters touching different steps in the enforcement of taxes, the latter notice being of much greater importance than the former.

In Hoyle vs. Southern Athletic Club, 48 An. 879, we held that “ where property was assessed in the name of ‘ Estate of J. M. Hoyle,’ a notice addressed by the tax collector to the ‘Estate of J. M. Hoye,’ placed and prepaid in the postofflce is not a compliance by the tax collector with the requirements of law.”

That Art. 210 of the Oonstitution, in requiring that notice should be given to the taxpayer, evidently contemplated that reasonably diligent steps should be taken to make the notice effectual.

The same views were expressed in the Succession of Lacroix vs. Lumber Company, Limited, 49 An. 1445, and Hodding vs. The City, 48 An. 982, and Walsh vs. Harang, 48 An. 989.

The facts of this case do not bring it within the exceptional one of Webre vs. Lutcher & Moore, 45 An. 574 (referred to in Russell vs. Lang, 50 An.). The property in this case has been in possession of a tenant from whom the tax collector could have easily obtained the information needed to enable him to perform properly his duty. 'The succession of Catherine Neidergang had been opened in New ■Orleans and her husband, Jacquier, had been recognised as her heir .and ordered to be put in possession.

We are of the opinion that the adjudication to the State of the property in litigation was fatally defective for want of proper notice' to the owners of said property.

The defendant has failed for many years to pay taxes upon it, and has stood by and permitted the plaintiff (as holding title under the adjudication to the State and to himself) to incur all the burdens and responsibilities of ownership which it was properly his own duty to assume and bear. He can not enrich himself at the expense of the plaintiff. We are of the opinion that plaintiff’s prayer made to meet-the contingency of the court’s not recognizing his title to the property set up herein for payments and disbursements made by him, is well founded. Walsh vs. Harang, 48 An. 989.

For the reasons assigned: It is hereby ordered, adjudged and decreed that the judgment of the District Court appealed from be and the same is hereby annulled, avoided and reversed and it is now ordered, adjudged and decreed that the adjudication made of the property in litigation herein to plaintiff and the tax deed held by him under said adjudication and the adjudication of the said property to the State of Louisiana and the tax deed held by the State under said adjudication to it which plaintiff sets up as the basis of his title to said property be and the same are hereby annulled and the evidence of the same be erased from the books of the Conveyance Office of the parish of Orleans.

It is further ordered, adjudged and decreed that plaintiff, Charles Genella, do have judgment against the defendant, P. L. Martin Yinoent, for the sum of four hundred and twenty-nine dollars, with legal interest from the date of payment of each item of the account filed by him in evidence and for such other amount for taxes which he may Lave paid since the filing of this suit. For the purpose of fixing the date of the respective payments made and the ascertainment of what further sums, if any, may be due to plaintiff for taxes paid by him since the institution of this suit the cause is remanded to the-lower court for further proceedings according to law.

Blanchard, J., dissenting in separate opinion.


source: Caselaw Access Project

author: Nicholls, C. J. Bbbaux, J.

license: Public Domain

text:
    No. 12,813.
    Ella Sims, Wife of William H. Jackson, Tutrix, vs. Anna Billington, Wife of Charles L. Younger.
    There are cases where the courtis justified in inferring that improvements put up by a husband on his separate estate, during marriage, and paid for during marriage, and individual or separate debts paid for during marriage were paid through funds belonging to his separate estate, but the facts of cases of that character must be exceptionai. Succession of McClelland, 14 An. 763; Succession of Boyer, 36 An, 509; Succession of Webre, 49 An. 1496.
    Buildings and improvements placed by a husband on his separate property during marriage and paid for with community funds, do not become the property of the community — they belong to the husband, but payments so made give rise to a charge against his separate estate in favor of the community. The separate estate can not be charged with the cost of such improvements, but only with the amount that such improvements enhance the value of the property. Succession of Boyer, 36 An. 509.
    The fees of attorney and all costs of the settlement of the succession of the husband, and consequent settlement of the community, are due by the succession and the community in proportion to the interest of each. Costs lor the sp-ecial benefit of one or the other are chargeable to that one. Succession of Webre,. 49 An. 1491.
    A tutor is entitled to ten per cent, commissions on the amount of the revenues of the minor, not upon the amount of the property, or the property and the revenues.
    The expenses of the minor for board, clothing, tuition, etc., should not exceed her net revenues, unless under special authority given by a family meeting, that an additional amount should bej,taken from his capital. O. C. 350. Services rendered to the tutor and to his family by the minor should^be taken into consideration in fixing a claim for board against her.
    A tutor has the right to bring into his account and charge the minor with amount paid by him as the minor’s proportion of the debts and charges of a succession in which the minor was an heir where the property of that succession has been partitioned between the'tutor and the minor’s co-heirs, and the tutor has received and charged himself with the minor’s part of that property (which largely exceeded the amount paid out by the tutor) and„the revenues thereof. The fact that the debts of that succession were not paid at the time of the partition is an immaterial circumstance, as in a. partition no partition is usually made of the debts, each heir remaining bound for his proportion thereof. O. C, 1371.

      Community funds received by the widow after her husband’s death, and prior to> her appointment as tutrix oí her minor child, must be accounted for in her account of tutorship. She is entitled to show that they were paid out for the benefit of the community.
    The court can not compel the minor, without her consent, to receiye in payment of claims due her by her tutrix, and by her step-father as her co-tutor, a store building placed by the latter on her separate property.
    A tutor can properly claim credit for premiums of insurance paid on the residence building upon the separate property of the minor.
    A tutor is properly charged in favor of the minor for all movables converted by him, with legal interest from date of conversion.
    A PPEAL from the Tenth Judicial District Court for the Parish of *- Avoyelles. Oullom, J.

      J. C. Cappel for Plaintiff, Appellee.

      W. Hall, Joffrion & Joffrion for Defendant, Opponent, Appellant.
    Argued and submitted May 18, 1898.
    Opinion handed down June 21, 1898.
    This suit involves the settlement of the tutorship of Anna Billing-ton, now wife of Charles L. Younger by her mother, Ella Simms, now wife of William H. Jackson, the said Jackson acting as co-tutor with; his wife.
    Incidentally connected with this suit is the settlement of the community of acquets and gains which existed between Ella Sims and her first husband, George W. Billington.
    George W. Billington and Ella Sims were married on March 10, 1876.
    George Billington died in April, leaving one child, Anna Billington, issue of his said marriage.
    The widow, Mrs. Ella Billington, married William H. Jackson in February, 1881.
    Up to that date no steps whatever had been taken toward opening the succession of George Billington, the widow having taken possession of all the property without legal proceedings.
    On the 28th of September, 1883, she filed a petition in which, after reciting her second marriage, and that she had thereby forfeited her right to the natural tutorship, she.not having, prior to said marriage, taken legal steps to retain the same, she prayed that a family meeting be convoked looking to the appointment of a tutor to the minor, Anna. The meeting was held under order of court and recommended ithat the mother be appointed tutrix and her husband co-tutor. The «court so ordered.
    On the application of the tutrix an inventory was made in September, 1883, of the property belonging to and dependent upon the succession of George Billington and the community between him and his wife, Ella Sims. On this inventory the “home property” was put ■down as being the separate property of George Billington, no allu■sion whatever being made to the residence building upon the same. The property was valued at four hundred dollars.
    An engine was also put upon the inventory as separate property, ¡being valued at three hundred dollars.
    An item of five hundred and twenty-three dollars and fifty-three •cents was also placed upon the inventory as separate property, that amount of separate funds of the deceased being declared to have :been received by the widow after her husband’s death.
    On February 10, 1897, the minor, Ella Billington, married Charles Xi. Younger. On the 13th of April following Mrs. Younger prayed that her mother and step-father be cited and ordered to file an •account.
    .Before doing so the mother and step-father filed a petition in which 'they averred that the inventory was incorrect in some particulars. "They prayed that a new inventory be taken, and it was ordered, and a new inventory was taken.
    ■On this inventory the engine, which had figured before as separate property, was made to appear as community property. The “ home property” was still put down as separate property and valued at four hundred dollars, but the residence and outhouses upon- that property were put down as belonging to the community and valued •at six hundred dollars.
    A certain “ store ” building on that property valued at four hundred dollars, which Jackson had erected on the home place after his marriage, was declared to form no part of the property,- either of the succession of Billington or the community, but to belong to the community between Jackson and his wife.
    The item of five hundred and twenty-three dollars and fifty-three ■cents was dropped entirely from the inventory.

      Anna Billington’s grandmother, Rachel Billington, left a will which lapsed by reason of the renunciation of all rights thereunder by the universal legatee. A suit was then brought in behalf of the minor, Anna Billington, by her mother as tutrix and her step-father as co-tutor, for the partition of that succession between Anna Billington and her aunt, Mrs. Hardie. A partition in kind was ordered to be and was made. No mention of the debts of that succession was made at the partition. The mother and step-father of the minor took possession of the property allotted to her, to-wit: two tracts of land and some movables. Mrs. Ella Sims, wife of Jackson, and Jackson filed an account under the order of the court through which was sought to be finally settled and liquidated all rights which the minor had in the separate estate of her father — in the community between him and his wife and in the succession of the grandmother, Rachel Billington — and to ascertain and terminate the responsibilities of Jackson and his wife as tutrix and co-tutor of Mrs. Younger. Mrs. Younger opposed the account in various particulars — she especially resisted the claim •that either the engine referred to or the buildings upon the home place belonged to the community — she insisted that her mother and co-tutor should be charged with the value of the .engine and interest, and with the item of five hundred and twenty thrée dollars and fifty-three cents with interest thereon from the •date of her mother’s second marriage; that they should be charged ■with rent of the home property at the rate of two hundred dollars per year and interest thereon, the rent to begin at the date of the •second marriage; that they should be charged with the value of three horses and three cows and calves with interest thereon. She opposed a charge brought against her for board, tuition, clothing, etc., at the rate of seventy-five dollars'a year from the date of her mother’s second marriage, aggregating nine hundred and seventy-five dollars, and the claim made as for taxes paid on the property belonging to her; she opposed all claims advanced as for debts of her grandmother as having been paid by her step-father. Also all legal costs and charges and commissions; she opposed the claim advanced for premiums of insurance paid on the home residence.
    The court disallowed the charge for nine hundred and seventy-five dollars for board, tuition, etc., and struck off from the account an ■ amount of four hundred and fifty-five dollars for which accountants’ had charged themeslves for as the rent of the home place since the date of the second marriage, holding that the use by Jackson and wife of the part of home place other than that on which the “store” had been built was remuneration sufficient for all claims for board, tuition, clothing, etc., but that rent was chargeable for the use of the store site. It deereed, however, that in lieu of rent for that portion of the ground, the store building itself, which was valued at four hundred and sixty dollars, should be made to belong to Mrs. Younger. It deereed that the tutrix should be allowed as a charge against the minor one-half the value of the residence placed on the property of George Billing-ton, and that an additional item of three hundred dollars be charged on the final account against the minor — it decreed “ that the item appearing on the original inventory of five hundred and twenty-two dollars and fifty-three cents and charged against the tutrix could not be considered a legal charge against the tutrix, it being community property, the same having been expended for community debts amounting to three hundred and sixty dollars, by the tutrix, and the remainder used for the support of the widow and minor prior to her marriage with Jackson. It further decreed that the three hundred dollars, which figured on the account as the price of an engine which the widow had sold, were community funds and should be divided equally between Mrs. Younger and Mrs. Jackson; the court finding that the engine had belonged to the community. It decreed the homologation of the account as so amended by it — decreeing the costs to be paid by the succession.
    Accountants filed in court a conditional acceptance and acquiescence in the judgment “ in so fardas the decree accorded the store building of W. H. Jackson, valued at four hundred dollars, to opponent in lieu of reno,” the condition affixed being that the judgment as rendered should be accepted by Mrs. Younger or affirmed on appeal, the building to be taken as a substitute for rent; in case of reversal of the judgment they reserved all rights to urge ownerhip of the store.
    Mrs. Charles L. Younger appealed.
    Appellees answered the appeal, praying “ that the judgment of the lower court, disallowing item two of the final account, amounting to nine hundred and seventy-five dollars, for expenses of minor, and the item of four hundred dollars, value of the store building, separate property of W. H. Jackson, co-tutor, wherein the said building was decreed to the minor opponent in lieu of rent, be amended by allowing the said items as charged on said final account, and thus amended said judgment be affirmed in all other particulars.”
   The opinion of the court was delivered by

Nicholls, C. J.

An examination of the evidence in the case satisfies us that the engine, whose price, after being sold by Mrs. Billing-ton, was placed on the first inventory taken, as an asset of the separate estate of her husband George Billington, was properly placed there. There is some conflict of testimony as to the date of its purchase, but we think it was bought in 1875, prior to Billington’s marriage. The entry on the inventory remained unquestioned as to its correctness up to the time that the minor called for an account, and during the intervening period the relatives of the minor specially familiar with the facts of the ease have died. Jackson and his wife were both present when the entry was made, and raised no objection when matters were fresh and disputed claims were susceptible of easy proof. The court erred in decreeing the engine to have been community property, and the price thereof, three hundred dollars, to be community funds, belonging one-half to the opponent and the other half to her mother. The engine was the separate property of George Billington, and the entire price of three hundred dollars belonged to opponent, and tutrix and her husband, W. H. Jackson, are chargeable with and must account for said amount in solido.

We are of the opinion, under the testimony as matters stand, that the residence building upon what is referred to herein throughout as the “home place” was erected upon it by Billington in 1878, after his marriage. There is considerable doubt as to whether the lumber out of which it was constructed, or a portion thereof, did not belong to him prior to bis marriage. Mrs. Billington testifies that the funds with which payment was made were sums received by her husband for work done by him as a mechanic after his marriage. There was no attempt made to contradict that statement, and legal presumption supports it. Succession of Boyer, 33 An. 508. There are several reported cases in our decisions where the court has felt itself justified iu inferring that improvements put up by a husband on his separate property, or paid for during marriage, and individual or separate debts paid for during marriage, were paid through funds belonging to his separate estate, but the facts of cases of that character must be exceptional to authorize us to act on such an assumption. An interval elapsed between Billington’s marriage and the erection of the house long enough to have enabled him to realize sufficient money during the period to have met the payments called for, and his means before marriage were not shown to have been so large as to almost necessarily lead us to impute their unexplained disappearance to outlays made for the building, It is possible that the whole sum of eleven hundred and thirty dollars and ten cents, proceeds of bridge, paid at different intervals between May 10, 1878, and January 10, 1880, may have arisen from a debt due to Billington before his marriage, but no evidence was introduced to show the character of the contract under which they were paid, nor the time it was entered into. Of the amount stated seven hundred and eighteen dollars were received by Billington himself after his marriage, and the balance by his widow. The facts of the case should have been shown.

Comparison of the facts of this case with those of Succession of McLellan, 14 An. 763, and Succession of Boyer, 33 An. 509, will show the clear distinction between them under the evidence found in the record.

Buildings and improvements placed by the husband on his separate property during marriage and paid for with community funds do not become the. property of the community — they belong to the husband; but payments so made give rise to a charge in favor of the community against his separate estate. This claim is neither for the cost of the improvements nor is it for the value of the buildings. In the Succession of Ella Roth, 33 An. 541, affirming Mercier vs. Canonge, 12 Rob. 385, we said that “ it was well settled that the recompense due to the community is the enhanced value resulting to the separate property from the estate at the date of the dissolution of the community, and that the result was reached by making an average of the valuations placed by all the several witnesses on the store and land and store together, and on the land or store alone.” See also on this subject, Mrs. Johanna Dillon vs. Luke Dillon, 35 An. 93. The law governing the case is announced in Art. 2408 of the Civil Code as follows:

“ When che separate property of the husband or the wife has been increased or improved during the marriage, the other spouse or hisi or her heirs shall be entitled to the reward of one-half of the value-of the increase or amelioration, if it be proved that the value or ameliorations be the result of the common labor expenses or industry, but there shall be no reward due if it be found that the-increase is due only to the ordinary course of things, to the rise in the value of property or the chances of trade.”

We understand that portion of the judgment which decrees “ that an additional item of three hundred dollars be charged on said final account against said minor,” to fix three hundred dollars as being the amount chargeable against the minor for and on account of the-increased value of the home property on account of the building, placed and appellee’s acquiescence in the judgment to that effect, but appellant having taken the ground that the building was separate-property, paid for out of separate funds, has not informed us whether, assuming that her position be not accepted and that she be chargeable with any portion of the price of the improvements, the amount fixed by the court would be satisfactory to her or not;-we therefore fix the amount, as we understand it to have been fixed by the lower court, at three hundred dollars.

Accountants are entitled to repayment for taxes paid on the-property belonging to the succession of Billington after Mrs. Billington’s second marriage; but the evidence in the record on that-subject is not clear and at all satisfactory to us. The tax bills aro made out mostly in the name of Jackson, and the taxes upon the-different properties are so merged together and confused that we are unable with precision to fix how much was due by the succession. Accountants should before making out their account have-separated the taxes so as to show beyond question what particular-portions of the taxes were due upon the property of the succession, and by proper evidence show the correctness of the separation as made. We can not be expected to make calculations and detail work of that character. The items of taxes must be held not proved and the judgment sustaining them reversed, and the matter is left open for future.examination and decision.

The legal charges and costs and attorney’s fees incurred by accountant in the matter of the succession of George Billington should be divided between the minor and accountant equitably according to the extent of the interests of the respective parties, as. announced in the Succession of Webre, 49 An. 1491, as the settlement of the husband’s succession carries with it the settlement of the community in which accountant, Mrs. Jackson, is interested— any cost incurred for the special benefit of one or the other of the parties to be charged to that particular party. The costs and attorney’s fees incurred in the matter of the succession of Rachel Billington should have been paid equally by Mrs. Hardie and the minor, Anna Billington. The judgment should be and it is hereby reopened on the subject of costs and attorney’s fees in both, succession to be taken up and disposed of de novo in the District Court. The tutor is entitled to ten per cent, commissions on the amount of the revenues of the minors, not upon the amount of the property or of the property and the revenues. A comparison with’the revenues, as shown by the account when homologated, will fix the amount of the commissions.

Under no circumstances could the expenses of the minor for board, clothing, tuition, etc., exceed her revenues (C. C. 350) so as to leave a “debt” hanging over the minor at the termination of the tutorship which, being enforceable, would, if she were nob prepared to pay it, in all probability sacrifice her property and ruin her. The lawmaker contemplates that expenses of this character should either be met as they spring up by taking from the minor’s revenues or from his capital by authorization of a family meeting under Art. 350, O.O., or that they be not permitted to spring up at all. The minor’s “revenues” under this rule must be taken to be what remains each year, after the payment of taxes of that year.

Accountants have charged the minor with nine hundred and seventy-five dollars on this score. The evidence shows that all the parties are in very moderate circumstances — the step-father keeping a small country store, built by him upon a ten-acre tract of land belonging to the minor, and he and bis wife (opponent’s mother), their four children and opponent herself, all lived together in the residence built upon the place during the first marriage. Opponent is shown to have very seldom left her home, and it is fair to presume that her wants were small, as were the expense's incurred on her account. Living as an inmate of her own home with her mother, step-father and her half brothers and sisters younger than herself, she was very naturally called upon to perform,- and the testimony shows, that she did perform, services of various kinds, such as a family so circumstanced would be likely to need from a member of the family. With that factor present it is exceedingly difficult to gauge the proper extent of any claim to be brought against her by her parents. The difficulty in the case is increased by there being a conflict in the testimony as to the extent and continuity of the services rendered by opponent. Several decisions have held that no charge whatever should be made against the child as between her parents and herself. It is intimated that a step-father, standing in lieu of a parent, should govern himself and be governed by the same rule. Succession of Boyer, 36 An. 511; Succession of Gros, 23 An. 106; Walker vs. Barrow, 43 An. 867; Succession of Sutton, 20 An. 151. One brother even who has boarded and given tuition to another brother is supposed to have done so from feelings of natural affection in the absence of special circumstances calculated going to show the contrary. 6 An. 100, Verret vs. Belanger. Accountants have made an estimate ” of what they consider proper to be charged to the minor, but have not given the data upon which that estimate is based. What have been the revenues of the minor? The only amount which had taken definite shape up to the time that the judgment of the District Court was rendered was the amount received by accountants from rent received from the property which fell to the minor in the partition of the Rachel Billington estate. The only other source of revenue is the rent of the home place,” the extent of which rent is one of the matters in litigation in this suit.

On the account (filed June 21, 1897) accountants charge themselves with four hundred and fifty-five dollars as rent for that property since 1883, or less than thirty-five dollars a year. The court Substantially fixed it at about nina hundred and twenty dollars, or about seventy-five dollars a year, compensating all that amount for board, etc., except the sum of four hundred and sixty dollars. This-would fix the expenses of the minor at about thirty dollars per year for the corresponding time. We think that a reasonable rate if that am Dunt should be found to fall within the minor’s revenues. We think, however, that the rent of the home property is fixed attoo low arate. It consisted of ten acres of land, upon part of which Jackson, after his marriage, constructed a store, which he has used ever since — a fair dwelling with four rooms and a hall down, and two rooms up stairs, a couple of stables and outbuildings. We think the rent of property of that character in the country should certainly be worth at least one hundred and fifty dollars a year.

Opponent complains that accountants should have been permitted to have been brought into their account and have considered by the court any matters connected with the succession of Rachel Billing-ton in which she acquired an interest during the tutorship as heir of her grandmother.

The minor being under tutorship- when that succession opened the tutors of the minors finding a will of the deceased in existence detrimental to opponent’s interests came to an amicable settlement with her aunt (her grandmother’s legatee) by which the latter renounced all advantages under the will and consented to take the succession with the minor, share and share alike, and to have the same partitioned. Opponents brought suit for that purpose and the property of the succession was divided in kind. The tutor as such took possession for the minor of the property so allotted to her and were bound to account to her for it at the termination of the tutorship. They placed the same on their account and undertook to account for their administration of it while tutors charging themselves with certain revenues and crediting themselves with various amounts. Whether accounts in respect to these matters be correct or not is a different matter from their right to present their gestión as to this particular property as a part of their general account as tutors. We think they had the right to so present them subject to contest.

Opponent complains that the tutors should have paid any portion of the debts left by Rachel Billington. We see no ground for complaint if the debts were due and the tutors paid for the minor no more than what was really her share of the debts. Art. 1871, O. C., declares that in a partition no partition is made of the passive debts of the succession — that each heir remains bound for the share he takes in the succession.

The debts of the succession of Rachel Billington were small in respect to the value of the property received by the heirs.

Opponent claims that the tutors paid a larger proportion of those debts than the minor was liable for; that they paid in entirety some debts instead of paying the minor’s virile share. There seems to be some ground for that complaint. Some of the taxes paid seem to have covered property other than that received by thé minor, and the mortgage note paid by the tutors seems to have been paid in full instead of by contribution. As this case will have to go back we ■think it best to reopen the matters connected with the settlement of the Rachel Billington succession, and leave them open for future ■examination and decision.

Opponent complains that accountants should have been permitted to establish by testimony the amount that Mrs. Billington had during her widowhood paid out for debts of the community, and for the support of opponent and herself out of the five hundred and twenty-three dollars which appeared on the first inventory, as they did not place ■the amounts so expended on the account, so as to notify her of proposed proof on the subject. She insists, however, that'this amount •of five hundred and twenty-three dollars was correctly admitted in the first inventory to belong to the separate estate of her father. The amount in question seems to have been received by Mrs. Billington after her widowhood from Mr. Hardie as part of the “net proceeds of the bridge.” They are that part of the proceeds of the bridge which were turned over after Billington’s death to his widow, the other part having been received by himself during his lifetime.

The fund was that which we have already referred to as having to be taken as a community fund in the absence of evidence to the contrary. We must so consider the part which was turned over to Mrs. Billington. We think the amount was erroneously placed on the first inventory to the credit of the husband’s separate estate. We think that the matter of the expenditure of this amount should be reopened and left open for future examination and adjustment. Opponent was not notified that it should be the subject matter of litigation.

The court erred in decreeing that the store building erected upon the “home place” by W. H. Jackson, should be taken by opponent in place of “rent.” The ownership of thejbuilding was in Jackson— he could not be made to lose or opponent be made to acquire the ■ownership of the same without their respective consent. If “rent” should be found to be due by accountants it will have to be paid by them, unless compensated in some legal way.

We think the charge made for repayment oí¡ insurance premiums paid on the residence building on the home place a proper one.

Accountants should be' charged for all movables converted by them with legai interest from date of conversion.

We think the best method of disposing of this case is to reverse the judgment of the District Court and to remand the cause to the District Court with instructions to Ella Sims, wife of W. H. Jackson, and W. H. Jackson to file a full and final account of their admin-, istration as tutrix and co-tutor of Anna Billingtou, wife of Charles L. Younger, in conformity with the views herein expressed, and it is hereby so ordered, adjudged and decreed. Costs of appeal to be paid by appellees.

On Application eor a Rehearing.

Bbbaux, J.

Plaintiffs and appellees in their application for a rehearing set forth that this court erred in allowing in favor of the minor, against the tutor, two thousand two hundred and fifty dollars as rent of the “home place” in succession of George Billington, being one hundred and fifty dollars per annum for the number of years stated.

And in allowing against the minor only four hundred and fifty dollars for support and care for the same period as just stated.

. As to the former, the two thousand two hundred and fifty dollars,, we yield assent to plaintiff’s representation to this extent only. We rescind that part of our decree heretofore rendered allowing the-amount of two thousand two hundred and fifty dollars, as just, stated.

Having rescinded that part of our judgment, we leave the question open for future adjustment. All rights of the parties as to-that amount are reserved. Evidence of plaintiff and evidence for defendant may be heard as relates to the amount which should be-allowed as rental for the place identified as “home place,”’ occupied as shown by the evidence. After the evidence will have been heard the matter will be fixed by judgment, and the plaintiffs and appellees will be charged up with this rental: the sum which may be found due. ' We desire to have it well understood upon this point, that it is left to future adjudication, and that it is the only point in regard to which we make a change on this application for a rehearing.

The next ground of objection, numbered two in the application for • a rehearing, is, that an.error was committed in our decision in decreeing that the engine and boiler valued at three hundred dollars is the separate property of the minor.

We have given further consideration to the facts bearing upon this point.

We are firmly convinced that as to this item our decision is absolutely correct.

It must, in consequence, in this respect remain unchanged.

The next ground of appellant for a rehearing is numbered 8 (three) and sets forth that our holding that the tutor had paid more than the minor’s share of the debts of the seccession of Rachel Billington was error.

This was only left open for future hearing and determination, so that complainant has on that score no cause to find fault, as the question is left open and is not affected adversely by our decree.

The next ground of the application, numbered (4) four, asserts that there was error on our partin our having decided that the'tutor had not shown sufficiently exact amount of taxes paid for the minor..

We thought and still think that an account should be made out of these taxes, showing amount of tax-es paid for the minor.

And that it should have the support of sufficient evidence to render it entirely certain that the taxes charged were paid for the * minor.

5. Our reopening the question and permitting evidence as to item of five hundred and twenty-two dollars and fifty cents is complained of by appellee.

It is asserted that the widow expended this sum for debts and support of herself and minor prior to her second marriage.

We remanded the Case as relates to the question here on the ground that further evidence should be introduced in support of the claim. We do not think that as to this item we should rescind our judgment.

A minor is concerned. We think further evidence can well be offered in support of this claim.

Lastly: As relates to the costs of appeal a question also raised.

Where a judgment is reversed as in this case they are due by appellee. Nothing takes the case of the ordinary rule.

After having rescinded our decree, only as relates to the item two thousand two hundred and fifty dollars rental as above set forth, we refused the application for a rehearing. The amendment we have made could, in bur view, be made on the application for a rehearing and without granting a rehearing.


author: Breaux, J.

text:
    No. 13,002.
    State ex rel. Eugene Barrow, Tutor, vs. J. N. Ogden, Clerk District Court.
    The rules of the Supreme Oourt direct to omit (in the absence of special instructions from appellant) copying in the transcript of appeal all ordinary process and return thereon, such as citation and writs.
    Statute 101 of 189Í, relating to shorthand reporters, their fee and the transcript of testimony, is not repealed by statute 203 of 1898 relating to eleik’s costs.
    ^^PPLIOATION for a Writ of Mandamus.

      J. F. Pierson for Relator.
    Respondent pro se.

    Submitted December 10, 1898.
    Opinion handed down December 19, 1898.
   The opinion of the court was delivered by

Breaux, J.

The relator is an appellant in ease entitled R. H. Prayn vs. I. T. Young, Sheriff, et al.

The respondent is clerk of the District Court for the parish of East Baton Rouge.

The relator avers that the oral testimony in the case entitled as above was taken by a stenographer, and that his written notes of the testimony were duly filed in the lower court soon after the trial of the case, and are now in the custody of the clerk.

He alleges further that Statute 8 of 1894 makes it the duty of the clerk in preparing the transcript of appeal when the testimony has been taken by a stenographer and its transcription has been filed to embody in the transcript the original transcription, for which the clerk of court is not allowed to charge. He avers that the clerk declines to comply with this law.

Relator sets forth in his petitien that the transcript has not been in other particulars made in conformity with the rules of the Supreme Court.

Respondent returns, in answer to the order nisi that he copied into the transcript all the pleadings and documents filed, proceedings had and evidence adduced on the trial of the case, and that in the absence of any instructions from the relator or his counsel to omit any of them it was his duty to copy them all; that he has charged costs at the rate authorized by Statute 203 of 1898, which repeals all former statutes relating to costs.

We take up the questions for decision in their inverse order.

There was a slight oversight in matter of respondent’s interpretation of the rules of the Supreme Court.

He avers that it was his duty, in the absence of contrary instructions by the appellant or his attorney, to copy all papers and documents.

The position finds no support in the rules regarding transcripts.

Those rules direct, in the absence of special instructions from appellant, “ all ” ordinary process and returns thereon, such as citation, writs, mesne or executory, will be omitted from the transcript, and no one document is to be copied twice.

It is in.place to state that the clerk filed the transcript here properly in compliance with the order nisi of this court. He reserved all of his rights to be heard as if the transcript had not been filed.

As relates to the state of the transcript as it is how, we have found no ground for relator’s objection “that it is detached and separately bound.” It is now bound in volume form. We have read it and found it well enough prepared. It gives no cause of complaint. Documents copied twice, writs and citation and other papers cop - ied increase very little the bulk, and are not confusing, inserted as they are.

The question reduces itself on this point to a small amount for costs, which appellant and appellee can well adjust by reference to the rules of the Supreme Court.

Lastly, as relates to the claims for costs for inserting in the transcript a copy of the testimony of the witnesses as having been pre - pared by the clerk himself or by one of his deputies, and not by a shorthand reporter.

We infer that a court reporter was appointed, and took down the testimony, as we read in the transcript of appeal: “ W. H. Jack, Jr., was then sworn as court reporter in this case regularly.”

The issues as presented give direct support to our inference.

The question involved is whether the statute 104 of 1894 was repealed by statute 203 of 1898?

The former provides that the stenographer in reducing “ his notes to writing shall make a duplicate copy of the testimony without extra charge, the original of which, in case of appeal to the Supreme Court, shall be embodied in the transcript, while the duplicate copy shall remain in the record. The clerk, under the law of 1894, is noc allowed to charge for the testimony so embodied in the transcript.

The statute of 1898 only confirmed Sec. 5 of the law adopted in 1890, authorizing the appointment of shorthand reporters by the clerk himself or by the judge.

Respondent urges that Statute 203 of 1898 establishes a general fee bill, or bill of costs, regulating and fixing the fees and compensation allowed clerks.

The paragraph of the law of 1898 invoked reads:

, “For taking down testimony: For each one hundred words, ten cents.
“ For making transcript of record on appeal to the Supreme Court, for each one hundred words, fifteen cents.”

Respondent contends that the repealing clause of the statute of 1898, which reads, “ all other laws (not embraced in the act) on the same subject matter be and the same are hereby repealed,” is upon the same subject matter as Statute 3 of 1894, and therefore repeals it.

Strictly, is it upon the same subject matter? In one case the purview of the law was to fix the fees and compensation of the clerk, in the other to regulate and fix the fee of the shorthand reporter and save costs to litigants in cases appealable to the Supreme Court.

The latter, the shorthand reporter, is to act as reporter only upon the application of one of the parties, and the appointment is left to the discretion of the court, provided it does not interfere with the clerk’s appointment.

In case n.o reporter acts, it follows that the usual charge is to be made by the clerk.

In case he or his deputy acts as shorthand reporter, he is entitled to the fee allowed the shorthand reporter. As relates to the transcript, the two laws are not irreconcilable. We did not discover, upon examination, that the purview of the new law was to repeal the old law. In view of the repeal, this anomalous condition would arise; we have seen that under Sec. 5 of the law of 1890 (No. 28), the clerk is authorized to appoint a shorthand reporter, and whenever called on to act, the reporter’s fee would amount to the rate before mentioned, and in addition he would be entitled to his own fee, thus increasing the amount of cost for each one hundred words to forty-five cents, which, in our judgment, never was intended by the law-making power.

As we read the statutes before us, the same subject matter refers to all clerks’ fee bills, and not to other particular statute, having in view the employment of shorthand reporters and the expedition of trials in the courts of justice.

The legislator acted upon the subject independently and separately, and embodied the intention in the particular law of 1894.

A subsequent statute, in general terms, treating the subject in a general manner as relates to the fee of an officer, does not repeal the particular statute. In other words, the purpose, as we understand the intention, was to make a change as related to the clerk, and not as to the reporter, to whom not the least reference is made.

It is clearly settled, the leaning of the court should be against the doctrine of repeal by implication or liberal construction. The two laws should stand, unless it be evident that the last repeals the particular law. If reason arises in support of each position, about equally good, the decision, in our view, should be against declaring a law repealed. We would not, upon light grounds, change a system of reporting, established by legislation and to which all are now accustomed.

If we should decide that the law, as relates to the compensation of shorthand reporters, was repealed, the law itself authorizing the employment would lose its vitality.

For reasons assigned, it is ordered, adjudged and decreed that respondent deliver the transcript of appeal in this case to the relator, after the latter will have paid him the amount due, in accordance with the views before expressed, and that to that extent the rule nisi is affirmed, and the mandamus is made peremptory.

Nicholls, O. J., absent.


author: Miller, J.

text:
    No. 12,867.
    State ex rel. Anselm B. Murray vs. Hon. Felix Voorhies, Judge of the Nineteenth Judicial District Court for the Parish of Iberia.
    The provision in Art. 117 of the Constitution that the District Court shall hold continuous sessioiis of ten months, the Judge sitting alternately in each parish of the district as the public interest may require, is operative of its own force without legislation.

      QN APPLICATION for a Writ of Mandamus.

      Walter J. Burke & Bro. and Weeks & Weeks for Relator.
    Respondent Judge pro se.

    Submitted on briefs June 18, 1898.
    Opinion handed down June 24, 1898.
   The opinion of the court was delivered by

Miller, J.

The relator, alleging himself to be the plaintiff in a suit pending in the Nineteeth Judicial District Court for the parish of Iberia, applies for the writ of mandamus to compel compliance by the judge of that court with the requirement the relator conceives is imposed by the 117th Article of the Constitution of the State, that District Courts shall hold continuous sessions during ten months of the year; and in districts embracing more than one parish, the judge shall sit in each parish alternately as public business may require.

The petition avers the pendency of the relator’s suit, and, omitting other allegations unnecessary for the determination of the question presented, averithat the judge is not engaged in holding court in the parish of St Martin, constituting, with Iberia, the Nineteenth Judicial District; that relator is desirous of the trial of his case; that there are over one hundred cases untried in Iberia; that under the Constitution, the sessions of the District' Courts are required to be continuous; that the respondent judge has been requested to hold sessions in Iberia, but the judge declines to do so, on the ground that Art. 117 of the Constitution is inoperative unless carried into effect by legislation, and the relator claims the writ of mandamus to compel the judge to hold court continuously in the parish of Iberia for ten months of the year, when not sitting in St. Martin. The answer of the respondent judge denies the power of this court to issue the mandamus to compel trial of a suit not susceptible of being brought to this court, because the amount involved is under two thousand dollars; denies that any application has been made for the trial of the suit; avers at the last term it was continued on the motion of relator’s counsel, and that his petition shows no denial of justice to authorize the writ. The answer further sets forth that the intervention of the defendants in the pending suit of plaintiff, joining the relator in his present demand, is a departure from settled practice; that if this court should be of opinion it has jurisdiction to issue the writ on the showing made by the petition, the respondent denies that any application was ever made to him to hold court in Iberia under Article 117 of the Constitution prior to the notice accompanying the answer dated June 10, 1898, notifying the respondent judge of the purpose of the attorneys for plaintiff andi defendant in the pending suit of Murray vs. Upton et ais. to make the application to this court; the answer proceeds to aver substantially that since 1892, in pursuance of the rules of court adopted by direction of the Constitution of 1879, he has held the full number of terms in the parish of Iberia.to which it was entitled; that the last term in the parish of Iberia closed on the 14th of May; thereupon respond - ent began the term in St. Martin, and adjourned sine die on the 7th June, the bar of St. Martin coinciding with respondent in the opinion that legislative action was requisite for the continuous sessions, provided for in Art. 117 of the Constitution, and requesting the adjournment, and the answer insisting that Art. 117 can not be put in force without legislative authority, refers to the Governor’s message as confirming that view, denies that until that legislation respondent can be required to hold the sessions contemplated by Art. 117 of the Constitution, and claims that the article of the Constitution gives respondent discretion as to holding court not within the control of the writ of mandamus.

The Constitution vests in this court the control and supervision of all inferior courts to be exerted by writs of mandamus, certiorari, prohibition or other remedial writs. Art 94. This jurisdiction is given without qualification, and manifestly extends in a case like this to compel a session to try appealable as well as unappealable cases. The mandate of the organic law that the District Court of the State shall hold continuous sessions is one of importance to all litigants, and is in the public interest. If the mandate is not obeyed we can see no basis to deny the resort to that compulsive power conferred on this court, and which affords, in our view, the only relief, if the constitutional mandate under consideration is denied execution by the inferior court to which it is addressed. The control and supervision which this court must exert under the plain terms of the Oonstitution over all inferior courts leaves, in our opinion, no doubt of our power to issue the writ of mandamus if the basis exists asserted by the relator, nor can we perceive the .ground on which we can deny to the relator an interest as a litigant to demand the relief he seeks, in effect that the court shall be held in that mode the Oonstitution prescribes for the dispatch of the public business.

The District Courts, as now constituted, remain undisturbed until 'the organization of, the District Courts provided by the Oonstitution. Art. 118. Under the system in force, up to the adoption of the Constitution, the requirement was that in judicial districts of more than >one parish there shall be four annual terms of court in each parish fixed by law or the rules of court. Oonstitution 1879, Art. 117, Act No. 70 of 1880, No. 22 of 1892. If the business before the court of one of the parishes is limited an adjournment soon followed, and the interregnum before the term in the other parish begins was lost, to the detriment of suitors anxious for the speedy trial of their case. To guard against this evil and to secure the prompt administration of justice, the present Constitutionintroduced the requirement of continuous session of the district courts, the session to be for ten months of the year, the judge to sit in each parish alternately as the public business may require. The constitutional article contains other provisions not pertinent to this controversy, and closes with the explicit ■direction that the article shall take effect from and after the adoption ■of the Oonstitution. If we correctly appreciate the position of the respondent it is, that until legislation he supposes to be requisite, there can be no terms of the District Courts, hence the adjournment sine die of the District Court of St. Martin. It would require the clearest language to authorize the conclusion that the convention intended that - interruption of the public business claimed by the argument as flowing from the organic law. •The obvious import is continuous sessions of the District Oourt during ten months, the judge to sit alternately in each parish as the public business shall require. The old system of fixing terms was superseded by the one continuous term of ten months. It ‘is claimed the beginning of the term is not fixed, nor where it commences, nor is the two months of vacation designated. This, in our view, does not lessen the force of the constitutional mandate that the article shall take effect from, the adoption of the Oonstitntion. Of its own force the Oonstitution acted on the District Oourt, and modified their sessions to conform to the organic law. The court being in session when the Constitution went into effect, the organic law made, or should have made, the session continuous, the judge-sitting alternately in each parish, subject to the right of the court to-fix its two months of vacation, at the end of which the new term begins. It could hardly be expected the change from the old to the new Constitution could occur without some question arising of the-character presented, and it appears that the opinion of the bar of-St. Martin coincides with that of the respondent judge, who has furnished us an elaborate argument in support of his position. Our-examination leads us to the conclusion that supplying by necessary-implication that which the Constitution intends solves the difficulty supposed to arise in giving immediate effect to the constitutional provision in question directing that immediate effect. The Nineteenth Judicial District Oourt adjourned in the parish of St. Martin in June; the continuation of the session in Iberiais, in our opinion, required by this article of the Constitution.

It is therefore ordered and decreed that the writ. of mandamus herein applied for issue to the judge of the Nineteenth Judicial District Court, commanding him to hold court in the parish of Iberia, thereafter in the parish of St. Martin, and alternately in each parish as the public interest may require, the session of the courts for-both parishes to be continuous, with the right of the judge to designate two months for his vacation, as required by Art. 117 of the Oonstitution.


text:
    No. 12,882.
    State of Louisiana vs. Num Harris.
    To review a decision on appeal in a criminal case, a case must be so brought belore the Court by bill of exceptions as to disclose the error, unless the error is patent.
    There was no bill of exceptions and no error patent on the face of the papers.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney Genera!, and B. H. Marr, District Attorney, for Plaintiff, Appellee.

      John Q. Flynn for Defendant, Appellant. »
    Submitted on briefs May 7, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Breaux, J.

An information was filed against Num Harris on the 17th day of March, 1898, charging him with having feloniously committed an assault by wilfully shooting at F. Fourio.

The jury found him “ guilty ” as charged.

A motion for a new trial was made by the accused. It was overruled by the court.

The accused was then sentenced to service in the State penitentiary for two years, and to pay the cost of prosecution.

No bill of exceptions was taken during the trial; there is here ño assignment of errors and defect patent on the face of the record.

Although there was no assignment of errors we have ex industria read and given due consideration to the point argued here in the brief filed in behalf of the accused.

Defendant through counsel contended that the information was faulty, and did not sufficiently set forth the crime charged.

The crime was charged in the language of the law.

This court has in repeated decisions held that an information, or 'indictment for an offence denounced by statute should be charged in the words of the statute.

There are no questions of law before us which would justify us in granting relief to the accused.

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


author: Blanchard, J.

text:
    No. 12,739.
    State of Louisiana vs. John Reed.
    Evidence showing that deceased and the accused lived alternately in concubinage with the same woman in whose presence the hilling occurred; was received over objection o£ defendant that same was irrelevant. Held: Competent for prosecution to prove a motive for the crime.
    The fact that a witness for the State was once himself under suspicion, and oven arrest, in connection with the homicide, is no ground for the exclusion of his testimony. Even though an accompliee, he would still be competent as a witness, that fact affecting the credibility, notthe admissibility, of his evidence.

      The charge of the trial judge, or portions thereof deemed prejudicial, should he objected to at the time given, or before the jury retires for deliberation, and a bill of exceptions seasonably reserved. If this be not done, subsequent objections will not be noticed, except in the clearest instances of gross and palpable error patent upon the face of a written charge coming up in the record, and of undoubted prejudice to the accused.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

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

      Edward, Simon for Defendant, Appellant.
    Argued and-submitted April 9, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused November 7, 1898
   The opinion of the court was delivered by

Blanchard, J.

Twice, under this indictment for murder, has the accused been convicted, and twice has the death penalty been passed upon him.

In the 49th La. An. 704, will be found the report of the appeal on the first trial. On an erroneous ruling of the trial judge, there explained, the verdict and sentence was set aside and the case remanded.

A second trial below resulted in a similar verdict and sentence, and the case is again before us on appeal.

The grounds upon which reversal is now asked are embodied in four bills of exception.

The first relates to evidence offered on part of the prosecution to prove that the accused and the deceased lived alternately in concubinage with a certain woman, who, it had already been shown, was present at the quarrel between the two men immediately preceding the homicide, as well as when the homicide occurred. This was objected to by defendant on the ground that it had no bearing on the case and was irrelevant. To an adverse ruling the accused excepted. The court’s reason for admitting the testimony was that it was competent for the State to prove a motive for the crime. And so it was. State vs. Crowley and Others, 33 La. An. 782.

The second bill records the objection of the accused to the testimony of one Francis Frank, offered by the State to prove that Jacques Comeau, the deceased, met his death at the hands of the defendant.

The demand for the exclusion of his testimony rested on the allegation that at one time this witness was charged with being an accomplice in the crime for which the accused was on trial, and had been arrested and held in custody as such.

The trial judge admitted the testimony, assigning reasons: (1) There was no evidence before the court that the witness was an accomplice or had been held in custody as such; (2) that if he were an accomplice, he was not' charged as such, nor was he under any charge, nor on trial on any plea of complicity in the murder of Comeau; (3) that even as an accomplice, if such hé be, he would still be competent as a witness, that fact going to the effect of the testimony (the credibility of the witness) rather than to its admissibility.

This ruling was not erroneous.

, Act 29 of 1886; State vs. Mack, 41 La. An. 1079; State vs. McManus, 42 La. An. 1194; State vs. Ashbury, et al., 49 La. An. 1741.

It seems that when Comeau was found dead and the belief was entertained that he had been murdered, the sheriff arrested several parties, one of them the witness Frank, on suspicion of complicity, and held them a few days in custody.

Investigation appearing to fasten the homicide upon the accused, he was held to answer the crime charged, and the other parties discharged.

Subsequently no action was taken against any of the parties originally under suspicion, save the accused and one Anais Parks, his paramour, who were jointly indicted for the murder. The witness, Frank, was not indicted, nor even formally charged as being a principal, or accessory before or after the fact.' Under these circumstances it can not be said he was an accomplice, but even had he been he would have been competent to testify. Besides, the trial .judge charged the jury, as requested by counsel for theaceused, that if they believed this witness was an accomplice they should not, in a case of this magnitude, convict solely on his testimony; that there should be corroboration aliunde.

Following conviction, a motion for new trial on behalf of the accused was filed, grounded upon the allegation of insufficiency of the testimony to warrant the verdict.

The ruling of the court a qua denying the same forms the subject of the third bill of exception.

The question of sufficiency or insufficiency of evidence to convict is one over which this court has no jurisdiction. This is fundamental, and has been affirmed so often in repeated adjudications ■that it has become unnecessary to cite the cases.

The jury, in a criminaf cause, are the judges of the evidence and it is their province to decide whether, or not, the testimony submitted is sufficient, or strong enough to convict. Having decided that it is, and having returned a verdict of conviction, it rests within the sound discretion of the trial judge to grant, or not, a new trial. And when, as in this instance, he refuses it, we will not disturb such ruling unless it is made manifest he has abused the discretion vested in him by law.

The fourth and last bill of exceptions challenges the correctness of the ruling denying defendant’s motion in arrest of judgment. Three grounds are set forth:

1. That the trial took place on the 13th of January»; that counsel for accused requested the charge of the court to the jury to be reduced to writing; that this was assented to; that no written charge was filed on January 13; and that a paper or document, purporting to be the charge in writing delivered to the jury, was filed only on 'January 15, two days subsequent to the trial.

2. That illegal matter is’contained in the charge filed, to-wit: that it assumes the killing of Oomeau by the accused.

3. That the endorsement of the verdict “ Guilty as charged ” on the indictment was of no specific date.

As to the first ground, the trial judge, in his opinion giving reasons for denying the motion in arrest, states that when the demand for a written charge was made, he had the charge intended to be delivered already prepared, and the same had been transcribed into a bound copy book; that he so informed counsel for accused, exhibited the charge to him, and asked if he would agree that it be read to the jury from the copy book, with the understanding that a copy thereof should be made and filed; and that counsel assented to this arrangement and it was carried out, an exact copy being furnished and filed two days later. It is not necessary to add anything to this recital of facts. It disposes of this objection.

As to the second ground, that the judge assumed as proven the killing of Oomeau by the accused, it is based on this statement found in the charge: “Deliberate malice is manifested by external circumstances. Thus the killing of Oomeau is an external circumstance, from which you shall infer whether it was done with or without malice prepense.”

It is urged this is tantamount to saying that the accused had killed Oomeau, and that since one of the questions arising in the case and presented to the jury was whether Oomeau was killed or not by a passing train (his body having been found on or alongside of a railway track), it was prejudicial error.

Thestatementchallengedundoubtedlyasswmesthekillingof Oomeau. . More than that, it implies that he was killed by the accused.

It is error on both grounds. It was for the jury to And as a fact that Oomeau was killed; it was not for the judge to assume he was killed. It was for the jury to And as a further fact that the killing was by the accused; it was not for the judge to use language which plainly implied he thought or believed the accused did the killing. The theory of-the defence was that Oomeau was killed by the railway train.

However improbable or unfounded in fact such theory may have been thought to be by the trial judge, he should have been careful not to use language tending to weaken on the minds of the jury whatever impression in regard to same and favoring it, the evidence may have made. If the killing had been by the train, while this was an “external circumstance,” it was not one from which the inference of malice could be drawn as against the accused, who alone was on trial. And when the judge referred to the killing of Oomeau as an external circumstance from which the jury should infer “ whether it was done with or without malice prepense,” it had the direct tendency to withdraw from the attention of the jury the theory of the possible killing by the railway train. If the killing had been by the train, the question of malice could hot arise as an issue to be determined in the case.

On this ground the accused is entitled to relief.

It is, therefore, ordered, adjudged and decreed that the verdict and sentence appealed from be annulled, avoided and reversed, and that the case be remanded to be proceeded with according to law.


author: Breaux, J., Blanchard, J.

text:
    No. 12,899.
    State of Louisiana ex. rel. P. M. Kenner vs. Emile Rost, Judge.
    The petition for an injunction did. not set forth the facts needful to show that relator was entitled to an injunction, and therefore mandamus did not issue to compel the District Judge to grant the writ of injunction for which the relator applied.
    The relator was a party to a suit to authorize his wife, and in effect testified in the suit that he had no claim on the property.
    After judgment he was without right to an injunction to prevent the execution of the judgment in which it was decided contradictorily with him that the one in whose favor the judgment was pronounced had the right of possession.
    QN APPLICATION for Writs of Mandamus and Prohibition.

      Uiddleston Kenner for Relator.

      Robert D. Dugué and Farrar, Jonas, Kruttschnitt & Gurley for Respondent.
    Submitted on briefs, at Chambers, July 23, 1898.
    Opinion handed down, at Chambers, August 2, 1898.
    Rehearing refused, at Chambers, reasons assigned, August 17,1898.
   The opinion of the court was delivered by

Breaux, J.,

Relator applied for writs of mandamus and prohibition, whereby he seeks to compel the District Judge to grant him a writ of injunction.

He alleged before the' District Court, in his petition for an injunction, that certain named persons are threatening to disturb him in and evict him from a dwelling house and premises in the execution of a judgment in a suit entitled Jos. Weill et al. vs. Emile Richaud et al.

He avers that he was not a party to the suit and was not named in the judgment.

That he is in possession "of the house and premises ftom a date anterior to the contemplated eviction of more than one year.

The respondent judge, as relates to the facts, sets forth that the dwelling house and premises form part of a plantation sold by the wife of relator to purchasers named by him; that the relator was at the time separate in property from his wife. That the vendor reserved the right of remaining on the property, free, to the thirty-first day of December, 1.894.

That Riehaud claimed to hold under a lease from her, made after the 81st of December, 1894.

That suit was brought by the purchasers against the asserted lessee, and against the heirs of the wife (she being dead when the suit was brought for the ownership and possession of the place).

It appears that citation was served on the husband, who was a party to the sale.

That he filed an exception, which was overruled. Afterward he pleaded a general denial as an answer; he denied that he was ah heir of his late wife; he averred that her succession was not completely represented, that.she had children who had not been made parties, and that the property was in possession of tenants, not parties to the suit.

That he did not claim as owner or that he was in possession.

That during the trial he in substance admitted that he had never owned the property.

The respondent annexed to his return a copy of the act of sale, which was offered in evidence in' the case, showing that, as stated by him, the late Mrs. Kenner sold the property to Weill; that she was authorized by her husband, who now claims possession, to sell to Joseph Weill & Bros.

There was a judgment pronounced in the case against Emile Riehaud, tenant, and the four surviving children and legal heirs of Mrs. Devia Ella Kenner, decreeing that the purchasers (plaintiffs in the suit) were entitled to the possession and ownership of the property.

It thus appears that relator was a party to the sale made by his late wife to Weill & Bros., and that he authorized her to sell the very property of which he now claims possession.

• That he was one of the defendants in the suit brought, and in which judgment was pronounced, as just stated.

A question of possession and no question of title was at issue. In the suit the relator did not claim title or possession, but in substance disclaimed both.

In the case now before us for mandamus and prohibition, relator does not allege that he was in possession as owner or under any other right entitling him to possession.

The petition for an injunction does not set forth any of the facts required by Art. 49 of the Code of Practice: “Possession as an owner; the right to usufruct, or the use of thq property or real right of any kind.”

The relator was concluded by the judgment pronounced against his late wife from asserting any right of possession in himself in the manner called for by the article just cited.

Where it is manifest, as in this case, that the one applying for an injunction has no right to an injunction, the court can refuse to issue the writ.

Where it appears on the face of the application, or of the papers forming part of the application, or inseparably connected with the issues, that there is not the least ground for an injunction, the refusal to grant it is within the court’s discretion.

The regularity of the proceedings to which the relator was, as we have heretofore stated, a party, is not questioned, and the truth of the averments made in that case are" not denied.

How can the relator stand in judgment for a possession of property of which his wife was divested contradictorily with him, and in a case in which he in addition testified in effect that he had no right?

One seeking an injunction must show a clear or equitable right.

When no necessity is shown for the injunction as a means of protecting a right it should not issue.

Relator has not asserted a right which is not absolutely shown groundless.

We are constrained to decline to make the writ peremptory.

It is ordered, adjudged and decreed that the writ of mandamus applied for in this case is refused, and the rule nisi heretofore issued is discharged.

On Application por Rehearing.

Blanchard, J.

A careful review of this case confirms the conclusion announced in our opinion in chief, that the application for injunction was groundless, and, therefore, properly refused by the judge a quo.

Mandamus will not lie to compel the granting of the writ of injunction where it appears that the applicant therefor is without standing to invoke the same.

Rehearing refused.

Justices Breaux and Miller concur in refusing the rehearing.