author: Monroe, J. Blanchard, J.

text:
    No. 13,240.
    E. A. Cassard vs. Wm. E. Tracy; E. A. Cassard vs. F. C. Zacharie (Consolidated).
    Syllabus.
    3. Laws, whether constitutional or statutory, should be construed to operate prospectively only, unless the words employed show a clear intention that they should have a retrospective effect.
    2. Legal enactments regulating procedure are generally applicable to pending cases, and may, not unfrequently, operate retrospectively; but, the line must be drawn in any case in which, under the form of modifying the remedy, or 5 regulating the procedure, substantial rights, legally acquired, are impaired, or divested.
    3. Judgments of trial courts, by the law oC this State, when once rendered, and made final, as far as they can be so made by the action of such courts, become the property of those in whose favor they are given.
    4. The provisions of the Constitution of 1808 establishing, and conferring jurisdiction upon the courts of appeal, upon questions of fact as well as upon questions of law, in certain cases, were not intended to operate retrospectively so as to set aside, or require said courts to set aside judgments previously rendered, and which become the property of those in whose favor they were given.
    Ok Rehearing.
    1. The moment the Constitution of 1898 went into effect appeals then pending in the Court of Appeals became entitled to consideration, not from the point of view of the jurisdiction conferred upon the court by the Constitution of 1S79, but from the point of view of the jurisdiction conferred upon the court .by the Constitution of 1898.
    2. Under the Constitution of 1879 appeals to the Court of Appeals for the Parish of Orleans in cases involving less than five hundred dollars were upon questions of law alone; under the Constitution of 1898 the court has jurisdiction in all cases both of the law and the facts.
    3. Where an appeal in a case for less than $500 was pending in the Court of Appeals for the Parish of Orleans when the Constitution of 1898 went into effect, but the evidence upon which it was tried in the. District Court had not been taken down in writing, and no statement of facts could be agreed upon, it became the duty of the Court of Appeals to remand the case in order that on a second trial the testimony might be reduced to writing and, thus, in case of a second appeal, the court would be in a position to discharge its constitutional duty of adjudging the facts as well as the law of the case.
    IN BE. Wm. E. Tracy and E. O. Zacharie applying for certiorari or writ of review to the Court of Appeal, Parish of Orleans, State of Louisiana.

      Francis G. Zacharie for Relator.

      Albert Voorhies for Respondents.
   The opinion of the court was delivered by Monroe, J.

On rehearing- by Blanchard, J.

Statement op the Case.

Monroe, J.

It appears from the record that E. A. Cassard brought suits against relators, upon paving contracts, for sums exceeding $100, but not exceeding, in the aggregate, $500; that the suits were consolidated, by consent, and tried together in Division “D,” of the Civil District Court, before the adoption of the present Constitution, and that there was judgment against Tracey for $56, and against Zacharie for $155. Under the Constitution then in force the cases were ap-pealable upon questions of law alone, which were required to be taken up by means of bills of exception, or assignments of error, accompanied by statements of fact, agreed on, or prepared by the trial judge. The defendants, however (relators here), reserved no bills of exception; nor did they agree upon, or obtain from the trial judge, any statements of fact. When the judgment was rendered against them, they moved for a new trial, but alleged no other grounds than that the judgment was contrary to law and the evidence and that they were aggrieved thereby; and the new trial was refused. A suspensive appeal was then taken, and after lodging the record in the appellate court, an assignment of error was filed, setting forth that the judge a quo had given judgment on quantum meruit, when, as appellants alleged, he ought either to have given judgment on the contracts sued on, or else have rejected plaintiff’s demands. The cases were fixed for trial May 30th, 1898, eighteen days after the new Constitution went into effect; and, upon that day, appellants filed a motion to remand them to the trial court, for reasons, the substance of which will appear from the following excerpts from the opinion of the Court of Appeal, to-wit:

“A motion to remand is made on two grounds:

“1st. — That there is no evidence in the record, the testimony in the “lower court not having been taken down in writing; and that there “ is no statement of facts in the record, for the reason that opposing counsel could not agree upon the same, and the trial judge declined “to make "the same, although applied to therefor, for the reason, “ assigned by his Honor, that he could not recall to memory the facts “ testified to.

“It is sufficient answer to this to say that the record does not dis- “ close that any application was ever made, to court or counsel, for a “ statement of facts, and that we may not, properly, look beyond the “record. We may add, however, that the proper course would have “ been to invoke, at the time, supervision of the action of the distriot “ judge, by writs in aid of our appellate jurisdiction.

“2nd. — That, under the new Constitution, the right is vested in “ defendants and appellants to have a trial, hearing and judgment on “ this appeal, and in this cause, both on the merits of the law and the “ facts.

“We have repeatedly ruled adversely to that contention, and our “ ruling has been sustained by the Supreme Court on a writ of review “ in the case of Rosetta Gravel, Paving and Improvement Co. vs. “ Mary-Louise Kennedy, recently decided. * * * Motion denied.”

The court then proceeded to decide the cases upon their merits, and affirmed the judgment appealed from. An application for rehearing was made and refused, and the appellants then made, to this court, the application, which we are now considering, for the review of the judgment of the Court of Appeal upon the motion to remand; and, in support of said application, they urge that the provisions of the present Constitution, conferring jurisdiction on said court, apply to their, cases and entitle them to a hearing, etc., on the facts, and that, in order to obtain the same, it is necessary that said cases be remanded to, and retried in, the lower court.

OPINION.

The relators proposition is, in effect, that the provisions of the present Constitution, which became operative May 12th, 1898, shall be so construed as to deprive Cassard, and relieve them, of the judgment which had been rendered by the District Court against them on March 22nd, 1898.

The question which first suggests itself is; whether the constitutional provisions invoked by relators are properly susceptible of the construction suggested? It is plain that the effect of this construction will be to give to those provisions a retroactive operation, and to ■undo something which had been, lawfully, done before^ they were brought into existence. The judgment obtained by Cassard, in the District Court, had been so obtained agreeably to the then existing law, constitutional and statutory. At that time, and under that law, he might have been deprived of it, by the action of the appellate court exercising the legal discretion vested in it; by an adverse judgment in an action to annul, founded upon pre-existing causes, specified by law, or by allowing said judgment to become prescribed. These conditions were as though written into the title by which he acquired, but they were the only conditions by which it was affected. Otherwise, and by the textual provisions of our law, the judgment was his property by an indefeasible title. Our Code of Practice, Article 548, reads: “A judgment, when once rendered, becomes the property of “ him in whose favor it has been given, and the judge can not alter the “ same except in the mode provided by law.”

After the judgment was signed, the judge, by whom it was rendered, was powerless to alter it, save through an action of nullity and for preexisting, specified, causes. When the appeal was perfected, he was ousted of jurisdiction except for certain limited purposes: and jurisdiction of the case was vested in the appellate court. Tn the exercise of that jurisdiction it was competent for the appellate court to have amended or reversed it, or if, in the exercise of a sound legal discretion, that court had reached the conclusion that the interests of justice would be best subserved thereby, it might have set the'judgment aside and have remanded the case to be tried de novo. But no authority was vested in any other department of the government either to set the judgment aside or to control the discretion vested in the appellate court in the premises, or in any manner, without due process of law, to deprive Cassard of his property.

If the convention which, after his acquisition of said judgment, adopted, the present Constitution, could, by conferring jurisdiction upon a court created by it, impose upon such court the obligation to annul or destroy said judgment, it would seem to follow that it' might have annulled or destroyed it by direct action, or by a general provision couched in some such language as the following, to-wit; “All judgments heretofore rendered by any of the courts of this State, and which are pending on, or subject to, appeal are hereby annulled and set aside and the causes in which they were rendered shall be tried de novo: And, if it was competent to have annulled such judgments in. order that tire causes should be tried again in another way, it is difficult to perceive why, as a question of principle, they might not have been thus annulled for any other reason, or for no reason at all; the answer to all objections being that such action would merely affect the remedy. Nor would the situation, so far as the present cases are concerned, be, in any wise, altered, if the defendants had taken a devolutive appeal, twelve months, less a day, after the rendition of the judgment, instead of a suspensive appeal; or had taken no ¡appeal at all, for, if the argument relied on be sound, it would, in either event, be the duty of the trial, or appellate, court, as the case might bo, to set aside the judgment in order to meet the new conditions.

It is evident that such retroactive operation is likely to work injustice and hardship. Those who had gained their causes before the enactments in question went into effect were subjected to the usual trouble, delay and expense of one trial; and the setting aside of their judgments, in order to meet conditions subsequently created, will subject them to further trouble, further delay, and further expense, and will give their opponents, who have lost, an unfair advantage, since the latter may demand new trials when they find it to their interest, for purposes of delay or otherwise, to do so, whilst those who have already gained their cases, can have nothing better to hope for, and may lose upon a second trial, by reason of the failure of their witnesses or other untoward circumstances, all that they had gained upon the first. In addition to which, if the cases are, like the present, on appeal, the unfortunate appellees may be made liable for the costs of appeal, though the judgments appealed from were correct when rendered.

It is in view of consequences such as these that all writers upon the construction of law concur in the opinion that, whether constitutional or statutory,' it should be construed to operate prospectively only, unless such construction is absolutely precluded by the language used. Judge Cooley says:

“We shall venture also to express the opinion that a Constitution “ should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. This is “ the rule in regard to statutes, and it is one of such obvious conven- “ ience and justice that it must always be adhered to in the construe- “ tion of statutes, unless there be something on the face of the enact- “ ment putting it beyond doubt that the Legislature meant it to oper- ate retrospectively. Retrospective legislation, except when designed “ to cure formal defects, or otherwise operate' remedially, is com- “ monly objectionable in principle and apt to result in injustice, and “ it is a sound rule of construction which refuses, lightly, to imply an “ intent to enact it. And we are aware of no reasons applicable to “ ordinary legislation which do not, upon this point, apply equally “ well to Constitutions.”

Oooley on Constitutional Limitations, 62.

Mr. Sedwick repeats, again and again, that “the judiciary will give all laws a prospective operation only, unless their language is so clear as not to be susceptible of any other construction.” Sedwick on the Construction of Constitutional and Statutory Law, 172. .. Mr. Black, in a recent work, says: “A constitutional' provision should not be “ construed with a retrospective operation, unless that is the unmis- “ takable intention of the words used, or the • obvious design of the “ authors.” Black on Interpretation of Law, 20.

From Mr. Sutherland we take the following:

“Retrospective Law. — Such statutes, when not forbidden by the

“ Constitution, may be valid, but there is always a strong leaning “ against giving them a retrospective operation, and this proceeds “ from the presumption that the Legislature does not intend what is “unjust. 'Those whose duty it is,’ says Erie, J., 'to administer the “ law, very properly guard against giving- to an act of parliament a “ retrospective operation, unless the intention of the Legislature, that “it should be so construed, is expressed in clear, plain and unam- “ biguous language.’ Such laws are looked .upon with general dis- “ favor. In Dash vs. Van Kleeek (2 Johns, 506), Kent, J., said 'There “has not been, perhaps, a distinguished jurist or elementary writer “ within the last two centuries, who has had occasion to take notice of “ retrospective laws, either civil or criminal, but has mentioned them “ with caution, distrust or disapprobation.”

Sutherland on Statutory Construction, 406.

“If, before a final decision, a new law as to procedure is enacted and “ goes into effect, it must, from that time, govern and regulate the “proceedings. But the steps already taken, the status of the case, as “ to the court in which it was commenced, the pleadings put in, and “ all things done under the late law, will stand, unless ail intention to “the contrary is plainly manifested; and pending cases are only “ affected by general words as to future proceedings from the point “ reached when the new law intervened.”

Ib., 482 (citing- authorities).

It must be presumed that the members of the convention which adopted the Constitution of 1898 were familiar with these commonly accepted canons of construction, and that when they intended any particular provision, incorporated in that instrument, to operate retrospectively they formulated it in such language as to leave no room for doubt. Coming, then, to the provisions which are here invoked, it may be remarked that, under the late Constitution, there was a Court of Appeals for the Parish of Orleans which had appellate jurisdiction, on questions of law alone, in cases where the amount in dispute, or fund to be distributed, exceeded $100, and was less than $500, and upon both law and facts where the amount in dispute, or fund to be distributed, exceeded $500, and was less than $2,000, and that the change made by the present Constitution (in so far as concerns the matter at issue) was to confer upon the court which was created as the successor of the one mentioned, jurisdiction as to facts, as well as law, in cases where the amount in dispute:, or fund, etc., exceeds $100, and is less than $500.

Counsel for ^relators refer to the following, as the provisions in the new Constitution upon which he relies:

“Art. 181. — There shall be a court of appeal to be known and desig- “ nated as the ‘Court of Appeal for the Parish of Orleans.’

“Art. 8%5. — * * * Seventh. — The Supreme Court, Court of “ Appeal and District Courts, provided for by this Constitution, are “ declared to be, aud shall be construed to be, the same courts as those “ of the same name created by the Constitution of 1879, and all writs, “ orders and process issued from said courts, which shall be pending, “ or in course of execution at the date when this Constitution goes “ into effect, together with all the records and archives of said courts, “shall at once, and by virtue of this article, be transferred to, and “held to be cas.es pending in, and writs, orders and process issued “from, and in course of execution under the authority of, and “ records and archives of, said courts, respectively, as organized .under “ this Constitution.”

“Art. 98. — The Courts of Appeal, except as otherwise provided for “in this Constitution, shall have appellate jurisdiction only, which “shall extend to all eases, civil and probate, when the matter in dis- “ pute, or the funds to be distributed shall exceed one hundred dollars “ exclusive of interest, and shall not exceed two thousand dollars ex- “ elusive of interest.”

“Art. 103.- — All cases on appeal to the Court of Appeal shall be tried “ on the original record, pleadings, and evidence.”

It can not be said of the language of these articles, that it so clearly expresses the intention that they shall operate retrospectively as to be susceptible of no other construction. Upon the contrary, there is not an affirmative eximession, or a word having an affirmative signification, which even remotely indicates such intention. That meaning can be arrived at only by a process of ratiocination; the argument being, somewhat, as follows: “The cases now under consideration were pending in the Court of Appeals before the adoption of the present Constitution; that court had, however, jurisdiction only as to the law; by the operation of the new Oonstitution they became cases pending in the present Court of Appeal, upon which court the obligation is imposed to exercise jurisdiction as to the facts as well as the law; but the jurisdiction as to the facts can not be exercised in the present condition of the cases, for the reason that the facts are not disclosed in the record, hence, the judgment rendered in said eases, by the District Court, before the adoption of the present Oonstitution, must be set aside, and the cases must be remanded and tried de novo, and in such a manner as to enable the Court of Appeal to pass on the facts.” This amounts to saying: “We must give to these provisions the prospective operation contemplated by their framers, and, in order to do so, we must give them the retrospective operation for which the relators contend.”

If the relators’ cases were the only ones to which the provisions in question were intended, or could be held, to apply, there would be no answer to this argument, for, unless they were applied as suggested, they would be entirely without effect. But. the relators’ are not the only cases to be affected. .

Construing them to operate prospectively only, the enactments will affect all cases which, being within the limit as to amount, may hereafter be filed, as long as the Constitution remains unchanged; as also all eases filed before the adoption of the Constitution, but which were untried, in the District Court, at that time, and, with'respect to such cases, the law will bear equally and equitably upon all litigants and will work no hardship. The only other cases to which the new law, by giving it a retroactive effect, could be made to apply, are those whicn bad been, tried and decided, but which had not been appealed, before its adoption; and those which had been tried and decided, and which were pending- on appeal. Of this latter class it would be doing no violence to probability to assume that the larger proportion had been taken up on statements of fact agreed on by the opposing counsel, so that we have left, cases pending on appeal on statements of fact prepared by trial judges; cases pending on appeal where no statements of fact had been agreed on or obtained from the trial judges; and cases decided in the District Courts and not appealed when the Constitution was adopted; and to the last two classes, inconsiderable in number, by comparison, and exceptional as to status, the constitutional provision invoked can be applied, only by giving them a retroactive operation which will have the effect of undoing that which has been lawfully done, and of depriving citizens, by mere legislation, of that which our law declares to be property lawfully acquired.

It will be conceded, however, that the intention of the law maker can be properly arrived at only by construing the different provisions of the law together so that no one provision shall be entirely sacrificed in order to give an extreme, or, supposed, full, effect to another. Observing this rule, we find in Article 325 (the “Schedule”), to which relators’ counsel has referred us, a paragraph, not mentioned in the reference, which reads as follows:

“Second — All-writs, actions, causes of action, proceedings, prosecutions and rights of individuals or bodies' corporate and of -the State, when not inconsistent with this Constitution, shall continue as valid and in full force and effect.”

This seems to be ’a distant manifestation of solicitude for the preservation of existing conditions and existing rights, and a declaration that the Constitution is to operate as little disturbance of those conditions and rights as may be consistent with the enforcement of the instrument, as a whole. The “right of individuals * * * when not inconsistent” with the law, would have remained “valid and in full force and effect,’’-without any affirmative declaration on the subject. The declaration is, therefore, made, ex industria, as a rule of construction, applicable to the entire instrument, and, read in connection with the provisions which we have been considering, expresses the intention of the framers of-the Constitution in language just the reverse of that required to entitle those provisions to the retroactive operation claimed for them;

But the case is made still stronger bjr one of the articles to which we are especially referred by relators’ counsel, to-wit:

"Art 108. — Adi cases on appeal to the Court of Appeal shall be tried on the original record, pleadings and evidence.”

How can this article be applied in the cases now before us, or in any case which had been tried and decided before its adoption, and the “original * * * evidence” 'in which had not been preserved ?

The original record or pleadings in such cases may be obtained and used, but the original evidence, delivered orally, and not taken down, belongs to the past, and is beyond recall. The judge a quo, we are told by the relators’ counsel, is unable to remember it, and the opposing counsel were unable to agree upon it. We have no means of knowing that the witnesses who testified can now be found, and not even those witnesses, themselves, if found, could, with the best intentions, assure us that they would be able, upon a second trial, to give the same testimony as was given by them on the first. The original evidence, applying those words prospectively, from the date of the adoption of the Constitution, no doubt has been, and will be, taken down and preserved, in all cases subject to appeal on the law and the facts, and thereafter tried or to be tried; but, with respect to cases tried before the adoption of 'the Constitution, appealable only on questions of law, the original evidence, delivered orally, and not taken do,wn, is no longer within human reach, and, to construe the articles of the Constitution which confer jurisdiction on the Court of Appeal to mean that such cases shall be tried by that court upon such original evidence, would be to hold that the framers of the Constitution intended to require an 'impossibility, in order to work an injustice.

There are many irreconcilable decisions upon the general subject of retrospective legislation. Upon one branch of it, i. e., the proper application of the term ex post facto, even the convention which framed the Federal Constitution seems, for a while, to have labored under some misapprehension. Mr. Justice Miller, speaking as the organ of the Supreme Court of the United States, makes the following comment ;

“As the clause was first adopted the words "concerning contracts “ were not in it because it was supposed that the phrase ex post facto “ included laws concerning contracts as well as others. But it was ascertained, before the completion of the instrument, that this was a phrase which in English jurisprudence, had acquired a signification “ limited to criminal law, and the words 'or any law impairing the ob- “ ligations of contracts’ were added to give security to rights resting “ on contracts. 2 Bancroft I-Tist. of the Constitution, 218.”

Kring vs. Missouri, 107 U. S., 221.

Whilst, therefore, an ex post facto law is retroactive in the sense that it operates upon a subject not liable to it at the time the law was made, the term is uniformly and exclusively applied by the courts to penal and criminal legislation, and, so applied, is defined to be a law which, in relation to an offense or its consequences, alters the situation of the accused to his disadvantage. Generally speaking, the prohibition against ex post laws, does not, therefore, apply where the effect of the. enactment is to modify the rigor of the existing law. And, where there is involved merely a question of penalty in which the State alone is concerned, an enactment, abolishing such penalty, pending proceedings for its enforcement, is competent and leaves the court, upon which is imposed the obligation of rendering the final judgment without legal authority to impose such penalty. But, having jurisdiction of the, case, i. e., the right to declare' the law, the court must hold that the law does not authorize the penalty, although it may have authorized it when the proceedings were commenced and when, by the judgment appealed from, it was imposed. Such a case presents simply a question of the power of the sovereign by whom the penalty was imposed to remit it, or to repeal the law imposing it, at discretion, and does not involve the impairment of any obligations of the contracts of individuals or the divestiture of individual rights of property. This is the view which has been taken of laws authorizing imprisonment for debt. Calder vs. Ball, 3 Dallas, 386. Van Hoffman vs. Quincy, 4 Wall., 552. Sutherland on Statutory Construction, 478.

A different question arises when the law imposing the penalty also establishes a basis upon which individuals may be said to acquire rights with respect to its enforcement, as, for instance, where the law gives a proportion of the fine, to be recovered, to the informer, who brings a qui tarn action for the recovery. It has been held, in such cases, in England, that the rights of the plaintiff become vested by the bringing of the action, and that they would not be considered as affected by subseqitent legislation unless it was so declared in express terms. Couch, qui tam, vs. Jeffries, 4 Burr., 2460. And so, in New York, it'has been held, where an action was brought against a sheriff for a penalty for permitting the escape of a prisoner, and, pending the action, a law was passed to the effect that a return, or recaption, before suit should be a good defence, and it was' claimed that such law operated retrospectively, that it should not be so construed. Thompson,'!., as the organ of the court said:

“It may in'general be truly observed-of retrospective laws, of every “ descriplion, that they neither accord with sound legislation nor with “the fundamental principles of the social compact. Iiow unjust, “ then, the implication against the legislature that they intend a law “ to be of that description unless the most clear and unequivocal ex- “ pressions are adopted.” And these views. were concurred in by Judge Kent. Dash vs. Van Kleeck, 7 J. R., 477. Sedgwick on Construction, Etc., 167.

Mr. Sutherland states the general doctrine upon this point in the following language:

“If a penal statute is repealed pending an appeal and before the “ final action of the appellate court, it will prevent an affirmance of a “ conviction and the prosecution must be dismissed or the judgment “ reversed. A final judgment before repeal is not affected by it. The “ repeal operates as a pardon of all offenses against it, and a bar to “ any subsequent prosecution. * * *

“Where a statute imposes a'-penalty for an injurious act done to the “ rights of others, such penalty to be recovered by the party aggrieved; “ it is in the nature of a satisfaction to him, as well as a punishment “ to the offender. In such a case the plaintiff is said to have acquired “ a vested right to the penalty as soon as the offense is committed, and “ a general repeal of the statute after action accrued does not affect “that right.”

Sutherland on Statutory Construction, 166.

* -X- «• -x- « * ■ #

“When the statute to be construed will impair the obligations of a “ contract by having a retrospective operation attributed to it, such “ construction is inadmissible because it would bring the act in con- “ flict with the prohibition of the Constitution of the United States. “ More than this- — it has be.en held, and may be considered settled, “ that: “The remedy, for the enforcement of a contract, to which a “party is entitled under State statutes in force when the contract was “ made, can not be subsequently taken away by decisions of the State “ courts giving those statutes an erroneous construction any more “ than by subsequent legislation’. ”

JSutz vs. Muscatine, 8 Wall., 575.

Whether a judgment is to .be regarded as a contract is a question which has been differently determined in different jurisdictions. In so far as concerns the Constitution of the United States, it may be considered as having beeu definitely answered in the negative, since the Supreme Court of the United States have so decided.

Morley vs. Lake Shore & M. S. R. R., 146 U. S., 162.

In this State, it has been more than intimated that a judgment is ti be regarded as a contract, though not where it is the outcome of an action in damages for a tort.

In Scott vs. Duke, 3 La. Ann., 253, Mr. Justice Rost, as the organ of the court said: “The distinction between laws impairing the obli- “ gations of contracts, or of judgments which the law holds to be contracts, and laws modifying the remedy given by the legislature to “ enforce those obligations, was fully recognized by Judge Marshall in “the case of Sturges vs. Crowninshield”, etc.

But in State ex rel. Folsom Bros. vs. Mayer, Etc., 32 Ann., 709, where the question was distinctly presented, it was held that a judgment for damages for a tort could not, in any manner, be considered a contract, and this doctrine was approved by the Supreme Court of the United States, in the same case on writ of error. Louisiana vs. Mayor, Etc., 109 U. S., 285.

There seems to be no reason to doubt, however, that a judgment is to be considered as "property” within the meaning of the 14th amendment.

In the case last above cited Mr. Justice Bradley, in a concurring opinion, said: “But an ordinary judgment of damages for a tort, rend“ered against the person committing it, in favor of the person injured, stands upon a very different footing. Such a judgment is “ founded upon an absolute right, and is as much an article of prop- “ erty as anything else that a party owns, and the Legislature can no “more violate it without due process of law than it can any other “property. To abrogate the remedy for enforcing a judgment, and “ to give no other adequate remedy in its stead, is to deprive the own- “ er of his property within the meaning of the 14th amendment.”

Louisiana vs. Mayor, Etc., 109 U. S., 285.

In Gilman vs. Tucker, 128 N. Y., 190, it was said:

“We must bear in mind that a judgment has been rendered and that the rights flowing from it have passed beyond -the legislative puwer, either directly or indirectly, to reach or destroy.”

In Greenwood vs. Butler, 52 Kansas,. 424, it was said: “Speaking generally, it is the province of the Legislature to establish, within constitutional limits, the rules, not only of procedure, -but for the determination of rights by which the courts shall be governed. These rules must,- in the very nature of things, precede the action of the courts in the orderly determination-of ■ the rights of parties. Those interested in any controversy are given their day in court. At the appointed time the court hears their proofs, the presentation of the law fixing their rights, and thereupon proceeds to determine all questions, of fact and of law, presented. This determination is entered of record and becomes a final settlement and determination of the controversy. It hardly seems necessary to cite authorities to support the proposition that a final judgment, so entered, is not to be changed or set aside by the law making power. Our form of government does not contemplate an appeal from the judgments of the courts to the legislature, nor does it contemplate nor authorize, by a sweeping act of the legislature, a change in the force and effect of a great class of judgments already entered.”

See also Weaver vs. Lapsley, 43 Ala., 224; Merchants’ Bank of Danville vs. Ballow, 32 S. E., 481.

In McCabe vs. Emerson, 6 Har.; Penn. R., 111, it was claimed that a right of appeal had been granted by statute in a case in which judgment had been rendered under a law which allowed no appeal.

Mr. Justice Rogers, as the .organ of the court, said:

“My respect for the legislature is too great to allow me, for a single ■instant, to suppose that they designed so great a wrong as, by a retrospective act, to make that right which was clearly wrong. But granting that intention to be clearly expressed, I have no hesitation in saying that the act is unconstitutional and void.” See also, to the same effect, People vs. Carnal, 2 Seldon, 463; Lawrence vs. Miller, 2 Coms., 245 (New York Repts.).

Mr. Sedgwick, in summing up his presentation of this particular quesiion, i. e., how far remedial legislation, or legislation regulating procedure, may be permitted to affect acquired rights, says: that no general rule can be laid down, and that: “At present all that can be “ done is to bring each case to the test of previous decisions and of “ principle and, as far as possible, to endeavor to restrict the, operation of laws to future cases”. Mr. Sutherland says: “No attempt “has been made to fix definitely the line between alterations of the '* remedy which are to be déemed ligitimate, and those which, under “ the form of modifying the remedy, impair substantial rights; every “ case must be determined on its own circumstances. * * * Yested “ rights can not he destroyed, divested or impaired by direct legisla- “ tion. Their protection is one of the primary purposes of govern- “ ment. They are secured by the bill of rights, and the constitutional “ limitations upon the exercise of the sovereign powers. There is a “ vested right in j>roperty which one owns and it can not be legislated “ away. A vested right is property as tangible things are property “ when they spring from contract or the principles of the common “'law. There is a vested right in an accrued cause of action; in a “ defense to a cause of action, even in the statute of limitations when “ the bar has attached, by which an action for a debt is barred. * * “i;' When a right has been perfected by judgment the fruits of re- “ covery can not be divested by new legislation, nor subjected to new “ hazard by reviving a new right of appeal, or some other mode of re- “ view.” Sutherland on Statutory Construction, Sections 478, 480.

Mr. Black says: “But, as has been already stated, statutes which “ would impair or destroy vested rights will not be allowed to operate “ retrospectively, if that result can be avoided by any reasonable con- “ struction. And this rule is applicable to laws relating to remedies “ and the course of procedure and- practice in courts, in respect to “ their applicability to pending suits.”

Black on Interpretation of Laws, 267.

It is suggested that as the judgment obtained by Cassard in the district court was subject to appeal, and had, in fact, been appealed when the new constitution was adopted, it can not be regarded as a final judgment, and hence that Cassard had no such vested, or prop-, erty right therein as to bring this case within any rule which can be found applicable to the ease of a final judgment from which no appeal could be taken.

The judgment in question decided all the points in controversy between the parties, and had been duly signed by the trial judge, and was, therefore, “final”, according to the text of the law. C. P., 539 <>t seq. It is true that it was not. final in the sense of having passed beyond the reach of judicial scrutiny, since it was awaiting review in the appellate court. But, as has been, already, stated, the plaintiff acquired said judgment, as property, subject to certain conditions specified in the law under and by -virtue of which he obtained it; and that it might be reviewed and reversed on appeal was one of those conditions. Except in so far as it might be affected by those specific conditions, however, the judgment was declared to be his property, and it was so by an indefeasible title.

It is unnecessary to inquire what difference, if any, it would make if there existed no specific declaration of our law that “a judgment when once rendered becomes the property of him in whose favor it is given”, or if that declaration applied only to judgments rendered by courts of last resort, or which are unappealable.

If we should suppose that, in either of these other cases, the judgment in question would be regarded as merely one stage in the plaintiff’s progress in the prosecution of a remedy which the State was as free to withdraw -as it had been free to provide, and that the plaintiff would have no right- to complain of a modification of that remedy which required him to begin over again, this would be merely to suppose a case, the conditions of which are different from those of the case which we are called on to decide.

It is one thing to provide, or withhold, or modify, a remedy, and quite another thing to declare what is, and what is not, property, and to establish the conditions under which it may be acquired and held. A remedy may be provided to-day, and modified or abolished to-morrow. But a right of property once vested in an individual, is not to be dealt with in that way. The fundamental reason for the establishment of any, and all, government is to prevent just such action, and to secure to the individual citizen the enjoyment of his property and his life, free from molestation and arbitrary interference. ■ The law provides how property may be acquired, and that when acquired it can not be taken from the owner save by due process of law, and bald legislation is not due process of law. If, then, the judgment in question is property it falls within the protecting rule. And the law declares, in terms, that it is property, for the text and jurisprudence are conclusive that Article 548 of the Code of Practice applies to judgments rendered by the trial judge, whether the cases decided are ap-pealable or not.

Tt may be that in other jurisdictions such judgments are not declared to he property, and that they are regarded as mere incidents pertaining- to a remedy, the «'hole of which is at all times under the control of the State, but that has nothing to do with the question before us. The State of Louisiana, acting in her sovereign capacity, has made her declaration upon the subject, and'the rights of the citizens of I.ouisiana who are parties to the present controversy are to be determined upon the basis of that declaration. She has said that the judgment of the trial judge, when it becomes final so far as he can make it so, and whether appealable or not, is the property of him in whose favor it is given, and there is no more reason, as far as we can see, for denying full effect to this declaration, than there would be for denying that real estate purchased at sheriff’s sale is the property of the purchaser.

The case of Dunning vs. West, 51 Ann., 618, was appealed directly to this court, and the conclusion was reached that the interests of jus-iice would .be best subserved by remanding it in order to obtain additional testimony. It was a fact, of which the court took notice, that, after the judgment in the lower court, the plaintiff’s wife upon whose account the action had been brought (being an action in damages for personal injuries alleged to have been sustained by her) had been made, by law, a competent witness, whereas she had been unable to testify upon the original trial. Whether the case should, or should not, be remanded, for that, or for any other reason, was, however, a matter within the legal discretion of the court, and it was so dealt with. • And so, it was a matter within the legal discretion of the court of appeai to have remanded the case which we are now considering, if, in the opinion of that tribunal, the interests'of justice would thereby have been best subserved. But the discretion thus vested in this court, and exercised in'remanding the Dunning case, and vested in the court of appeal, and exercised by it in refusing to remand the instant case, is not subject to legislative control, and it is that sort of control which is invoked when we are asked to order the court of appeal to remand this case, which, exercising the judicial discretion vested in it, it has refused to remand. As a matter- of course, the judgment rendered by the trial judge in the Dunning- case having been set aside, the case, when tried again, will be tried according to the law regulating the competency of witnesses «Rich may be in force at the time of such trial, and the act of the legislature by which married women become competent witnesses, in certain cases to which their hubsands are parties, is given a retroactive effect, quoad that case, but it will be observed that the case was not re-opened in recognition of the supposed obligatory force of that statute, and in so far as the reasoning might be construed as pointing in that direction, it must be considered as controlled by the views herein expressed.

A review of the.other authorities to which we have been referred by the learned counsel for relators fails to disclose their applicability. There are many instances in which statutes regulating procedure may properly affect pending- cases' — indeed, it may be said that this is so, generally; but the line must be drawn in any specific case where, “under the form of modifying the remedy”, or regulating the procedure, substantial rights, legally acquired, are impaired or divested. The authorities cited belong to the former class, the instant case to the latter.

The counsel concludes his brief with an argument upon the subject of the action of the court of appeal (in deciding the case upon its merits) upon his assignment of error. We think the question presented is not properly before us. The alleged error complained of, in the pleadings, was the refusal of the court of appeal to remand, and the prayer of the petition is that said court be ordered to remand, the ease. We have concluded that there was no error in the refusal to remand, and the subsequent action of the court, affirming the judgment appealed iron), -formed no part of the issue there presented and decided.

It is therefore ordered, adjudged and decreed that the demand of the relators herein be rejected and this proceeding dismissed at their cost.’

Mr. Justice Breaux concurs in the decree.

Mr. Justice Watkins dissents, adhering to the views expressed in Dunning vs. West, 51st Ann., 618.

On Rehearing.

Blanchard, J.

A reconsideration of these cases has led to a conclusion at variance with that announced in the former opinion of the court.

When trial was had in the district court and when a suspensive appeal from the judgment there rendered in favor of the plaintiff was taken in each of the causes to the court of appeals and lodged in the latter tribunal, the Constitution of 1879 was in force.

Tiiat Constitution (Art. 128) .provided, that :• — “Said appeals (meaning' from the District Court of the Parish of Orleans to the Court of Appeals) shall be upon questions of law alone in all cases involving less than five hundred dollars, exclusive of interest, and upon the law and facts in other cases”. (Italics ours.)

The amount involved in each of these eases was less than five hundred dollars.

As, in case of appeal, the Court of Appeals would not have jurisdiction to sit in judgment upon'the facts, the evidence adduced on the trial in the District Court was not taken, down in writing. Consequently, when appeal by defendants to the Court of Appeals followed the adverse judgment of the District Court, it went up on the law alone.

Shortly after the causes were lodged in the Court of Appeals, and before their trial there, the Constitution of 189S went into effect, superseding the Constitution of 1819.

' The superseding Constitution changed the Court of Appeals for the parish of Orleans in some respects, among others increased the number of its judges from two to three, and enlarged its jurisdiction. Under the new Constitution its jurisdiction extends to all cases, civil or probate, when the matter in dispute or the funds to be distributed exceeds one hundred dollars, exclusive of interest, and does not exceed two thousand dollars, exclusive of interest. Art. 98.

And' it is provided that all cases on appeal to the Courts of Appeal shall be tried on the original record, pleadings and evidence. Art. 103.

A further provision is to the effect that all causes pending in the Court of Appeals as constituted under the Constitution of 1879 were to be transferred to and held to be causes pending in the Court of Appeals as organized under the Constitution of 1898, and this was to be the case at once upon the going into effect of the latter Constitution. Sec. 7, Art. 325.

By the terms of its own declaration the Constitution of 1898 went into full force .and effect from and after May 12, 1898, except as therein otherwise provided. ’Sec. 8, Art. 325.

It thus appears that by operationof the new Constitution the appellants in the cases at bar became entitled to the judgment of the Court of Appeals on the facts as well as on the law of their cases.

But the testimony had not been reduced to writing in the trial court, nor had any statement of facts been* agreed upon.

It was, therefore^ impossible, in the then state of the record, for the Court of Appeals to discharge its constitutional duty of pronouncing judgment upoli the facts of the cases, and appellants were not willing to submit the same upon the law alone.

This being the situation, appellants filed in the Court of Appeals a motion to remand the cases, suggesting- their right, under the Constitution of 1898, to have a trial, hearing and judgment on their appeals both on the law and facts, and praying that the causes be sent back to the District Court with instructions to be there tried anew, to the end that the evidence might be reduced to writing, in order that, in case of a second appeal, the appellate court might perform its constitutional duty of passing judgment on both the facts and the law.

This motion was denied, and the Court of Appeals, proceeding- to adjudge only the law of the case, affirmed the judgments appealed from.

This was error. The- motion to remand should have been granted.

The moment the Constitution of 1898 went into effect, these appeals, then pending in the Court of Appeals, became entitled to consideration, not .from the point of view of the restricted jurisdiction conferred upon the Court of Appeals by the Constitution of 1819, buJ from the point of view of the enlarged jurisdiction conferred upon that court by the Constitution of 1898.

And inasmuch as there could be no judgment pronounced uxjon the facts because of the lack of evidence, or of an agreed statement of facts, in the record, the court should have proceeded to put itself in a position where it could discharge its whole constitutional duty to the litigants.

Obviously, the only way it could do this was to set aside the judgments appealed from and remand the cases with instructions for trial de novo and the taking down of the evidence offered.

Then, if a second appeal followed, it would be in a'position to judgé both the law and the facts.

To hold otherwise is to decree that these appeals were determinable under the jurisdiction vesting in the Court of Appeals under the Constitution of 1879, which Constitution, as the organic law of the State, had been entirely superseded, in all particulars having any bearing upon these cases, by the later Constitution, and was no longer in force.

The language of the. Constitution of 1898 is plain and emphatic to the effect that all cases on appeal to the Courts of Appeal shall.be tried on the original record, pleadings and evidence. On appeal when? Obviously, at the time of and subsequent to the date when the new Constitution became operative. In these cases there were the original records and pleadipgs, but no original evidence. It cannot be said the evidence was lacking through laches or neglect of the appellants. No, it was lacking because of the fact that when trial was had in the court of the first instance, no appeal was allowable 'on the facts and, hence, no necessity, to reduce the testimony of witnesses to writing.

But before trial was had in the appellate court the remedy on appeal was enlarged; the appellants becarpe entitled to the judgment of the higher court on the facts as well as the law.

It was competent, for the new Constitution to so ordain.

The judgments which plaintiffs had recovered in the trial courts were not final judgments, no vested rights had yet accrued, no indefeasible title in anything had passed.

A suspensive appeal was pending, when, through the adoption of a new organic law, the State" declared a change of public policy — that appeals in causes under five hundred dollars then pending or thereafter to he pending-' should be determined by the Court of Appeals upon the facts as well as the law, just as was the case with appeals in cases over five hundred dollars.

For the Court of Appeals to try these cases “on the original evidence”, in the language of the Constitution, it must have the evidence before it. and the only way possible to bring this about was to remand.

That the articles of the Constitution of 1898, providing an enlarged remedy on appeal in the cases under consideration, are not vio-lative of any guaranty of the Federal Constitution, we think clear.

The rule that the terms of a statute or. constitution are not to be interpreted as having a retrospective or retroactive operation unless the language used plainly conveys that intention and is susceptible of no other interpretation, finds no application to remedial statutes or to the remedial provisions of organic laws. Remedial laws are an exception to the general rule, and may have retroactive or retrospective force.

The text writers so declare.

Cooley Const. Lim. (4th Ed.) 469 (*376); Ib. 476 (*381); Black on Inter. of Laws, 265, et seq.; Sutherland on Stat. Constr. p. 221, Secs. 164, 165, 482; Wade on Retroactive Laws, Sec. 198; Am. and Eng. Ency. of Law, vol. 25, p. 451; Ibid. p. 506 ; 1 Marcade, No. 55; p. 43.

And the doctrine finds confirmation in the jurisprudence of ■ this State.

Scott vs. Duke, 3 La. Ann. 253; Kilgore vs. Planters’ Bank, 3 La. Ann. 693, Commercial Bank vs. Markham, 3 La. Ann. 698; Featherstone vs. Compton, 8 La. Ann. 285; Todd vs. Landry, 3 M. 463; Succession of Ashbridge, 1 La. Ann. 206; State vs. Slave King, 12 La. Ann. 593; Frey vs. Hebenstreit, 1 Rob. 565; Baldwin vs. Bennett, 6 Rob. 309; Cooper vs. Hodge, 17 La. 476; Borgsted vs. Nolan, 17 La. 593; Hoa vs. Lefranc, 18 La. Ann. 397; Walmsley vs. Nicholls, 36 La. Ann. 799; State ex rel. Bonnett vs. Judge, 33 La. Ann. 103; Goodwell vs. Elkins, 51 La. Ann. 522; Dunning vs. West, 51 La. Ann. 618.

In the last case cited, very recently decided, the court used this language:- — “The only question really is whether the law enacted subsequent to the ruling in the court below should be considered as now applying. We think it does apply. The law is entirely remedial' and affects none of the vested rights of any one”. And in denying the application for rehearing it was said: — “But the accepted canon of construction of retroactive laws, or those to which a retrospective effect is given, is that whatever relates to the manner of conducting and trying- a suit is always within the control of the legislature, who can, at any time, make any change or modification they may think conducive to the public good, and a proper administration of justice in our courts.”

The Court of Appeals cites, in support of its ruling denying the motion to remand, the opinion of this court in Rosetta Gravel, Paving and Improvement Company vs. Kennedy, 51 La. Ann. 1535.

The main question there did not arise on a motion to remand in order that the evidence might be taken down in writing so that the Court of Appeals may, on a subsequent appeal, pass on the facts as well as the law of the case, but did arise in relation to certain testi-' mony offered in the trial court and excluded, to which exclusion no sufficient bill of exceptions was taken so as to reserve the point and bring it properly before the appellate court for its ruling.

There are, however, in the opinion handed down in that case, on the application for rehearing, statements of the law in conflict with the rule announced in this opinion, and in the opinion of the court in Dunning vs. West, supra, and in so far as this is so, the Rosetta Gravel Co. ease must be considered overruled.

For the reasons assigned, it is ordered that the former decree of this court herein be set aside, and it is now ordered, adjudged and decreed that the judgment of,the Court of Appeals be annulled and vacated, and that this cause be remanded to the court of the first instance for further proceedings according to law, and with instructions to talse clown in writing the testimony offered on the second trial of the case there, to the end that should an appeal be prosecuted to' the Court of Appeals from the judgment rendered that tribunal may be in a position to pass upon both the law and the facts of the case.

It is further ordered, etc., that the costs herein incurred in the Court of Appeals and in this court be borne by plaintiff, those of the District Court to abide the final determination of the cause.

Mr. Justice Watkins handed down a concurring opinion; the Chief Justice dissented and filed his reasons; Mr. Justice MonRoe dissenting, expressed his views orally from the bench.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 13,171.
    Sigmund Mendelsohn vs. Peter Blaise.
    Syllabus.
    In a rule taken by the sheriff upon the parties to an executory proceeding for the sale of mortgaged property, to show cause why a title should not be executed to the purchaser, no question relating to the respective rights of mortgage creditors on the proceeds of sale can be determined.'
    APPEAL from the Civil District Court, Parish of Orleans. Theard, J

      William 8. Benedict for Sigmund Mendelsohn, Plaintiff in Cause and Appellee.

      Dinkelspiel & Hart for Civil Sheriff, Plaintiff in Rule, Appellee.

      George W." Flynn for John Fitzpatrick, Inter Venor in Suit and Defendant in Rule, Appellant.

      Buck, Walshe & Buck for Peter Blaise, Defendant in Rule, Appellant.

      Felix J. Dreyfous for R. G. Martinez, Defendant in Rule, Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding taken by rule on the part of the Civil Sheriff upon the plaintiff, defendant and intervenors in this case, to compel them to show cause why a title should not be executed and delivered by him to the purchaser, conformably to the adjudication made at public auction under a writ of seizure and salé therein issued — John Fitzpatrick and the defendant, Peter Blaise being the intervenors.

The averment in the rule is, that the plaintiff made a sale at public auction of the mortgaged property to Mrs. Anna Hollander, for the price and sum of twenty-four hundred dollars; and that the said purchaser has complied with the adjudication by paying the price, 'and has demanded a proper deed to be executed and delivered to her.

Neither of the defendants in rule made any answer, though they appeared by counsel at the trial and resisted its being made absolute.

The record shows that during the trial it was admitted by all parties that the property was sold, as set forth in the rule, on March 24, 1899, and adjudicated t'o Mrs. Hollander for twenty-four hundred dollars, and that she paid the price to' the sheriff.

All of the executory proceedings -were introduced and filed in evidence by reference only' — same forming no part óf the transcript. Counsel for the plaintiff in rule called the attorney for John Fitzpatrick, intervenor, as a witness, and we extract the following from his testimony:

“Q. — Mr. Flynn, did you not instruct or notify the sheriff that he might make the sale of this property, notwithstanding the appeal taken by you on the 20th of January, 1899 ?”

Counsel for the defendant objected, that the defendant can not be bound by any such agreement, if made, and also, that it was not competent for counsel to waive his client’s rights; and counsel for the intervenor objected to parol proof to contradict what should have been in writing.

These objections were overruled by the court, but no bill of exception was reserved by either defendant or intervenors; and, thereupon, the witness made the following answer, to-wit:

“A. — I told the sheriff that I had a talk with Mr. Benedict (counsel for the plaintiff in execution), and didn’t think I would raise any objection to the sale of the property, as I thought that our' rights would be as well preserved under the proceeds of sale.”

In suit of same title, No. 13,234, on the docket of this court, an agreement was made and entered into by all parties, that it should be fixed for trial this day, and that the two eases should' be taken up and tried together, as it (No. 13,234) presents the identical issues as are presented in the instant ease, No. 13,171.

Upon that agreement we are justified in considering the evidence in that case as strictly applicable to this; and we make therefrom.the following extract from the testimony of the witness .above referred to:

“Q. — Mr. Fl;fnn, you are the attorney of John Fitzpatrick in the case of Sigmund Mendelsohn vs. Peter Blaise * * * ?

“A. — Yes, sir.

“Q. — And on his behalf you fileíd a motion for ax>peal on the 19th of January, 1899?

“A. — That is correct.

“Q. — Did you at that time, or subsequently, state to the sheriff that he might go on and sell the property in his hands ?”

To this question and the answer sought, counsel for the defendant and intervenor, Peter Blaise, objected, on the ground that it was an agreement between the parties in relation to a matter pending before the court, which can not be proved by parol testimony; and this objection was overruled by the court, and a bill of exceptions reserved.

In our opinion the district judge properly received the evidence.

The statement of the witness, as counsel for .the intervenor, was a matter en pais, and only susceptible of being established by parol proof. We know of no rule of law requiring such a statement, or consent to be reduced to writing. The objection having been overruled, the witness made the following statement:

“A. — I will state that-the sheriff advertised the property without consulting me at all; and he asked me about it, and I told him I would consult Mr. Buck; that so far as I was concerned I had no objection. That is what I told the sheriff. I never instructed him.

ilQ. — After that rule (for contempt) had been taken what did you tell the sheriff ?

“A. — It was then the sheriff asked me about the advertisement. As near as I can remember, he "told me that Mr. Benedict had had a talk with him, and I told him I also had a talk with Mr. Benedict; and so far as I was concerned, I bad no objection, I thought we could come to an agreement; that I would consult with Mr. Buck.”

From what we gather from the record, it appears, that the plaintiff, Mendelsohn, obtained executory process f or --the. enforcement of a mortgage against the property of defendant, Peter Blaise. That John Fitzpatrick filed a third opposition, claiming that plaintiff’s mortgage was a mere simulation, and not real; and for that reason could not be enforced; that he, at the same time, alleged, that he had a mortgage upon the property, which entitled him to be paid from the proceeds of the sale, the amount of his claim against the defendant.

It, also, appears that Peter Blaise likewise opposed the enforcement of the plaintiff’s mortgage, and for a similar reason. John Fitzpatrick coupled with his third opposition a writ of injunction, restraining the sale of the mortgaged property. On the trial, there was a judgment rejecting the demands of the intervenors, and sending the property to sale; and therefrom the intervenor, Fitzpatrick, prosecuted what he claimed to be a suspensive appeal; and the defendant and third opponent, Peter Blaise, prosecuted, only, a devolutive appeal.

The contention of the seizing creditor, Mendelsohn, was that the appeal of John Fitzpatrick, third opponent, was taken too late, and did not operate as a suspensive appeal, and that he was entitled to proceed with the execution of his writ of seizure and sale.

It is to this condition of affairs that the testimony of the. attorney of Fitzpatrick, third opponent, relates; and.we entertain .the opinion that he thereby plainly waived his right to insist upon his injunction against the sale being made.

Entertaining this view, there is no course open to us but to affirm the judgment appealed from. But, in so doing, we do not find it necessary — or even possible — -to pass upon the respective rights of the two contending mortgage creditors. We will, therefore, leave them in statu quo, to be determined when that part of the controversy is properly before us. Neither party will be injured by this course being taken, as both parties can exercise their rights upon the proceeds of sale, as well as they could against the property.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,265.
    Charles D. Lloyd vs. F. O. Hamilton.
    Syllabus.
    The homestead and exemption provisions of the Constitution of 1898 took effect, according to the terms of Article 247 and of Article 325, paragraph 8, upon January 1> 1899, and were not intended to operate retroactively, and as of the date of the adoption of the Constitution.
    APPEAL from the Third Justice Court, Parish of East Feliciana— , Austin, J.

      Robert G. Wickliffe for Plaintiff, Appellee.

      Samuel McQ. Lawrason for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

This ease comes before us on the following statement of facts, agreed on by counsel, to-wit:

“F. 0. Hamilton, defendant in injunction, on the 18th day of April, “1899, obtained a judgment against C. D. Lloyd*, plaintiff in injunc- “ tion, on a promissory note for $78.19, dated December 3, 1898, and “ payable one day after date. Execution issued on said judgment on “ the 21st day of April, 1899, and the constable of the Third Ward “ seized one horse, the property of 0. D. Lloyd, plaintiff in injunction. “ The said C. D. Lloyd sued out an injunction against the sale of the “ horse, and for damages, claiming exemption from seizure of said “ horse under the Homestead Law, Arts. 244 et seq. of the Constitution “ of 1898, and praying for the release of said horse, * * * C. D. “ Lloyd, the plaintiff in injunction, is the head of a family and a per- “ son having a wife and children dependent on him for support, and is “ fully entitled to all the privileges of the Homestead Law of 1898, if “ in force against said judgment. The horse seized was a work horse, “ and his only property. The wife of C. D. Lloyd owns no property.”

The Justice of the Peace maintained the injunction against the seizure of the horse, and the defendant in injunction, appealed directly to this court, under the provisions of Article 85 of the Constitution of 1898, which confer appellate jurisdiction upon the Supreme Court in “suits involving- Homestead exemptions.” Upon the facts stated, the horse seized is exempt under Article 244 of the present Constitution, quoad all claims arising- after January 1, 1899, when that article went into effect.

And the only question to bo determined is, whether it is exempt, quoad the claim of the seizing creditor, which came into existence in December, 1898, and was reduced to judgment in April, 1899.

The learned counsel for the plaintiff makes the following- statements in his brief:

“At first blush, our contention may seem to have little merit, as it “ appears to be one of those cases where the debt was contracted before “the Homestead.law went into effect, and therefore, must either be “ collectible against homestead property, or else impair the obligation “ of a contract. * * * The law upon which we rely, for the affirm- “ ation of the judgment of the lower court, is drawn, by inference, “ from the first paragraph of Article 245 of the Constitution of 1898: “ ‘Eights to Homestead or exemptions under laws, or contracts, or “ obligations existing at the time of the adoption of this Constitution, “ shall not be impaired, repealed or affected by any provision of this “■ Constitution or any laws passed in pursuance thereof.’ ”

It is argued from this that, inasmuch as the Constitution was adopted as of date May 1,2, 1898, the debt in question fell under the dominion of the Homestead exemptions contained in Article 244, because it was not contracted until December, 1898; and this, notwithstanding the fact that, by the terms of Article 241, the provisions in the Constitution concerning Homestead exemptions were not to take effect until January 1, 1899; the position of the counsel being, that the language of Article 245, which has been quoted, was a notice to the public that the homestead provisions, when they did take effect, would operate retroactively to May 12, 1898, the date of the adoption of the Constitution.

We find ourselves unable to concur in this view of the matter. The consensus of opinion among all writers and jurists is that no construction of law, whether constitutional or statutory, whereby it is given a retroactive effect, should be adopted, unless the language. used, in plain, unambiguous, and unmistakable terms, requires such construction. As to the constitutional provisions which are invoked, there is another construction than that suggested, which seems to us, not only permissible, but. imperative.

True it is, that the Constitution, as a whole, wa§ adopted May 12, 1898, but the language of Article 247 is: “The articles of this Constitution, relating to homesteads and exemption, shall take effect on January 1, 1899”, which was tantamount to saying that, quoad the articles thus referred to, the Constitution should be considered as adopted January 1, 1899.

The members of the convention which adopted the Constitution knew that their labors ended upon the twelfth of May. They also knew that the homestead and exemption provisions of the instrument which they had framed differed from those contained in the Constitution of 1879, in the important particular, without inquiring further, that outside the parish of Orleans it would no longer be necessary to register a homestead right in order to enjoy it, but that it would nevertheless bo competent to waive such right by obtaining the consent of the wife, and registering the waiver. This changfe, it might have been presumed, would, in some, perhaps in many, instances involve a readjustment of business relations, and result in inconvenience or injustice if given effect without due warning; and hence it was specifically provided that it should not take effect until January 1, 1899. And this pro-vision harmonizes with the schedule of the Constitution, Article 32th par. 8, which reads:

“This Constitution, adopted by the people of Louisiana, in conven- “ tiorn assembled, shall be in full force and effect from and after this “ 12th day of May, 1898, save and except, as otherwise provided in this “ Constitution.”

Under these circumstances, and since the makers of the fundamental law have declared, in terms, that the provisions here relied on should take effect upon the date mentioned, we have no authority for holding that it should take effect, retroactively, seven months earlier.

The fact that the judgment was obtained after January 1, 1899, upon a debt created before that date does not affect the question. That remedy was part of the right, unless it can be shown that some other adequate remedy has been provided.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of F. O. Hamilton, defendant in injunction, and against C. D. Lloyd, plaintiff in injunction, dissolving said injunction and rejecting the demand of said plaintiff at his cost.


author: Blanohakd, J.

text:
    No. 13,031.
    Louisa Lamotte vs. Marcelin Martin et als.
    Syllabus.
    1. Where a party is decreed the owner of property, it follows logically and legally that he or she is entitled to possession thereof, in the absence' of a showing of a legal right of possession in another.
    2. Supposing collation to be due, the donee of property is entitled to retain pos session of the immovable pending settlement of the rights of forced heirs among themselves.
    3. Collation is an incident to the action of partition of succession property among the heirs, and the proper place for the inquiry to be. gone into,' and proceedings had in relation thereto, is the succession itself.
    4. where a plaintiff succeeds in her demand, even in part, against both of two defendants, the latter owe costs in solido.

    A.PPEAL from the Civil District Court, Parish of Orleans — King, J.

      Albert Voorhies for Plaintiff, Appellant.

      Robert Legier for Mareelin Martin, Defendant, Appellee.

      Hugh 8. Suthon and E. J. Moral for the other Defendants, also Ap-pellees.
   The opinion of the court was delivered by

Blanohakd, J.

This cause of action is the alleged ownership by plaintiff of two certain lots of ground in the city of New Orleans, dei scribed in her petition, which property she avers to be in the illegal possession of defendants, and to recover which is the object of this suit.

Plaintiff was the daughter of Andre Martin Lamotte. She had been the wife of Hippolyte Rouilliot, but was divorced from him. She resided in Paris. Her father resided in New Orleans, but was dead when this suit was filed.

On January 16, 1891, the father executed in favor of the daughter (plaintiff) what purported to be a public act of sale of the property in question. It was really a donation in disguise and intended as a donation purely, there having been no real consideration for the sale.

The father, following this transfer, became the agent by public act of procuration of the non-resident daughter and, as such, administered the property and other property to which plaintiff held title.

Later, she executed to him a special power of attorney to sell a portion of her property in order to raise a fund with which to repair and improve the other part. He represented to her, it is averred, that tins was advisable and necessary. It is charged, however, that this was not the true purpose of seeking the power of attorney; that its real object was to divest plaintiff of the title to the property in question and transfer the same to one Eugenie Andrea Lamotte, who is alleged to be the four-year-old illegitimate daughter of Andre Martin Lamotte and Octavie St. Avid.

' Acting under the power of attorney the father of plaintiff executed, on December 29, 1891, in the name of plaintiff and as her agent, an act of sale to the property to one Marcelin Martin.

The ostensible price was $3500.

Sixteen days later, to-wdt: — on January 14, 1892, Marcelin Martin, by act before the sanie notary, professed to sell the same property to Eugenie Andrea Lamotte, the four-year-old child aforesaid. The deed recites that the child is represented therein by her father and natural guardian Andre Martin Lamotte, who, in fact, signs the same .i.n acceptance thereof for and in behalf of the child.

The price is fixed in this act at $3500.

Plaintiff alleges that the several acts and transfers between her father and Marcelin Martin were the result of unlawful combination and collusion to deprive her of her property; that the conveyances were sham sales; no price was paid; and that Marcelin Martin was simply an interposed person, participating in the fraud contemplated and sought to be effected by her father and agent against her for the benefit of Eugenie Andrea Lamotte.

It appears that subsequent to the birth of the latter (Sept. 10, 1890), the father contracted marriage (Feb. 3, 1891) with Octavie St. Avid, the mother of the child, and that there was born to the couple in lawful wedlock on May 1, 1892, another child, who is called Emma Lamotte.

The father died, and Octavie St. Avid Lamotte, his widow, became tutrix of the children. At least, she is sued herein as tutrix of Eugenio Andrea Lamotte, who, with Marcelin Martin, is made .defendant.

The prayer of the petition is that the acts of sale from Andre M. Lamotte to Marcelin Martin, and from the latter to Eugenie Andrea Lamotte, be declared null andwoiu ah inilio, that plaintiff be recognized as the owner of the property, for judgment against both defendants in solido for rents, and that Marcelin Martin be condemned, additionally, to pay her $3500 as damages.

Marcelin Martin sets up in his answer that plaintiff had, on the 28th of J anuary, 1892, within a month of the execution of the act of conveyance of the property to him by her father, passed before the. Vice Consul of' the United States in Paris an act of approval and ratification thereof. He affirms his own good faith in all the transactions attacked, and denies any liability to plaintiff.

The other defendant, cited as tutrix, answers with a general denial and a plea that the issues raised herein are involved in the settlement of the Succession of A. M. Lamotte, then pending in the District Court.

• Judgment below declared plaintiff’s title to the property to be that of a donation inter vivos from the father.

Further, it declared null and void, as without consideration, the transfer made to Marcelin Martin, and that from him to the minor Eugenie Andrea Lamotte.

It then proceeded to declare the property in question subject to collation in the Succession of A. M. Lamotte, after the legal status of Eugenie Andrea Lamotte is established therein, and rejects the demand of plaintiff for possession of the property, reserving to her the right to claim possession thereof as heir, or “by donation in said succession from all the heirs of A. M. Lamotte.”

It also declares the rents and revenues of the property subject to collation in the Succession of A. M. Lamotte, and dismisses the suit and rejects plaintiff’s demand as to Marcelin Martin. The costs are placed upon the minor Eugenie Andrea Lamotte.

Plaintiff alone appeals, and in this court no amendment of the judgment in nny particular is asked by either of the defendants.

Since defendants have not appealed, nor filed answer here praying amendment of the judgment which the plaintiff has appealed from, no inquiry can be made into the validity of the defenses set up to sustain the several acts of sale by which the property became vested in Eugenie Andrea Lamotte, nor can any change be made in the judgment which declares those acts nullities and reinvests in plaintiff the legal title to the property.

As for Mareelin Martin, he is concerned only in maintaining that part of the decree which rejects plaintiff’s demand for a money judgment for rents and damages and costs against him.

The inquiries to he gone into are those raised by plaintiff’s appeal, which are, .to have the judgment of the court a qua amended so as to decree the possession as well as the title of the property to her, and so as to award a monied judgment to her for rents and costs against both defendants in solido, and against Mareelin Martin for damages.

The evidence abundantly establishes that the pretended act of sale by which Mareelin Martin acquired title to the property and the sub-seouent one by which tins title was sought to be vested in the minor Eugenie Andrea Lamotte were mere shams, without consideration and void. Mareelin Martin was an interposed person, having no real interest himself in the several transactions, and was simply made use of by the father and agent of plaintiff to effectuate his purposes.

The judgment below was, therefore, correct in setting those sales aside and decreeing plaintiff to hold the legal title to the property by the previous donation of the same made to her by her father.

If she were owner of the property in virtue of this donation, it follows logically and legally that she is entitled to possession thereof.

She was in possession of it through her agent when the acts were done (herein annulled) which sought to wrest the legal title from her and which, it seems, did wrest the possession from her. The judgment appealed from restores her to the legal title, but, inconsistently, rejects her demand for possession in this proceeding, and continues this possession in the person decreed to have no title and whose possession sprang from the acts declared by the judgment to be void.

This cannot be.

It may be that plaintiff is under the obligation of collating, and that the property awarded her herein is subject to collation, in a settlement between the forced heirs of the dead father. But this is not the place for this to be done, or to be gone into; nor are there pleadings, parties and facts disclosed by the record enabling it to be done.

Supposing this collation to be due, who, meanwhile, is entitled to retain possession of the property which owes the collation, or because of the donation of which the collation is due?

Unquestionably tbe donee. C. 0. 1251, 1255, 1277, 1268, 1278, 1282.

Collation is an incident to tbe action of partition, and tbe party subject to tbe demand has certain rights, among which is ordinarily that of-retaining the thing subject to the collation pending the settlement between the heirs. If he had possession of the thing donated at the time the obligation of collation arose, the coming into existence of that obligation does not operate, ipso facto, or eo instante, to dispossess him.

The judgment complained of must necessarily be amended so as to permit legal possession to follow the legal title:

With regard to the rents and revenues of the property claimed from Eugenie Andrea Lamotte, a non-suit will be entered, with reservation of plaintiff’s rights.

'We do not think that a case is made out against Marcelin Martin for rents and revenues of the property. He never actually had possession of the property, or if so, for only a few days, and it is not shown ho ever collected or enjoyed a cent’s revenue from that source. He is hardly to be condemned for the same as guilty of a quasi offense, under the facts appearing.

As to the damages claimed by plaintiff of Marcelin Martin, it suffices to say that no proof of anything of the kind is to be found in the record.

As to the costs of suit, Marcelin Martin is not to escape so easily. It was necessary for plaintiff to bring an action against him and the party to whom he conveyed the property to set aside the conveyance, as well as the previous transfer made to him. Plaintiff succeeded in her demand in this regard, and as a consequence is entitled to her costs against both defendants in solido.

For the reasons assigned, it is ordered and decreed that the judgment appealed from, in so far as it adjudges the plaintiff to be the owner by donation inter vivos from her father of the property described in her petition, and in so far as it adjudges null and void the transfer of the same made to Marcelin Martin on December 29th, 1891, and that made to Eugenie Andrea Lamotte on January 14, 1892, be affirmed.

It is further ordered, etc., that in all other respects the said judgment be annulled, avoided and reversed, and it is now adjudged and decreed that plaintiff be sent into possession of the property aforesaid; that there be judgment as of non-suit on her demand for rents and revenues of the property against Eugenie Andrea Martin, with reservation of her legal rights thereto; that plaintiff’s demand for rents and revenues of the property against Marcelin Martin, and for damages, be rejected; that the question of collation raised be referred to the Succession of Andre Martin Laxnotte, deceased, for settlement by proper proceeding between the forced heirs, with full reservation of all rights of all parties concerned; and that the costs of both courts be taxed against the two defendants in solido.

Rehearing refused.


author: Watkins, J. Breaux, J.

text:
    No. 13,338.
    Mrs. Charles H. Dupuy vs. Valiere P. Dupuy, Administrator, et al.
    Syllabus.
    The succession of the deceased being valued at thirteen thousand dollars, and his surviving widow having received eighteen hundred dollars in cash on insurance policies in her favor at his death, she was not left in necessitous circumstances entitling her to claim the marital fourth of his estate.
    On Rehearing.
    If the husband dies owning considerable property and leaves his wife in necessitous circumstances, she is entitled to the marital fourth in usufruct, but any legacy left to her by her husband, or means for her support provided for her by him, amounting to less than one-fourth of bis estate must be deducted from the amount left to his widow in usufruct.
    APPEAL from the Fourteenth Judicial District, Parish of Iber-ville — Talbot, J.

      Lozano & Hebert for Plaintiff, Appellee.

      Hebert & Hebert for Defendants, Appellants.
   The opinion of the court was delivered by Watkins, J.

On rehearing by Breaux, J.

Watkins, J.

This suit is instituted by the surviving widow of Charles H. Dupuy, who died in the month of October, 1898, against his succession and heirs, claiming that he died rich,' leaving her in necessitous circumstances, and that she is entitled to receive from said estate what is termed “the marital portion”. .

' ' The defense is a-general denial; and further, that her husband haid insured Ms life iii her favor for the'sum of $1,800, which she collected soon after his death." •

On the trial, theré was judgment in favor of the plaintiff, decreeing her entitled to íéc'eive one-fourth of thirteen thousand dollars as' the value of the succession, after th'e'pajuneiit o'f its debts, but in usufruct, only; conditioned upon her execution of bond with solvent security according to law.

It is from that judgment that the defendants prosecute this appeal.

The statement of plaintiff’s counsel is, that she married the deceased in the year 1893; that she brought no dowry into the marriage, and that at the time of his death, she had no property or any means of gaining a livelihood.

That her husband at his death, left no children issue of their marriage, but that he left three children of a previous marriage. That the wife, after the death of her husband, collected eighteen hundred dollars of insurance on his life. That the succession, after the payment of all debts, is worth thirteen thousand dollars.

Defendants’ counsel state thart the succession of the deceased is still under administration, and no account has ever been filed. That at his death, Charles H. Dupuy left three children by a former marriage, all of whom are daughters, two of them minors.

That they resist plaintiff’s claim on the ground, that she was at the time of her husband’s death 'the beneficiary to the extent of one-half of two insurance policies on the life of her husband; one of the policies in the Pacific Mutual of California for $3,000, the other a paid up policy in the Equitable Life of New York for $600, and that the plaintiff had prior to the institution of'this suit collected thereon the amount due her, of $1,800.

They aver that when the plaintiff married Charles II. Dupuy, she had nothing. That she was employed by the deceased for four years before the marriage, as a governess for his three daughters, at a monthly salary of ten dollars, and lived like the family she was serving. The plaintiff is now 41 years of age, and that her health is as good as it was before her marriage.

That plaintiff has an unmarried son, twenty-four yea-rs of age, who recovered from the succession one hundred and fifty dollars for his personal services as manager of the plantation of the deceased during the months of October and November, 1898, and that this young man is capable of earning seventy-five dollars per month. That the deceased and his family lived as people of very ordinary means, or what may be termed “a frugal life”.

Thereupon, defendants’ counsel contend (1) that the deceased did hot die rich leaving his surviving widow in necessitous circumstances, and that she is not entitled to the marital fourth; (2) that if she is. entitled to the -marital portion, she must take it less the amount' she has received from insurance on her husband’s 'life; that is, the sum "of $1,800; (3) that the court can not decree-her to be entitled to the marital portion at this stage of the proceedings in the succession and must leave the amount to be determined by the final account of administration. '

The law provides, that when the -wife has not brought any dowry, if the husband die rich leaving the survivor in necessitous circumstances,' the latter has a right to take out of the succession of the deceased, what is called the marital portion; that is the fourth o-f the succession in full property, if there be no children, and the same portion iri usu-fruct only, when there are but three, or a smaller number of children.

R. O. C., 2382.

The question for decision is, did Dupuy die rich, leaving his widow in necessitous circumstances? ■ '

In Melancon vs. Executor, 6 La., 105, Judge Martin, speaking for the court, said:

“If the husband leaves his wife ‘an annuity sufficient to enable her to live in the same style as to comfort, and elegance as persons of her rank live in, then she is not left in necessitous circumstances’”

In Smith vs. Smith, 43rd Ann., 1140, the court said:

“The only question is, whether the deceased left plaintiff in necessitous circumstances. It is well settled in our jurisprudence'that the terms 'necessitous circumstances’ are used' relatively to the fortune of her husband, and to the condition in which she lived during the mar” riage. As said in one case: ‘In estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have engendered in his family. The rule derived from the Roman and Spanish law in such cases is, that the surviving wife is entitled to the marital portion,'unless she has the means bene et honeste vivere, according to the condition of her husband.’ Dunbar vs. Heirs, 5 Ann., 159.”

In Succession of Fortier, S Ann., 104, it was held, “the principle upon which the law appears to be founded is, that neither of the marital parties who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want; and a part of the estate of the deceased, who has died rich,- is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty.”

In Gee vs. Thompson, 11th Ann., 657, the court used this language:

“The surviving husband or wife is to have the marital fourth only “ when the pre-deceased spouse died rich leaving the survivor in ne- “ eessitous circumstances. * * * The common law of England “ gives the surviving wife, whether rich or poor, dowry in her hus- “ band’s estate; * * * but our law, if less generous in this res-

“pecfc, affords something to the necessities of the survivor. We think “ it should receive a fair if not a liberal construction.”

In Succession of Leppelman, 30th Ann., 468, the court observed, that “rich is a relative term. Property which would make a person, in one condition of life rich, would be inadequate to supply the wants, albeit they are artificial, of one in another condition’ of life.”

In Succession of Derouen, 10 Ann., 675, it was held:

“The intention of the legislator, in that article, is clear, that the “ needy surviving spouse shall not, in any case, take from the succes- “ sion of the wealthy pre-deceased spouse, who has left children, more “ than the share which will be coming to each * * * To give him “more, would be to impoverish his children, * * * contrary to “ the policy of the law, which is, not to disturb the order of inherit- “ anee, but in certain cases to count a surviving spouse as one of the “ children of the deceased spouse.

* * ■*- * -x- * K

“In the application of the law, in relation to the marital portion, “ the means possessed by the needy spouse are always to be taken into “ account.”

In Succession of Justus, 44th Ann., 721, this court held that the right of a survivor left in necessitous circumstances to take the marital fourth is a bounty, or charity, which may be well assimilated to that in cases of necessitous widows or minors who are entitled to claim $1,000 in preference to creditors.

That the right conferred by law is one in favor of a surviving consort left in impecunious circumstances, and depends on the condition of the person in whose favor it was granted.

In Succession of Rogge, 50th Ann., 1220, this court had occasion, recently, to state its interpretation of the provision of law in question.

“The principle”, say the court, “upon which the right of the necessi- “ tous surviving spouse to take the marital portion, the reasons, the “ cause, the motive of the law in granting it, is founded upon the con- “ sideration, or policy, that neither of the married persons who have “ lived together in the common enjoyment of wealth and of the posi- “ tion which it gives, shall be suddenly reduced to want, and accord- “ ingly, a part of the estate of the opulent deceased is appropriated to “ relieve the survivor, who, in the absence of it, would be reduced tó “ poverty”.

The sense of the foregoing authorities, when carefully considered with respect to the proven facts in this case, clearly shows the plaintiff without right to recover the marital portion of her husband’s estate.

At the time of his death, he was the owner of property valued at thirteen thousand dollars, approximately; but, at the same moment of time, his wife was entitled to receive and did receive, thereafter, eighteen hundred dollars in cash, on policies of life insurance in her favor.

From the same source, each of the three daughters of the deceased received six hundred dollars, only, and their respective shares of the father’s estate is only three thousand two hundred and fifty dollars.

The deceased and the plaintiff led a quiet, frugal life on a plantation in the country; and prior to their marriage, the plaintiff had lived in his house as a matron, at a salary of tén dollars per month.

On this showing, our opinion is that the surviving wife of the deceased was not left in necessitous circumstances, and she is not entitled to recover the marital portion.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be anulled and reversed; and it is further ordered’and decreed that the plaintiff’s demands be 'rejected at her cost in both courts.

BlaNchard, J., dissents, holding that the widow should be allowed the marital fourth, from which should be deducted the $1800 insurance money.

On Rehearing.

Breaux, J.

The opinion heretofore handed down in this ease contains a complete narrative of the facts and circumstances upon which the court is called upon to act.

The late husband having left a considerable sum of money constituting'' the assets of his succession, and his wife being in necessitous circumstances; we think she is entitled to the marital fourth. Wo aré led to this conclusion by the fact that in one of the reported cases, the husband left only five thotisáiid dollars, the widow being without property, and the court held that the husband died relatively rich and that she was entitled to the marital fourth! It is true that in another case reported the wife had two thousand dollars in her own right while the estate -of her husband amounted to eight thousand dollars; an’d the court held that she was not in necessitous circumstances. It may be,’ however; that a wife who has only eighteen hundred dollars and whose husband left about thirteen thousand dollars, may be considered, relatively speaking, poor and in need of aid in order to uphold as a widow, to some extent, the condition in which she lived before she had the misfortune to lose her husband.

The evidence that the plaintiff was a widow when she was married to Dupuy, and is now the mother of a grown son, issue'of her first marriage, does not militate against her fight to recover the marital fourth. We infer from the testimony that the said son is without means and is not in a situation to provide support for his mother. A young man,1 without means, is not to be considered when his mother claims the marital fourth;

The purpose of the provision regarding- the marital fourth is to provide, with some certainty, for the support of the 'spouse left poor, and not to leave her as she' would be left if she had to look exclusively to a toiling son for support or to the varying changes of fortune :or hazard1.

Having concluded that the eighteen hundred dollars is not enough do exclude her entirely from the right to the marital fourth, the question arises, as to whether she can'claim the marital fourth as if she had not collected this amount. In our view of the law, the question must be answered in the negative. This amount should be considered in fixing the rights of the parties. This, we think, was the view of the law taken in Succession of Derouin, 10 A., 675, in which the court said: “In the application of the law in relation to the marital portion, the means possessed by the needy spouse are ¡always to be taken into account”, citing several decisions in support of this view and referring to the doctrine announced by the commentators. It is true that this amount was not a legacy in terms left by thfe husband and for that reason is not expressly referred to by the word legacy in thé' article of the Civil -Code, 2383, nevertheless it cannot be overlooked'that the amount was secured by the husband who chose -to niake his wife'the beneficiary of a policy on his life. We think that the amount'should be considered in fixing the-amount of the- wife’s marital fourth and shall so decree.

With reference to the marriage of the usufructuary in ease she should contract other matrimonial ties, we do not think that we are called upon at this time to pass upon the effect of an event which may never take place.

In deciding this case, we have not overlooked Article 1745 (Old Code), of the Code restricting the donation of the husband or wife who contracts a second or subsequent marriage. In the Succession of Derouin, cited supra, passing on a smiliar question, the court incidentally directed attention to this article. Whether it has application or not when a donation or bounty is provided by the wife under the terms of the law is of no importance here, for, after the wife shall have accounted for the eighteen hundred dollars, she will receive from the succession of her late husband, in usufruct, less than one-fifth of it. In justice and equity, the wife may be held to account, in fixing-her portion of the marital fourth, for the amount received on a policy of insurance as having to that extent relieved her from destitution, while, at the same time, it is not considered as a part of the husband’s succession. In carrying out.the equitable intention of the law to provide something for the survivor, we think that the sum before stated may be considered in inákihg up the marital fourth, although this court has carefully guarded the beneficiary’s rights to a policy of insurance by excluding it from the active part of the succession; when such was the manifest intention of the insured.

In carrying out the law’s policy to protect family ties, to some extent at least, by providing something for the survivor in necessitous circumstances, there is no necessity of enforcing it to the detriment of the heirs by considering the beneficiary of the marital fourth as one who must receive the amount regardless of the actual value of the property.

It is therefore adjudged, ordered, and decreed that the plaintiff, Mrs. Charles H. Dupuy, lie allowed the marital portion, to-wit, one-fourth of the thirteen, thousand dollars, value of the succession, in usufruct, less eighteen hundred dollars. The usufructuary is to furnish bond with solvent security, conditioned according to law, during the continuation of the usufruct. Our original opinion containing a correct statement of the facts is reinstated, also the decree, but only in so far as it recognizes that the wife is entitled to the eighteen hundred dollars on the policy of insurance, which our judgment orders to be deducted as just stated. In every other respect the re-instated judgment is reversed.

Appellee must pay costs.