author: Nicholls, C. J.

text:
    No. 13,322.
    State of Louisiana vs. Immanuel Presbyterian Church of New Orleans.
    Syllabus.
    The District Court is without authority to take the property of a religious corporation, equipped with a regular Board of Trustees, out of the latter’s hands, and place it in the hands of a receiver, by an ex parte order rendered upon the allegations of an unverified petition, and without the production of any evidence in support of the same.
    This is specially the case where the relators do not belong to the congregation and have no pecuniary interest in the property or in its administration. The fact that the State of Louisiana is one of the relators, and that the receivership is asked as an incidental proceeding in a suit for the forfeiture of the church’s charter, does not affect the question.
    ^PPEAL from the Civil. District Court, Parish of Orleans — King,

      Milton J. Cunningham, Attorney General, (Omer Villere of Counsel), for Plaintiff, Appellee.

      Benjamin Pace Forman for Defendant, Appellant.
    Statement of the Case.
   The opinion of the court was delivered by

Nicholls, C. J.

The prayer of the plaintiffs in this case was that the Immanuel Presbyterian Church be cited; that a receiver be appointed to take charge of whatever is left of said Kaspar Auch Fund, and of the property of said corporation, with power in said receiver to sue and recover from the debtors thereof any part of said fund which may have been loaned to them, to proceed with the execution of the judgment against the said Owen Riedy, and to sue the Trustees who participated in the misapplication of said Auch Fund and any parties who may have knowingly received part of said fund for the recovery thereof, and after due proceedings that the charter of said Immanuel Presbyterian Church be declared forfeited and the said Kaspar Auch Trust Fund, or so much thereof as may be recovered, be turned over to the other Presbyterian churches, to be administered for the benefit of the poor, in accordance with the will of the late Kaspar Auch.

The demand was based upon allegations that the defendant was incorporated in New Orleans by notarial act, in 1880.

That Kaspar Auch died in 1886, leaving a will by which he bequeathed the residue of his property to the several Presbyterian churches of this city “to the end that the poor of said churches in this city may be cared for”.

That under the said will the Immanuel Presbyterian Church of this city received in 1887, from the executors of the said Kaspar Auch, about eleven thousand dollars, and seventy premium bonds.

That on the 9th of June, 1888, the Board of Trustees of said church adopted certain by-laws, which were unanimously adopted by the congregation. on the 13th of June, 1888. declaring that “The money bequeathed to this church by Kaspar Auch, deceased, shall form a poor fund, the interest and revenue therefrom shall be for the benefit of the poor of this church, according to the wish of the testator. The capital shall remain intact.”

That the said church elected one Owen Riedy as its pastor at a fixed salary, which they bound themselves to pay, and did not enforce the provisions of. the charter requiring members to pay contributions, so that the salary of said pastor was not being paid, and neither the elders of said church nor- its trustees performed their duties in the promises.

That contrary to the rules of the general assembly of the Presbyterian churches, the said Owen Riedy who was pastor of said church was, by the charter, made one of the trustees of said church and was re-elected a trustee every year up to and including 1897.

That in violation of the rules of the general assembly of the Presbyterian churches and of the charter of said church, parties who had not paid their contributions were allowed to vote for trustees, and persons who were in default for their dues or contributions were, in violation of the requirements of the charter, elected as trustees.

That from the time of its incorporation, said church has been unable to sustain itself, has contracted obligations towards its pastor which it was unable to meet, and is now under obligations and expenses which it is unable to meet.

That the members of said church congregation not paying their contributions, and the elders and trustees not enforcing the charter and by-laws, the salary of the pastor had not been paid to him for several years, when on the 3rd of September, 1888, the Board! of Trustees borrowed from said Auch Fund the sum of $2,370.36, at three per cent. interest, and therewith paid said pastor his back salary.

That from the time said church received said Auch Fund, the members and trustees ceased to pay contributions and every year, in order to pay the salary of the pastor and other expenses of the church, said Board of Trustees borrowed from said Auch Fund at three per cenl. without security, when on the 23rd of February, 1897, it had borrowed from said fund the sum of $8,741.43, plus twenty premium bonds. That in addition thereto, the said church through its Board of Trustees, had given to its pastor, the said Owen Riedy, in compensation for his services in collecting and managing said Auch Fund, fifty premium bonds belonging to said Auch Fund.

That in or about the month of March, 1897, three of the Trustees who had participated in the misuse and misappropriation of the said Auch Fund, in order to escape liability for their wrongful acts, virtually took possession of the affairs of said church, passed a resolution to dismiss the said Owen Riedy as a Trustee, and brought suit against said Owen Riedy for the return of all the money he had received in compensation of his services as pastor for twenty years, on the ground that said money was a trust fund and had been misapplied. That under the charter seven persons constituted the Board of Trustees, and that therefore it required four members to make a quorum,.

That the rest of the money and securities belonging to said Auch Fund, say about three thousand dollars, were taken by said three trustees, and others claiming to be the representatives of the church.

That from that time they prosecuted their suit against Owen Riedy, finally obtaining against him on the 26th of June, 1899, a judgment for $10,652.75, the full amount received by him as a salary for his services as pastor for nearly twenty years, but refusing to pay his salary, for which said church had bound itself.

That said church through its Board of Trustees had placed their church edifice in the name of said Owen Riedy without taking a counter letter from him, and used some of the Auch Fund to pay costs of court, and gave to their lawyer, Mr. B. R. Forman, a note of $450 belonging to the Auch Fund, as fees for recovering said church property.

That during the pendency of the said suit against Owen Riedy the said Trustees of said church have been misusing and misapplying said Auch Fund, lending it to the members of the Board without security, paying to C. C. Luzenberg, Esq., two hundred and fifty dollars for defending a criminal prosecution for perjury against their president, F. Manning, and paying the salary of their said pastor and the expenses of said church, and generally squandering said fund until they have now only a small part of it on hand.

That they have Issued execution against said Owen Riedy, but will hardly realize four thousand dollars on the property which they have seized — that said Owen Riedy, however, has taken a devolutive appeal from said judgment against him.

That the congregation of said church is now virtually reduced to the members of the families of the Board of Trustees, and that neither the congregation nor the elders are exercising any restraint on the Trustees, who are misusing, misapplying, and squandering a fund bequeathed for the relief of the poor, which said beneficiaries have never benefited thereby, and that some of the present Trustees were on the Board when said fund was used to pay the salary of Owen Riedy.

That said Immanuel Presbyterian Church by their acts of breach of trust have forfeited their rights under their charter, which charter should bo declared forfeited, and a receiver should be appointed to take charge of whatever is left of said Auch Fund and of the assets of said church.

The District Court rendered on said application, an ex parte order that Edgar M. Cahn be appointed and sworn as receiver of the Immanuel Presbyterian Church of New Orleans, that he take possession of all the property belonging to the Raspar Auch Fund and of the property of said corporation, with power in said receiver to sue and recover from the debtors thereof, any part of said fund which may have been loaned to them or which they may have in their possession; that he proceed with the execution of the judgment in favor of said church against Owen Riedy and sue the Trustees who participated in the misapplication of said Auch Fund, and any parties who might have knowingly received part of said fund, for the recovery thereof. That he furnish bond and security in the sum of one thousand dollars.

Defendant appealed suspensively from this order.

On filing the record here, the defendant filed the following assignment of errors:

“Now comes the defendant and appellant by undersigned counsel and assigns for error apparent on the face of the record:

(1). The State of Louisiana has no legal interest in the matters alleged in the petition.

(2). The Attorney General is legally charged with no duty in respect to the matters alleged in the petition.

(3). The civil courts have no jurisdiction or power to appoint a receiver to a live, going church corporation. It is a violation of the fundamental law separating church and State. If any power exists it can be exercised only after a dissolution of the corporation.

(4). The ex-parte appointment of a receiver to a live and going corporation is void and unauthorized by law.

(5). The Act No. 159, 1898, page 312, does not apply to church corporations, but only to business and private corporations of that character. ■

Wherefore appellant prays the order appealed from be rescinded and the proceedings herein be dismissed and for general relief.

Opinion.

Appellees in their brief say that the defendant without denying any of the facts charged, took an appeal from the order appointing a receiver.

Ail answer to this objection is that the order was granted ex parte without any opportunity afforded to defendant to resist relator’s application upon the allegations of an unverified petition, and without the production to the court of any evidence whatever in support of the same.

The allegations of the petition disclose that the defendant is a regularly organized corporation, with its property and temporal affairs in charge of Administrators or Trustees.

That the present Board is taking active steps through judicial proceedings to undo the a'cts of omission or commission of their predecessors, if such there were of which relators complain; that they have in their said capacity obtained judgment against Owen Riedy, to whom the pleadings refer, and that the judgment was in process of execution when the petition in this case was filed.

Under such circumstances we must assume that they were regularly appointed or elected under the charter. The statement made that three of the trustees had virtually taken possession of the affairs of the church; that under the charter four members were required to make a quorum, loses force in view of the subsequent allegation that the balance of the monies and securities belonging to the Auch Fund, were taken by the said three Trustees and others claiming to he the representatives of the church.

There are no parties contesting the status of these Trustees, that we are aware of, and this vague, indirect allusion to the same, has no significance.

The application for the forfeiture of defendant’s charter, and for' the appointment of a receiver, is not based upon any dissensions in the congregation or upon its property being in the hands of unauthorized agents, but upon its agents having mismanaged and still mismanaging its affairs. The case before us so far as the question of the receivership is concerned, is that of an existing corporation equipped with competent officers, having its property taken from it on preliminary proceedings, and in advance of 'judgment at the instance of parties who have no claims in, to, or upon that .property.

Corporations being artificial persons, deriving their existence directly from the State, the State has the power and'authority for good causes to take their lives from them, but it by no means follows from this that it has the right to take summarily from them either temporarily or permanently, property which they have acquired during the existence of that life; particularly property to which neither the State nor any one else has set up any adverse claims.

We do not propose to enter into any discussion as to the facts and circumstances under which and for which the State could demand the forfeiture of the charter of a religious corporation, or to decide whether it be justified in inaugurating proceedings at the instance of a private citizen, who has no connection with the church or its property; who does not claim to be a member of the congregation or concerned legally with the fund bequeathed to the different Presbyterian churches in New Orleans “to the end that (not the poor generally) but the poor of the respective churches might be cared for”.

Appellant contends that while the motive and purpose of Kaspard Aueh in making his bequest to the different churches was to benefit the poor of the different congregations, the fund bequeathed became the absolute property of the different congregations, which they were entitled to dispose of or administer free from the supervision or control of any outside parties; that the Board of Directors or Trustees were responsible for their conduct to the congregation and not to the State, and that there is no complaining member of the congregation before the court; that if the Board should fail in any way in their duty, the proper remedy was for the congregation to change them; that even if the church stood so situated towards the fund bequeathed to it as to subject it to the possibility of having it taken from its control, and the facts of the case would warrant such a course, the mismanagement of the fund and its withdrawal from the church, would not carry with it the loss of its charter, as the administration of the fund was not part of its charter obligations, but a mere incidental matter thrown upon it by accident; that the State was without authority to connect this special matter with the general charter obligations of the church.

As the action of the court in this particular case will be made to turn upon the ex parte action of the District Court in granting- tho order appealed from, we reserve the expression of any opinion upon the questions raised until the ease shall reach us, on appeal, after trial upon the merits. The court being bound to express its opinion only so far as to show the grounds upon which it decides the application, we will confine ourselves to the point we are called upon to decide, without going into the merits of the case at large (High on Keceivers, 738).

The remedy of receivership is part of the general preventive jurisdiction of courts of equity and prospective rather than retrospective in its operation, being invoked on suitable occasions for the prevention of future injury rather than for the redress of grievances already committed.

The object sought in appointing a receiver pendente Hie is to prevent injury to the thing in controversy, the res, and to preserve it unimpaired for the security of all parties in interest, that it may be disposed of in accordance with the final decree of the court (High, Section 737).

Long acquiecence in a particular past grievance, without effort to redress it, is generally held to be a complete bar to relief sn equity as a substantive ground for the appointment of a receiver, or the granting of an injunction (High. Section 742).

It has been held under the Code of Procedure in New York, upon proceedings by the Attorney General in the nature of a quo warranto for the dissolution of a corporation and the forfeiture of its franchises, that the court has no power to appoint a receiver before judgment of forfeiture, although an injunction might properly issue, to prevent the corporation from doing any illegal act or from disposing of its funds (High, Sections 307, 751).

It is certainly a debatable question independently of the consideration of statutes whether the State, on bringing an action for the forfeiture of a charter, is concerned legally in the subject matter of the corporation pendente lite any further than to seek to withdraw from it the rights and privileges which it had conferred upon it, leaving the legal results to follow from such withdrawal to be worked out through and by the parties in interest, or as the consequence of the situation which would be developed at that time, unless it should have itself in some particular case a special direct interest in the property of the corporation, or the administration of its affairs, pending the litigation.

Let this be as it may, we are' of the opinion that the order -appealed from in this case was improvidently granted ex parte upon the allegations of a petition unsworn to, and upon the production' before the court of no evidence to support or sustain the same.

The ease falls directly under the decisions in Mestier vs. Chevalier Paving Company, 51 Ann., 142; Ober vs. Excelsior Planting Company, 44 Ann., 571; High on Receivers, Section 346; In re Cigar Company, 50 Ann., 793, 794; State ex rel, Columbia Debenture Company vs. Judge of Division “B,” 51 Ann., 468.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the order or judgment of the District Court, of July 12, 1899, appealed from appointing Edgar M. Cahn, receiver of the Immanuel Presbyterian Church of New Orleans, be and the same is hereby set aside and the cause of the State of Louisiana vs. Immanuel Presbyterian Church, No. 59,836, Civil District Court, Division “B,” will be further proceeded with in the District Court according to law.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 13,310.
    Comptoir National D’Escompte de Paris vs Board of Assessors.
    Syllabus.
    Non-negotiable notes representing loans in Louisiana, made by the agent of a corporation, doing business therein, when kept within the State by the agent, may be subjected to taxation by the law of the State in which they are held. City of New Orleans vs. Stempel. (175 U. S. Reports, 309.; Blue-fields Banana Company vs. Board of Assessors, 49th Ann., 43.
    APPEAL from the Civil District Court, Parish of Orleans.— St. Paul, J.

      Harry H. Hall for Plaintiff, Appellant.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for the City of New Orleans, Defendant, Appellee.

      Francis C. Zacharie for the Tax Collector and Board of Assessors, Defendants, Appellees.

      Edwin T. Merrick, on Petition for Rehearing, amicus curiae.

      Statement op the Case.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaitiff is declared in its petition to be a corporation duly organized under the laws of the Republic of France, a citizen thereof, and therein domiciled i-n the City of Paris, and represented in the suit by its agent, Albert Breton.

Its allegations are that during the year 1897, petitioner, from its said domicile in Paris, through its said agent, transacted in the City of New Orleans a brokerage business, paying thereon a due and proper license tax.

That on the assessment rolls of the First Municipal District, Third Representative, Fifth Assessment District, Square No. 227, it was assessed for the year 1898, as follows:

“Moneys” loaned on interest, all credits, etc............$50,000.00

Money in possession ..................................‘ 50,000.00

That all “credits” for “moneys loaned on interest” are taxable at its domicile in Paris, where it pays its taxes, and not at the domicile of its debtors in the City of New Orleans, and that, therefore, said item “money” loaned on interest, all credits, etc.,” was and remains- an illegal assessment.

That its moneys in possession did not, during the year 1897, exceed, •on an average, more than $20,000.00, nor did it exceed that amount at the time for making the assessment in 1898.

That it made due and timely application to the Board of Assessors for the Parish of Orleans, and later to the Committee on the Revision of Assessments for the Common Council to cancel, from the said assessment rolls of 1898, the assessment of “money loaned on interest, all credits, etc., $50,000.00,” and to reduce the assessment made against it of “money in possession” from $50,000.00 to $20,000.00, and its applications to cancel and reduce said assessments were, without just cause, rejected.

Petitioner annexes copies of said applications.

Its prayer is that the Board of Assessors, by its president; the State of Louisiana, by its Tax Collector, and the City of New Orleans, by the Mayor, be cited to appear and answer this petition, and that after due proceedings had, petitioner have judgment in its favor, ordering the cancellation from the assessment rolls for 1898, of the assessment against it for “money loaned on interest, all credits, etc.. $50,000.00” (fifty thousand dollars), and reducing the assessment against it of “money in possession,” $50,000.00 to $20,000.00 (twenty thousand dollars), and for costs, and all general relief.

The defendant answered by a general denial.

The District Court rendered judgment' partly in favor of the plaintiff, The Comptoir National D’Escompte de Paris, and partly against it as follows:

“It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, The Comptoir National D’Escompte de Paris, and against the defendants, The State Tax Collector for the Upper or First District of New Orleans, The Board of Assessors for the Parish of Orleans, and the City of New Orleans, ordering and decreeing that the assessment for the year 1898, against plaintiff on “money in possession,” be reduced from fifty thousand dollars to twenty thousand dollars, and that as to the item “money loaned on interest, all credits, etc., fifty thousand dollars,” the demand of plaintiff be rejected.
“It is further ordered and decreed that the ten per cent, attorney’s fees allowed by law upon the State tax on said amount of' ‘money loaned at interest, all credits, etc.,’ be taxed against the plaintiff, and that all costs of this suit be paid by defendants.”

Plaintiff appealed.

Alfred Breton, agent of the plaintiffs in Louisiana, being upon the stand as a witness, testified substantially as follows:

The plaintiff is a French corporation domiciled in Paris. Its business in Louisiana through witness’ agency was brokerage in money, stocks and bonds,- It has no capital in Louisiana. If the .company loans- money on the agricultural products of the State, it receives for the money which it loans, what are called exchange notes, of which the following marked “O 2” are the regular forms:

$........ 189....

........ promise to pay to Comptoir National D’Eseompte de Paris........

for value received with interest at the rate of... .per cent, per annum. until paid.

This note is not negotiable and is secured by pledge of the securities mentioned on the reverse hereof, and in ease of its non-payment...... or should the drawer hereof when called on, refuse or fail to keep the margin hereon good, the Comptoir National D’Eseompte de Paris is authorized to sell the said securities at public or private sale, without recourse to legal proceedings, and to make any transfers that may- be required, applying the proceeds of sale towards payment of within note.

C-2:

No.... New Orleans,..........189..

Received from the Agent of the Comptoir National D’Escompte de Paris .................................................. dollars, on account of.........................exchange on.............. arising from shipment and from measures taken preparatory to the shipment of ................................................... per ...................................for ................ which is covered by policies of Insurance against Fire and Marine Risks and which policies are hereby bound and pledged specifically to ..........for the fulfillment of the Contract to furnish the Exchange agreed to and for the money here advanced in case of the non-completion of the contract from any cause. $........

The company does not loan' any money except upon notes of that kind or obligations of that character. Money is loaned principally to cotton and grain people; it lends in New Orleans, Shreveport and all around the Southern States. At least one-half of the money loaned is loaned on cotton and grain in transit which is not in New Orleans, As a rule the money loaned is on cotton and grain to be exported to Europe.

Witness buys foreign drafts on the other side during the time the cotton is in transit; they want money because here as a rule they pay for the cotton as against the railroad bill of lading, and the company through witness loan thereon money; that is for the cotton outside of New Orleans.

The company takes a pledge of the bill of lading and the cotton is brought to New Orleans, Mobile, and Galveston; to different parties. The foreign bill of lading is attached to the draft. The money is loaned on that bill of lading for the draft drawn for the cotton or grain. That is the company’s business, for cotton in transit. For this cotton and grain that the company advance on the company takes the Bill of lading first, then witness buys a foreign draft; the railroad bills of lading are exchanged for the ship’s bill of lading; they simply purchase the bills of lading.

As to other advances that the company makes it takes documents such as the two marked “0-1” and “0-2”, offered in evidence, different in different cases.

Supposing the company to loan ten thousand dollars to a man in the country, witness takes the receipt for the cotton where it is to be shipped in a few days, and where the cotton is not to be shipped in a few days, he takes the note, a note like the one marked “C-l”.

The notes are not sent to Paris. Witness keeps them on- trust; they are not negotiable; they are kept in trust for the account and benefit of the Comptoir in Paris. Witness is simply a clerk, and has no individual interest in the business. The company has no capital in Louisiana.

Being asked whether he could tell what monies he had at any time in the handling of his business and wants, he answered “that the balances were returned to Berlin, London and New Tork, from there.” Being asked how he got it, he answered: “By drawing according to credits — the Comptoir had arrangements for it”.

He further testified that the average amount of money he had in bank, year in and year out, was twenty thousand) dollars; that the company had been doing this business in Louisiana since 1895, that the highest assessment which had been placed upon it by the Board of Assessors prior to 1899, upon the company’s “money in possession in bank, etc.,” was twenty thousand dollars altogether; they raised in 1898 to. fifty thousand dollars.

The company had no more money in 1898 than before. At the time the present assessment was made in March, 1898, the company did not have more than $20,000. The company made a verified application for reduction of assessment.

The company never loaned money on due bills, to cotton factors, it loaned money to factors on cotton, not due bills, on cotton in presses. Witness supposed all the cotton was exported. The factors, in many instances, came back, paid the loans and took back the cotton receipts.

The company had loaned money on domestic products not exported from the city, and things of that kind; people had borrowed money in Louisiana and paid it back without any foreign exchange appearing in the transaction, but not frequently.

Being asked on cross-examination, whether the company’s entire business was confined to foreign bills of exchange, witness answered “that everything was foreign exchange with him”. Being' asked “whether there was any foreign exchange in loaning to cotton men?” he answered: “Yes, when he got the money from Paris.”

Witness stated the company loaned money to people in Louisiana and they paid it back there; they gave the company an obligation to show that they owed the company that money; as a rule the company collected it when it was due (the note), witness was agent for the company with full power of attorney, to represent it; he was no more than a mere clerk, he could draw more than twenty million if he chose. If a person wanted ten or twenty thousand dollars he did not send the papers to Paris to find out whether he could make the loan. He had no discretion, the company wrote to him what to do. The company loaned money on sugar. If a man went to him with a warehouse receipt for one thousand hogsheads of sugar and wanted to borrow $20,-000 on it, he could lend it without writing to Paris, if the house was good and according to the instructions he had received beforehand.

If his instruction from Parish should say he could loan on sugar andi cotton and grain, he -would loan the money if he thought the collateral was good.

He did not know whether the sugar was exported. The parties would come in, pay their loan and take the receipt away, and pending that time witness held the receipt, and the note. The company did the same thing with cotton and grain. A great deal of the company’s business was done in that way.

In addition to this, witness bought bills of exchange on London and Paris and other places, to which are attached bills of lading; that was a large part of the company’s business.

The company did not handle commercial paflper, it did not make any local discounts. It.had loaned money on State or city bonds, but very seldom. Sometimes the cotton people got rid of their cotton and wanted some money to advance to the interior, and they replaced their cotton by bonds, but very seldom; it had never advanced to the banks in New Orleans; it had never loaned on United States bonds, but would do so willingly.

When money was loaned, secured by collateral bonds, witness would keep the securities and the notes attached in Louisiana; he would kceip them himself for the Comptoir; the notes were kept here, not sent to Paris.

When loans were made he reported them to Paris; he would not report them after they had been paid back. He did not, in making loans, fix any rates of discount or rate of interest; he did not discount.

The company knew of the loans ten days after they were made; the money was often paid back before the mail reached Paris.

Witness drew bills of exchange on Paris for the funds he required here; he deposited in New York as a rule; he kept some money to his credit in bank in New Orleans; an average of about twenty thousand dollars;-he could obtain a loan if he wanted it; witness meant that if all his outstanding checks were paid, there would only be twenty thousand dollars to his credit in bank.

His cheeks on the New Orleans banks amounted in the course of a year in the millions. There was this average of twenty thousand dollars without reference to any special time; very often he was overdrawn. The $20,000 was about the average balance he carried in bank, after deducting the checks that were outstanding.

The company loaned money on cotton, sugar and grain, on warehouse receipts and bills of lading; it loaned money also on city and State and United States bonds. Witness knew of no other character of loans on which it advanced money; it did not lend money to planters or refiners or manufacturers; or loan on mortgage or vendor’s liens. The average balance in bank, kept in bank, was $20,000, but the deposits in the year ran up in the million.

Witness stated that on one occasion he had loaned to Mr. Nieholls on collaterals, premium bonds and State bonds, different collaterals, that the company would not loan on goods, ware and merchandise; that he would not loan on them but that he would sometimes accept them against a credit because sometimes a client wished to make the exchange of a collateral; he would allow a substitution of merchandize for bonds, but only for the time being so as to enable parties to handle their goods.

The company was not carrying on a general loan business; three-fourths of the business was cotton and grain; the company was not carrying on a general’ loan business outside of the foreign exchange business; the whole thing was a foreign exchange business and there was nothing of that kind in the company’s books-

The following questions were asked by the State and answered by the witness:

“Q. — You say that the foreign exchange business is when a person comes with warehouse receipts for sugar or anything else, that not having more than twenty thousand dollars, in case you desire more you draw a bill of exchange on Paris or London or New York?
“A. — Yes, sir.
“Q. — And thereupon you take the obligation of this person together with his security, and you keep them here in your own vault?
“A. — Yes, sir.
“Q. — It is paid here?
“A. — Yes, sir.
“Q. — And if it is not, you take the collateral ?
“A. — Yes, sir.
“Q. — That is what you call it?
“A. — Yes, sir.
“Q. — You don’t refer the matter to Paris?
“A. — Oh, yes.
“Q. — If you haven’t got the money here you draw a bill of exchange on Paris?
“A. — Yes, Paris- — -Berlin, maybe New York — any place.
“Q. — You get this bill of exchange cashed here?
“A. — No, not here, but in New York, as a rule, for I buy exchange there.
“Q. — And you take this money and you loan it out?
“A. — Yes, sometimes I loan it, and sometimes the clients draw it themselves. [7
“Q. — In other words then, all the foreign exchange has to do with this portion of the business, is that you get the money through bills of exchange ?
“A. — Foreign exchange — I get the money through foreign exchange. Yes, sir; I get it through foreign exchange.

By the court:

“Q. — In loans of that sort when you hold documents such as 0-1 and 0-2, do they as a rule average more than fifty thousand dollars ?
“A. — No, sir; not at one time.
“Q. — Have you any idea of what they average the year through?
“A. — A big amount.
“Q. — I mean the amount on this kind of note and this sort of contract that you have on hand at any one time; are they as much as $50>000 on an average? . ■
“A. — Yes, sir; and more sometimes.

By Mr. Hall (plaintiff’s counsel) :

“Q. — I understood you to say that the Comptoir keeps no money here for the purposes of this exchange business, but that when you make a loan you draw on Berlin and Paris or whichever is most available and you sell that exchange to a bank or cash the exchange here, or in New York as the case may be, and that money is immediately paid on that loan and therefore there is no need of keeping a bank account of any large sum?
“A. — Yes, sir; that is right.
“Q. — And when that money is loaned on foreign bills of exchange or bills of lading, they are sent to Paris immediately?
“A. — -Yes, sir; and different places by the first mail.

Admission.

It is admitted that the undisputed part of this tax for the year 1898 has been paid without prejudice to the rights of any party to the suit, and the receipt of the city for the sum of $414, being taxes upon $20,000 money in possession, and that the offer was made to pay on the same tax to the State tax collector and it was refused.”

By Mr. McLoughlin (Assistant City Attorney):

“Q. — The question that was asked you and the answer you gave in reference to bills of exchange only refers to the bills of exchange you purchased here?
“A. — Yes, sir.
“Q. — You buy bills of exchange outright?
“A. — Yes, sir; through the bills of exchange I send the money back from where I borrow it.
“Q. — You buy bills of exchange outright?
“A. — Yes, sir.
“Q. — You don’t mean you loan money on bills of exchange on Europe in New Orleans.
“A. — No, sir.
“Q. — You don’t loan money on bills of exchange?
“A. — No, sir; if it is not in proper form or the goods are subject to depreciation, I may loan part of it.”

Opinion.

We were told from the bar that the only question submitted to us for decision is, whether the non-negotiable notes taken and held by the plaintiff under the circumstances disclosed by the evidence, are liable to taxation-; that should the court be of the opinion that they are taxable, the amount claimed from the plaintiff on that item is correct.

. Plaintiff’s contentions are summarized in the syllabus of his brief, as follows:'

“Plaintiff is a French corporation domiciled in Paris, France. It is engaged in the transaction of an exchange and brokerage business in the city of New Orleans, being here represented by an agent.
“It loans money, upon bills of lading covering cotton and grain sent from interior points of Louisiana and neighboring States, to Galveston, New Orleans and Mobile, for shipment to Europe.
“And sometimes it loans money on warehouse receipts of such agricultural products, while stored preparatory for shipment.
2
“All the money which it lends is raised by selling its drafts of exchange to New Orleans banks, such bills of exchange being drawn upon Paris, London, Berlin, or New York, wherever most advantageous, and ihe money thus borrowed from the banks is paid by plaintiff to the holders of the cotton or grain in question.
3
“To meet these drafts of exchange, while the cotton and grain is on its way to Europe, plaintiff buys drafts of exchange on the foreign market upon which its original draft was drawn, and with the proceeds of said purchased drafts of exchange meets its own drafts.

4

“In the few instances when this course ia not pursued, plaintiff raises money by drawing a draft of exchange on itself in Paris, and has the same 'cashed by local banks. It has no funds nor capital of any kind in the city of New Orleans, except an average fluctuating balance growing out of these transactions, which in no case and at no times, exceeds $20,000, and upon this $20,0000 it pays'taxes as upon money in hand.
5
“Plaintiff', therefore, for all funds which it utilizes in this city and the adjacent States, is primarily a borrower from local banks, and ultimately, it repays its loans with money raised in Europe or New York.
6
“For the moneys loaned in this way it receives non-negotiable promissory notes of hand, made payable to it, and not to order. It has been assessed for the first time in 1898, upon these notes as upon ‘credits’. Such assessment and the consequent tax are illegal, because such credits are incorporeal and intangible, and can have no independent situs of their own; but necessarily follow and attach to the domicile of the foreign plaintiff in France.
7
Intangible property has no actual situs. If a credit for the purpose of taxation be assigned a situs, it must be the place where it is owned, not the place where it is owed. To make it follow the debtor instead of the creditor is to tax property instead of wealth. 25 Ohio State, 1; 3 Oregon, 13; 2 Oregon, 327; 16 Cal. 167; 23 Cal. 138; 3 McCord, 378; 50 Ga., 387; 33 Ga., 113; 23 Ga., 566; 3 Colorado, 349; 96 U. S., 445; 9 Wheaton, 907; 15 Wallace, 320; 19 Md., 22; 29 Md., 49; 7 Ohio, 52; 10 Allen, 101; 28 Vermont, 188; 42 Conn., 426; 25 Cal., 602; 38 Cal., 466; 2 Butcher, 184; 4 Woods, 207; 12 Iowa, 539; 22 Fed. Rep., 602; 11 Ann., 268-282; 38 Cal., 461; 35 Cal., 282; 29 Cal., 533; 25 Cal., 603; 39 Conn., 176; 25 N. J., 531; 26 N. J., 564; 54 Iowa, 57; 96 U. S., 432; Cooley on Taxation, 1; 15 Wallace, 319; Cooley on Taxation, 21; 52 Conn., 26; 426 Ohio, 1; 101 U. S., 499; 27 Grattan, 354; 173 U. S., 203; 15 Wallace, 323.
8
“As held in 15 Wallace, 323, the true test of the taxability 'of a credit- held by a non-resident is:
“ ‘Does such credit, by general usage, acquire the character of, and is it treated as property, and does it pass as money wherever it may be?’
“State and municipal bonds have this character, and so, possibly, checks upon solvent banks.
9
“Act 98 of 1886, p. 134.
“Act 85 of 1888, p. 111.
“Act 106 of 1890, p. 121, and.
“Act 170 of 1898, only provide for -the taxation of property ‘situated within the State of Louisiana.’ ”
And the Legislature has not attempted, by any enactment, to localize credits, held by non-residents, the act simply providing that all credits shall be taxed; that provision being limited by the general statement, in all the revenue acts, that only property in the State of Louisiana is liable to taxation.” '

The evidence establishes that the plaintiff corporation is pursuing in the city of New Orleans a continuing business through an agency there; that it loans money upon collaterals of various kinds for which the borrower gives the compjany his non-negotiable promissory notes.

'These notes received by the agent are kept by him, until maturity, wi en they are either taken up by payment in money by the debtor or through exhaustion of the collateral.

I he monies so received are reinvested in other loans.

It is claimed that the plaintiff never sends its own monies into this State and there lends them, but that the monies loaned are obtained through foreign drafts or bills of exchange.

We think the particular manner or instrumentality by which the monies usdd by plaintiff in the course' of its continuing business in Louisiana is obtained is a matter of no moment or significance in the consideration of the question which we are now dealing with.

It, beyond question, loaned monies in Louisiana which for the purposes of the loans were the company’s monies, and the borrowers give ' the company their own non-negotiable promissory notes to represent money received from the company. The notes represent ah equivalent amount of money of the-company in Louisiana.

Plaintiff claims that these non-negotiable notes are to be considered as being constructively in France, the domicil of the plaintiff company; that a promissory note follows as much the domicil of the cred'itor as does an open account. That the rule mobilia sequuntur personam applies to them and they are no more taxable than if they were in fact in the vault of the company in Paris. This rule in its application to the subject of taxation has been recently exhaustively considered by the Supreme Court of the United States in the ease of City of New Orleans vs. Stempel, Guardian, in which our own decisions as well as those of others were collated.

The syllabus of that decision declares that notes and mortgages, the owner of which is domiciled in another State, when they are kept within the State by an agent, may be subjected to taxation by the law of the State in which they are held”.

A non-negotiable note is certainly sufficiently concrete in form to be made an object of taxation. The fact that it may be less valuable in fact than it appears on its face, may affect the estimate to be placed upon it for assessment purposes, but that question is something other than the question of its being a proper object of taxation.

If a person domiciled abroad were to die leaving non-negotiable notes in this State in the hands of an agent, the presence of these notes in Louisiana would authorize the opening of the succession in Louisiana for the protection of Louisiana creditors.

We think the State has as much legal right to subject them being here to the payment of the contribution which it justly claims from all parties receiving the protection and benefit of its laws, who operate their property here for their individual gain and benefit, as any creditor would have.

The rule mobilia sequuntur personam is subject to numerous exceptions. Thus, in Prance, it has been held that “les prelevements accordes aux heritiers Franeais sur les biens sitúes en France comme indemnite des exclusions resultant de la loi etrangere peuvent etre exerces meme sur les valeurs payable par des banques etrangeres quand les titres soit nominatifs soit au porteur ont ete laisses en France par l’auteur eommun”. (Civ. C. 27, Auot. 1850.)

We think the facts of this .ease bring it squarely under the decisions in Bluefield Banana Company vs. Board of Assessors and City of New Orleans, 49 Annual, 43, and Parker vs. Strauss, 49 Annual, 1173.

In the former case this court referring to the corporation claimino; exemption said:

“The foreign corporation had an agent here, where it received and where it sold fruit and received the price for the same. Part of the proceeds were withheld in the hands of the agents for purposes incidental to the prosecution of its business, and part.deposited to the credit of the company, subject to the' check of its local agent. Also for the prosecution of its business here, and for such other purposes as the company might direct it to be applied to. The company transacted business in New Orleans precisely as did resident business men and firms. It received all the advantages to be derived from the State and city governments which residents received, and we see no reason why it should not be taxed, as claimed in this proceeding, unless there be insuperable legal objections in the way. We find a statute of the State, which by its terms brings them under the operation of State and city taxation, and we are bound to give effect to its provisions unless they be in derogation of the Oonstitution. The uneonstitutionality of the Act is not pleaded, and we of ourselves, see >10 unconstitutional features in it. The rule mobilia sequuniur personam is a fiction of law, not resting of itself upon any constitutional foundation, and which gives way before express laws, destroying it in any given case, where constitutional requirements themselves do not stand in the way.

There is no parelellism between this case and that of Clason & Company vs. The City of New Orleans, 46 A., 1.

The facts of the case are entirely different. Here the foreign corporation is engaged in a regular ■ business investing and re-investing the monies through an agent in this State.

In the other case, Clason & Co. were merely the agents of an English firm for the purchase of cotton to be shipped by them at once to the firm in Europe.

Instead of paying for this cotton by means of bills of- exchange transferred to the vendors which they themselves would have cashed, the agents, for convenience, had the bills cashed, deposited the amount in bank and drew against the funds in favor of the sellers.

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

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,373.
    Joseph L. Bourdette vs. Adolph H. Sieward.
    Syllabus.
    1. The legal right of a stockholder of a corporation to examine the corporate books is a right which gives him a cause of action at law for damages against the corporate, officers if they refuse to allow the inspection.
    2. Por every invasion of right there is a remedy, and that remedy is compensation for logs sustained. There was an invasion of plaintiff’s right when defendant denied him access to the books.
    3. Where the impossibility of the administration of proof to sustain allegations legally sufficient does not appear with certainty, the cause snould be sent to trial on its merits and not dismissed on exception of no cause of action.
    4. Where the legal sufficiency of allegations to support a judgment is put at issue by an exception of no cause of action, it were safer practice in case of doubt to let the ease go to trial on its merits.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      Clegg & Quintero for Plaintiff and Appellant.

      Buck, WalsTie & Buck for Defendant and Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This is an appeal from a decree maintaining an exception of no cause of action and dismissing the demand of the plaintiff as in case of non-suit.

Eor the purpose of the trial of the exception the allegations of the petition are to be taken as true.

The question, then, is do they disclose in law a cause of action, and was the plaintiff entitled to administer proof in support of same?

The demand is for $5800 damages.

The cause of action as set out in the petition is, substantially, as follows:—

Plaintiff is a large holder of stock in the New Orleans Gas Light Company. His holdings- at this time aggregate 560 shares. In February, 1897, he was a large holder of this stock — owning then 398 shares.

Defendant is president of the Gas Company, and was its president through the year 1897. As such he was and is the custodian of the books of the company. ,

In February and March, 1897, and at various other times in that year, plaintiff, being a stockholder, claimed the right to inspect the books of the company. He made demand repeatedly upon the president to be permitted access to the books for this purpose. It was refused him.

He, thereupon, applied for a writ of mandamus to compel defendant to accord him this right of inspection. Defendant resisted the application, and stubbornly contested it through the District Court and this court.

The judgment of both .courts was favorable to plaintiff and the writ was made peremptory. 49 La. Ann. 1556.

Defendant still resisted, raising questions of the construction, scope and effect of the judgment. •>

A rule for contempt became necessary, was taken, and on trial was made absolute. But the delays resulting had brought the time down to January, 1898, before plaintiff was finally accorded full access and right of inspection of the books.

It is averred the information sought from the books was necessary to enable plaintiff to determine whether at that time — in February, March and June, 1897 — lie would sell his stock or buy more; that if he had then obtained the information which an inspection of the books would have disclosed, he would have sold his stock at the then ruling prices, and would not have bought more stock; that being denied access to the books and thus failing to obtain the information so necessary to intelligent action on his part in reference to the stock he held and other proposed dealings in stock, he did not sell his then holdings, but on the contrary bought other shares; and that had the right of inspection he demanded been accorded, his action would have been, based on the disclosures of the books, to sell his stock, for which he could at that time have obtained in the market $129 per share, whereas he has not been able, since the books were opened to his inspection, to obtain more than .$112 per share. .

That an inspection of the books would have apprised him the president of the company (defendant herein), several of the directors and other large holders were selling their stock; that such information would have determined him to sell his holdings and to buy no more at that time; and that he would thus have been saved the loss which he sustained by the ensuing depreciation in the value of the stack.

That the books would also have furnished the information that the president had, within the few years then last passed, expended $50,000 of the company’s funds, which sum was not accounted for, and that this circumstance would also have determined him to sell his stock and not to purchase other shares.

From these averments it appears that plaintiff’s contention is he was damaged in two ways. First, that for want of information, knowledge and facts illegally denied him, he did not sell certain shares of stock and thereby lost a profit on the same; and, second, that by reason of his being kept in ignorance of salient faets through the denial of inspection of the books, he purchased other shares of stock which proved to be worth greatly less than the price paid, and which he would not have bought had his right of inspection not been denied.

In effect, he .charges he was put in a false position by the 'act of defendant and loss ensued to him as the direct consequence of this act or omission of duty on part of defendant.

In effect, further, he charges that if defendant had not suppressed the information, the additional stock would not have been purchased, and that the consequent loss is the defendant’s and must be borne by him. It is an allegation of the violation of right and duty by defendant, which act, constituting the violation, injured plaintiff in just so many dollars.

The impossibility of the proof of this does not appear with certainty, and plaintiff should have, at least, been given the opportunity to prove it by going to trial on the merits.

What will be the final outcome of the ease will depend on the proof administered and on the character of the damages suffered, whether sufficiently direct and proximate to warrant recovery, or too remotely consequential, speculative or uncertain to justify it.

But the exception should not have been sustained; plaintiff should not have been thus cut off at the threshhold of his case.

Let the case go to trial on its merits; let’s see what the testimony discloses.

It may be plaintiff may show (if it be, competent for him to do so under the averments, as to which we express no opinion) that the defendant was informed, when he denied the plaintiff the right of inspection, when he thus suppressed the information to which plaintiff was entitled, the latter proposed to buy stock and that if the price went down he would hold defendant for the difference.

If this proof be administered, whether or not it will warrant a judgment for damages we do not now determine. But it would be matter more properly determinable by final judgment on the merits than upon consideration of an exception of no cause of action.

One of the contentions of defendant is that plaintiff still holds all of his shares of stock, has disposed of none, and as a consequence he has, as yet, suffered no loss, and non constat that he will suffer any.

There seems to be no allegation of the petition upon which this contention is based, and no evidence appears in the record to that effect.

But if this be so, and whether, if it be true he still holds his stock,that fact precludes recovery even though there be proof of depreciation of value, it is matter -of law which were better decided after trial on*the merits, with all the proof in, than now. See Byrne vs. Bank, 9 R. 434.

■ The legal right of a stockholder of a corporation to examine the corporate books is a right which gives him a cause of action at law for damages against the corporate officers if they refuse to allow the inspection.

Cook on Corporations, Vol. 2, §512; State ex rel. Bourdette vs. New Orleans Gas Co., 49 La. Ann. 1556.

For every invasion of right there is a remedy, and that remedy is compensation for loss' sustained. Here there was an invasion of plaintiff’s right when defendant refused access to the books.

It is ordered and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that the exception of no cause of action be overruled, and that this cause be remanded to the court a qua for further proceedings according to law.

Monroe, J., takes no part.


author: Monroe, J.

text:
    No. 13,384.
    Receivership Sheets Lumber Company, Limited. Final Account of Receivers. Opposition of I. Baer, Ouachita National Bank, et als.
    Syllabus.
    1 Creditors, who stand by and make no objection whilst the property of their debtor, a corporation in the hands of receivers, is sold by the sheriff under order of the court, and who acquiesce in the manner in which such sale is conducted, will not be heard upon an opposition to the receivers’ final account, filed long afterwards, to complain that the sheriff did not conform to the terms of the order, and sold in lots when he snould have sold in block.
    2. A receiver who buys property of the estate under his administration, when sold under order of court, will be held liable for at least the appraised value of such property when the sale is not attacked for nullity.
    3. A receiver, who is a creditor, is not permitted to obtain an advantage by appropriating the assets in his hands to the payment of the debt due him. He must account to the court for such assets and take his chances, as to the payment of his debt, with other creditors similarly situated.
    4. The privilege accorded by Act 145, of 1888, in favor of saw and planing mill, etc., employes, is barred by the prescription of thirty days from the maturity of the debt. Where persons are employed at a certain amount per month, it will be presumed, in the absence of proof to the contrary, that their salaries become due at the end of each month. But, where receivers are appointed, the salary pro tanto for the current month becomes due at once.
    5. Receivers are not permitted to expend money which comes Into their hands at discretion, and where such expenditures are not authorized by the court, and do not appear to have been of benefit to the creditors, they will not be allowed as credits.
    6. Where a receiver shows want of capacity in the management of property entrusted to him, and a lack of appreciation of his obligations as receiver, his claim for compensation may be. rejected or reduced.
    7. The amount to be allowed as fees to counsel employed by the receiver is to be determined by the circumstances of the case. But, where tne same counsel represents the receivers, and also a mortgage creditor, fees- will not be allowed both ways.
    APPEAL from the Fifth Judicial District, Parish of Ouachita— Madison, J., ad hoc.

      Hudson, Potts & Bernstein and Wise & Herndon for Receivers, Appellees.

      Stubbs & Bussell for Ouachita National Bank and Mrs. E. Arrant, Opponents, Appellants.

      Oherubusco Newton for Trimble & Baulkman, Opponents, Appellees.

      Andrew Augustus Gunby for Jos. C. Branch, A. W. Bird, Joseph Bowling & Co., Limited, and Lumber Trade Journal, Opponents, Appellees.
   The opinion of the court was delivered by

Monroe, J.

The Ouachita National Bank and Mrs. Elvira Arrant have prosecuted appeals from the judgment of the District Court upon their oppositions to the final account filed by the receivers in this case, and the receivers have answered, praying an amendment of the judgment.

The grounds of opposition are multifarious, and can be be more intelligently considered after a general statement of the case presented by the record.

The Sheets Lumber Company, Limited, was incorporated in 1895, and engaged in business at Monroe, in the parish of Ouachita, where it owned a saw and planing mill plant, together with a residence and certain adjacent land. In May, 1897, upon the application of a creditor, and with the concurrence of other creditors and of the company and its stockholders, John P. Parker and C. A. Downey were appointed receivers, and an inventory was taken of the assets, and filed, together with a schedule of the liabilities, from which it appears that the assets were valued at $61,688.41, and that the liabilities amounted to $48.-784.63.

A few days after their appointment, the receivers obtained an order from the court a qua “to operate or, lease, as appears most profitable, the saw mill plant and planing mill * * * and also to purchase a stock of saw logs”, etc.

They consulted with some of the large creditors, however, and decided not to operate the saw mill, but to confine themselves to operating the planing mill, in so far as to work up, into merchantable condition, a quantity of lumber which formed part of the assets of the company; to disposing of the lumber so prepared, and to putting the plant in order for the purpose of a sale. They proceeded upon the buna thus- indicated during the months of June, July, and part of August, employing such labor and making such repairs as they thought advisable, operating the planing mill, and selling, at private sale, the lumber prepared by them, as well as that which they found on hand, or purchased to fill orders. In the month of August, they presented a petition to the judge a quo, representing that they had sold nearly all the lumber, but had been unable to find a purchaser for the plant; that the buildings and machinery were deteriorating, and that it would be advisable to sell the entire property at public sale. And, upon August 23, 1897, the judge made an order in the following terms, to-wit:

“ The foregoing application having been fully considered, it is or- “ dered and decreed that the sheriff of the parish of Ouachita proceed “ to sell in the manner of judicial sales under execution, all the prop- “ erty, real and personal, belonging to the Sheets Lumber Company, “ Limited, for the purpose of paying the debts of said corporation. It “ is further ordered that the terms of sale of the real estate shall be “ one-third cash, and the balance in six and twelve months, secured by “ special mortgage, and vendor’s lien upon the property sold; the per- “ sonal property to be sold for cash.”
“It is further ordered that the real estate be sold in two lots; the “ residence with the five acres on which it is situated and' which is now “ mortgaged to the Monroe Loan and Building Association to be sold “ in one lot, separate from the rest of the real estate, and that the saw “ and planing mill be sold in a separate lot from that of the residence “ * * * That said sale be advertised in the Manufacturers’ Record “and Lumbermen’s Journal, in addition to the local newspapers in “ Monroe”, etc.

Under this order, the property was advertised to be sold October 2, 1897, and upon that day, the sheriff offered it — that is to say, he began by offering and selling the residence and the five acres upon which it stands, which were adjudicated to R. B. Blanks for $3050.00.

The remaining real estate, considered with reference to the manner in which it appears upon the inventory, consisted of fifty-eight acres of land appraised at...................:...............$1,994 00 One-fourth interest in 147 acres ...................;. .. . 595 00 Saw mill, machinery, ground, etc.........................19,854 45 Planing mill, machinery, ground, etc....................15,520 00

Instead of selling this property as one lot, the sheriff appears to -have understood the order under which he was proceeding to be more particularly directed to securing a separate sale of the residence rather than the sale of the rest of the real estate in block; hence, after selling the residence, his idea was to proceed with the sale of the other property in lots as it appeared upon the inventory, and he, accordingly, next offered the fifty-eight acres, which were also adjudicated to R. B. Blanks, for $1425. He then sold a lot, of one hundred gallons of oil; and then, as appears from his return, he “continued to cry, for a reasonable length of time, the remainder of said property, and each piece thereof separately, and there appearing no one who would bid the amount of two-thirds of the appraisement for any piece thereof’'", he declared the sale closed.

The evidence shows that several of the creditors were present at this sale; that one of the counsel, who represents the two opponents now before us, and who, as we understand it, then represented them, was present; and that the judge was within easy access; but that no suggestion was made to the sheriff, or to the judge, that the former was proceeding in a manner not authorized by the order of the latter, or which would prejudice the interests of the creditors. Beyond this, from the testimony given by the judge, himself, it appears that it was his intention, though the language of the order can hardly be said to have expressed it, that the property should be sold as the sheriff sold it, in lots, and not in block.

The attempt to sell upon October 2nd, having resulted as has been stated, the sheriff re-advertised the property, to be sold October 23rd, on a twelve month bond. Upon October 23rd, however, a number of creditors, including the present opponents, presented a petition, setting forth “that the condition of the country, growing out of the excitement of the prevailing epidemic, and the strict quarantine” would be likely to interfere with the attendance of purchasers, and praying that the sale be postponed for thirty days, or until the removal of the quarantine ;and the sale was postponed until December 4th, when the rest of the property was sold to R. B. Blanks,' with the exception of the one-fourth interest in the 147 acres, which was sold to R. B. Blanks and John P. Parker, in indivisión; and the purchasers, preferring to do so, were permitted to pay the amounts of their bids in cash.

The receivers had thus sold all the property which had been entrusted to them, and had received the price, and there was nothing left for them to do, but file their account.

Why this was not done at once, does not appear. As a matter of fact, the account was not filed until May 28, 1898, nearly six months after the last sale. The account as filed is open to criticism in several particulars, and among others, in that it requires a series of calculations in order to ascertain the amount of money which is admitted to have been received, and which, those calculations having been made, we find to be as follows:

Proceeds of residence ..................................$3,050 00

Proceeds of fifty-eight acres ....:....................... 1,425 00

One-fourth of 147 acres ........."..................... 175 00

100 gallons of oil...................................... 30 00

Other property ........................................ 5,525 00

Logs, lumber, furniture, etc., sold by receivers at private sale ....................... 150 00

Oxen ................................................. 195 00

Wagon ............................................... 100 00

Lumber ............................................... 5,075 45

Collections from accounts .............................. 25 00

Collections from accounts, Exhibit B, made part of account. 287 02

Total...........................................$16,637 47

As against this sum, there are disbursements charged (exclusive of the amount of the mortgage claim of the Building and Loan Association), aggregating $9749.45, and other claims, recognized as privileged, aggregating $4212.11, and still other claims, tentatively placed on the account as entitled to privilege or mortgage, which more than absorb the small balance.

The oppositions which we are to consider attack this account in general, and in particular. It is objected that the public sale, save as to the residence, was not made in conformity with the order of the court, and it is claimed, in argument, that the receivers should be held liable for the appraised value of the property so sold; that the receivers have failed, in some instances, to account for money or property received; that they have credited themselves with the same amounts twice; that they have made disbursements without authority, and to no purpose, and should not be allowed credit therefor; that the fees with which they credit themselves and their attorneys, are excessive, etc., etc., which objections and claims, we will now consider in detail.

I.

The objection that the property which was sold by the sheriff was not sold'in conformity to the order of the court-would, we think, have been entitled to serious consideration if it had been presented at the proper time and in connection with some prayer for relief which it would be possible to grant. But there are several reasons why the receivers ought not to be held liable for any loss which may have been sustained on that account.

The order for the sale was made by the judge, without suggestion from the receivers, of anyone else; it was directed to the sheriff of the parish of Ouachita, and it was that officer who made the sale, and not the receivers, nor did the receivers suggest the manner in which Nit should be made. The counsel who -now represents the opponents, and who, we understand, represented them then, was present at the sale made October 2nd, when the fifty-eight acres were sold, as a separate lot, and made no protest or objection to the sheriff, nor application to the judge, though the latter was close at hand. Nor, when the sale was suspended for lack of bidders, was any complaint made by the opponents of what had been done. The sheriff was acting under a misconstruction of the language of the order, though, as we have said, from the testimony given by the judge, there was probably no misconstruction of the purpose of the latter in making the order. If the opponents thought there was no authority for the sale of the fifty-eight acres, as a separate lot, and that injury would result to them therefrom, they should have warned the sheriff not to make the sale in that way; they should have made a public announcement of his want of authority to do so; and, if they failed to accomplish their purpose, they should have applied to the judge to prevent the consummation of the sale as about to be made, and to annul what had been done. Instead of doing any of these things, the opponents remained silent until the day before that fixed for the sale on bond, when they, and other creditors, presented the petition, asking that the sale of the balance of the property be postponed on account of the-unfavorable health conditions, quarantine, etc.. but suggesting- absolutely no objection whatever, either to the sale which had been made, or to that which was to be made. And when the final sale was made, December 4th, 1897, they still remained silent, and only opened their mouths to speak some six months later, when, whilst claiming- the proceeds of the sales as made, they complain that the receivers should be held liable for the results of the misinterpretation, by the sherifli, of the order which the court had directed to him.

In addition to this, there is no evidence in the record which would justify us in assuming- that the property would, if sold in block, have realized more than was obtained for it. There seems to be a good deal of force in the suggestion, that the purchaser of the fifty-eight acres acquired the key to the situation, but, that being the case, it is fair to suppose that one person, intending' to buy the whole plant, would have perceived it as readily as another, and would have regulated his bid upon the “key” accordingly. In other words, if there had been two or more bidders present, anxious to buy the entire plant, and willing to-pay its value, it seems to us probable that the value would have been obtained, whether the property was sold in block or in lots. The real trouble, we think, arose from the fact that it was considered a bad season for persons from elsewhere to be prospecting in Louisiana, and, with the exception of the gentlemen to whom the property was adjudicated, and who were the presidents of the two banks in Monroe, which were large creditors of the Sheets Lumber Company, there appears to have been no one else present able or willing to buy. We, therefore, conclude, that this ground of opposition is without merit.

II.

It appears that the one-fourth interest in the 147 acres, which was appraised at $595.00, was adjudicated to R. B. Blanks and John P. Parker, in indivisión, for $175.00. But Parker is one of the receivers. He ought to have known that he could not buy that, or any other property belonging to the corporation, for which it was his duty to obtain the best price possible, since, as a purchaser, it was to his interest that it should sell for the lowest price, and a man is not permitted to place himself in a position where his duty and his interest thus conflict.

The receiver, Parker, should be held liable for the appraised value of this property. Succession of Stanborough, 37 Ann., 275; Heirs of Wood vs. Nicholls, 33 Ann., 744; McCready & Burke vs. Schenck, 43 Ann., 479; High on Receivers, 3rd Ed., par. 193.

III.

The evidence shows that the receivers sold lumber at private sale, the aggregate price of which was $6846.67, whereas they charge themselves, on the account filed, with only $5675.43. They arrive at these figures by deducting from the $6846.07, as shown by the books kept bv them, the following amounts, to-wit:

Amount charged R. M. Filhiol, in error...................$ 30 00

Bill of lumber sold Willis Whitaker and not collected........ 266 73

Amount charged to C. A. Downey...............■......... 874 49

$1,171 22

Amount charged on account ............................ 5,675 45

Aggregate price .................................$6,846 67

The receivers were entitled to a credit of $30 by reason of an error in the account of Filhiol, but they have taken that credit elsewhere.

There is no denial of the fact that they sold the bill of lumber to Whittaker and have not collected the money, nor, so far as we have been able to discover, has any particular effort been made to collect it. We are of opinion that they should be held liable for the amount.

The item of $874.49 represents certain lumber taken by Mr. Downey, one of the receivers, for his own account. An effort has been made to show that this lumber was sold, or turned over to him, before his appointment as receiver, but the evidence, in our opinion, establishes affirmatively that lumber to that amount, and probably more, was shipped for his account, and charged to him, after his appointment. This appears, not only from the books kept by the receivers, but is corroborated by the testimony of Sheets, who kept the books; of Handy, the president of the Monroe Grocery Company; and of the bookkeeper, and the books of the Southern Grocer Company, showing the amounts received by it from the Sheets Lumber Company for the account of O. A. Downey. The receivers are, therefore, to be charged with an additional amount of $1171.22 on account of lumber sold at private sale.

IV.

It is admitted that a wagon, not inventoried, came into the possession of the receivers, and was sold by them for $75, to a buyer who is abundantly able to pay, but that the price has not been collected, or accounted for. "The receivers are to be charged with the amount.

Y.

The receivers credit themselves with an item of $533.30 for “general office and other expenses”, and with another item of $398.07 for “special labor, caring for property, extra work, book-keeping”, etc. The evidence shows that in both of these items there is included $148.77 paid to W. II. Sheets, and these items must be reduced by that amount by reason of the double credit thus taken.

VI.

Our attention is also called to an item of $282.46, said to have been paid for “labor in saw and planing mills,” and placed on the account as privileged. In this item is included $253.16 as the salary of William Grooves, who was employed at $75 per month, for services rendered prior to the appointment of the receivers. The order appointing the receivers was made May 18, 1897. Act 145 of 1888, provides that “all managers, mechanics or laborers, employed or working in saw-mills, planing mills * * * shall have a privilege on all lumber, shingles, and ¿11 other material manufactured, * * * provided that the privilege shall not exist for a longer period of time than thirty days after the maturity of the debt; and provided further that this privilege shall have no effect against • Iona -fide purchasers.” The salary for April matured at the end of the month, and the salary for May, up to the 18th, matured then, by reason of the order appointing the receivers. Aside, therefore, from the question of payments which may have been made on account, Groves was entitled to a privilege for $75.00 for his salary for April, and $45.00 for May, or a total of $125.00. It appears from this account that he received $19.85, April 20th, and $10.86 between that time and May 18th, or a total of $30.71, upon and after the date on which his April salary became due. What he had received before then can hardly be attributed to either the April or May salaries. Deducting $30.71 from $125.00, and the amount for which he is entitled to a'privilege is $94.29. The judge a quo thought it should be $75.00. The receivers in their answer to the appeal have asked that the privilege be allowed for $253.16, as upon the account. For the reasons stated, we are unable to agree with either, or with the opponents, who claim that there is no privilege at all. -We think a privilege should be recognized as allowed by law, for $94.29, and that the item under consideration should be reduced by the difference between that amount and $253.16, or say $158.57, which latter amount should be ranked as an ordinary claim.

VII.

The receivers have entered upon the credit side of their account, as “Exhibit D,” an item of $2,669.90, made up of what are called “privileged labor claims, unpaid, as reported to receivers and shown by the books of the company.” Included in, and making part, of this item, C. A. Downey appears as the holder of Tabor tickets to the amount of $2,182.25; Julius Kaliske appears as the holder of such tickets to the amount of $50.50; S. P. Bres appears as the holder of such tickets to the amount of $18.75; “Joe Cook, for PI. J. Benoit,” appears as the holder of tickets to the amount of $27.89; and a number of other persons appear as the holders of other tickets.

Considering the claim of Mr. Downey; he is a merchant who sold goods to the employes of the mill, and received, in payment, orders upon the company, which read as follows, to-wit:

“Sheets Lumber Company, Limited, No..... Please pay..........
“ in merchandise, .......................dollars.
“To Mr. C. A. Downey.
“Sheet Lumber Company, Limited,
“Per. W. H. S.”

These drafts were redeemed by the company, from time to' time, in cash, or by shipments of lumber upon Downey’s orders. His account, upon the books of the company, shows á balance due him,'May 18, 1897 (the day upon which Parker was appointed receiver), of $3,056.74. Upon March 31st, the account shows a balance in his favor of $2,789.02. Between March 31st and April 18th, therefore, according to the account, the indebedness had been increased by $267.72. But w.e fail to find that this’increase was made up of orders given by the company to its employees and honored by Mr. Downey, and we do find, upon the other hand, that the amount received by Downey in cash, and otherwise, between the dates mentioned, exceeded the amount of such orders with which he was credited. Assuming, therefore, for the purposes of the argument, that, as the holder of such orders, given for services rendered by employees, he would be entitled to stand in the shoes ’ of such employees, it appears that all the orders given for serviced rendered within the time during which a privilege can be claimed must be considered as having been paid, since the other credits upon his aceount during that period bear no privilege, and the payments are to be imputed to the debt which the “debtor had, at the time, most interest in discharging.” C. C. 2166.

With regard to the other amounts, which go to make up the item of $2,669.90, we are equally satisfied that none of them are privileged, but that thhy should rank, with the claim of Downey, as ordinary debts.

VIII.

Objection is made to' the item “repairs to and operating saw-mill, $390.33, with which the receivers credit themselves. It is admitted that the saw-mill was not operated, and the receivers have produced no vouchers for money expended in repairs; nor do we find anything in the order of court, under which they were acting, which authorized them to incur such expense. The disbursement, if made for repairs which enhanced the selling value of the property, might be approved, as having enured to the benefit of the creditors. But the attempt to show that this was the case must be considered a failure, when we find that the property, appraised at nearly $40,000.00, was sold for less than $6,000.00. This credit, we think, should not be allowed.

IX.

The receivers credit themselves with fees amounting, in the aggregate, to $2,700.00, or $1,350.00 each,, and the amount claimed was allowed to Mr. Downey, whilst, as to Mr. Parker, it was reduced to $600.00.

Upon this subject, it is said by Mr. High, that: “In this country, as in England, no established rule has been fixed for determining the amount of compensation to be allowed receivers, and*it is, from the nature of the case, quite impracticable to establish an inflexible rule. The compensation is, therefore, usually determined according to the circumstances of the particular case, rather than by any fixed principles or established rate of percentage. It may be said, in general terms, that a rerceiver’s compensation should correspond with the degree of business capacity, integrity and responsibility required in the management of the affairs entrusted to him,” etc.

High on Receivers, 3rd Ed., Sec. 783.

In Grant vs. Bryant, 101 Mass., 567, it was said:

“The court does not regulate the compensation of its ‘officers upon the basis of a fixfed commission upon the amount of money passing through their hands, but allow them such an amount as would be reasonable for the services required of and rendered by a person of ordinary ability, and competent for such duties and services.”

There can be no question but that the administration of the receivers in this case has been disastrous in the extreme; and, whilst they aré not altogether to blame for the results, iwhereby property- appraised (using round figures) at $61,000.00 has realized but $16,000.00, out of which over $10,000.00 is charged for fees, costs and expenses, they are by no means beyond criticism.

Their services extended over a period of about six and a half months, say from May 18th, to December 4th, 1897, at which latter date the last of the property under administration was sold; and, during that period, the person actually in charge of the practical details of the business, and who, during most of the time, had entire charge of the books, was W. H. .Sheets, who had held the same position, relatively speaking, before the receivers were appointed. This gentleman seems to have been much deferred to in all matters, and if either of the receivers lorew anything about the lumber business, they failed to give their administration the benefit of that knowledge. This may be illustrated by the answer given by Mr. Parker to the question, whether, in selling lumber at private sale, the receivers did not undersell some other company, to which he replied: “I do not know. The price was left entirely to Mr. Sheets. Every offer or every order that we received we referred to him before making the price.” Mr. Parker does not pretend to have given much of his time or attention to the business, and testifies that, when spoken to upon the subject, he referred to Mr. Downey and Mr. Sheets. And Mr. Downey, like Mr. Parker, left the active management of the business to Mr. Sheets, knew nothing about book-keeping, and rarely looked into the books.

Beyond this, these gentlemen seemed to have been laboring under a total misconception of the duties and obligations which they had assumed, and of their relations, as receivers!, and as individuals, to those whose interests they had taken in charge.

We have already had occasion to notice the fact that Mr. Parker was the adjudicatee of certain real estate which formed part of the property entrusted to him and to his co-receivers. But that was merely one circumstance among many of a similar character. The general course of business was exactly as though Parker and Downey, receivers, were totally distinct persons from Parker and Downey, individuals; and as though they were at' perfect liberty, in the one capacity, to buy from and sell to themselves, in the other capacity.

Mr. Parker, therefore, not only bought lumber from the receivers, but sold lumber to them. And Mr. Downey continued the same relations with the receivers which he had previously maintained with the Sheets Lumber Company; that is to say, the employes of the receivers were paid, wholly, or in part, by orders on Mr. Downey, which were taken out in merchandise furnished from the store which Mr. Downey continued to operate. As the receivers assumed, without any application to the court upon the subject, after the obtention of the first order, to employ as many persons as they pleased, and to fix their salaries, and, as it is to be supposed that Mr. Downey made a profit on the merchandise furnished by him as a merchant, upon the orders given by him, as receiver, the glaring impropriety of the position in which he and his co-receiver placed themselves, must have been manifest to any one who was not grossly ignorant of, or wilfully blind to, the duties and obligations of persons acting as fiduciaries.

Beyond this, we think it appears from the record that both money and property which went into the hands of the receivers as assets of the Sheets Lumber Company were paid or used in satisfaction, or in part satisfaction, of a debt due to Mr. Downey, before the receivers were appointed. The statement of the Southern Grocer Company is in evidence, supported by the testimony of Mr. Newhall, the book-keeper of that concern, and it shows that $615.92 worth of lumber was turned over to it for Downey’s account, June 9, 1897. It also appears in the record that Mr. Downey received by checks, by the collection of bills," due either to the receivers, or to the Lumber Company; and in cash, between October 18th, 1897, and January 21st, 1898, inclusive, $526.13, and Ms explanation, when interrogated upon the subject, to the effect, in a general way, that he must have received these amounts for something due him at the time, is unsatisfactory. One of the checks appears to have been for $346.66, and to have been given January 21st, 1898. From the evidence, we understand that the handwriting upon the stub, and in the body of the check, was Mr. Downey’s; and, 'though he says that it was signed by Mr. Parker, he does not deny that he got the money on it, and yet he fails to explain why it was paid to him, except to say that it was a balance due him by the receivers.

These circumstances tend to show, to say the least of it, a lack of appreciation, by the receivers, of thel obligations of their position; and, as there is nothing in the administration of the business to indicate that they possessed any peculiar qualifications in that direction, we should be disposed to allow them nothing, were it not that the, oppositions, and the brief filed in support thereof, concede that some allowance should be made. We, therefore, fix the amount to be allowed both receivers at $500.00.

X.

The Building and Loan Association, in whose interest the residence property was sold, separately, was represented by Mr. F. G. Hudson, one of the counsel who represents the receivers; and, included in the mortgage claim of said association, is an item for attorney’s fees, which the receivers have recognized, amounting to $252.46, to which the opponents object. The only counsel who represented the Building Association were, at the s£.me time, representing the receivers. As attorneys for the receivers, they prepared the petition asking for the sale of the mortgaged property, separately from the rest, in order to secure the payment of the mortgage debt, and the sale was so made. We do not think that a separate fee should be allowed one of them as attorney for the association, or should be allowed the association by which he was employed.

XL

From the receivers’ account, it appears that they paid to Mr. F. G. Hudson, their attorney, for services rendered, $600.00, and there is further entry as follows, to-wit:

“F. G. Hudson, attorney’s fees, 2 1-2 per cent, of the amount of the “ inventory. This includes all professional services rendered receivers “in both State and United States courts, consultations, and advice “from time to time; all suits brought by or against the receiver, and “ this account — $1,542.21.”

It is explained in the testimony that the amount thus claimed includes the $600 already paid, and also includes any fee which may be due to the counsel associated with Mr. Hudson. The amount in question is predicated, as appears from the entry, upon a percentage of the appraisement, as per the inventory. A good deal of the time of the learned counsel and of that of his clients was, however, devoted to an effort to show that the appraisement was too high, and we are convinced that, in some respects, it was. Thus, from the accounts appraised at $4,414.96, the receivers collected $287,02. And for the lumber and logs appraised at $10,200.00, they obtained about half that amount, and it is claimed that this particular property realized something like an approximation to its value. Under these circumstances, and in view of the general disaster, we think that $1,200.00 is as much as should be allowed for counsel’s fees.

We concur with the judge a quo that the judgment in favor of the Ouachita National Rank, rendered without citation, and upon a confession made in the name of the Lumber Company, without authority, is an absolute nullity. And, in other respects, save as hereinbefore indicated, we find his judgment correct. It will, therefore, be amended in certain particulars, and, as amended, affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to direct the amendment of the account filed by the receivers in the following additional particulars, viz:

By increasing the total amount which,, upon the face of the account, appears to have come into the hands of the receivers, to-wit: the sum of $16,637.47 by;

1. The sum of $420.00, to be paid by John P. Parker, individually; being the difference between the appraised value of real estate adjudicated to him and the price at which it was so adjudicated.

2. The sum of $1,171.22; being the difference between $6,846.67, the aggregate price of lumber sold by the receivers at private sale, and $5,675.45 the amount accounted for.

By reducing, amending, and rejecting the credit items on said account as follows, to-wit:

3. By disallowing the privilege recognized in favor of the claims included in “Exhibit D,” amounting to $2,669.90.

4. By rejecting the item, “repairs to, and operating saw-mill, $390.30.”

5. By reducing the fees to be allowéd the receivers to $500.00, said amount to be equally divided between them.

6. By rejecting and disallowing the item, “attorney’s fees on same, per terms of mortgage, $252.46.”

7. By reducing the fees to be allowed the attorneys of the receivers to $1,200.00, said amount to include all payments made, and all counsel employed.

8. By increasing the amount, for which a privilege is allowed, in favor of William Groves from $75.00 to' $94.29.

It is further ordered, adjudged and decreed that, in all other respects, said judgment be affirmed, and that the account as thus amended, be approved and homologated and the funds distributed accordingly, the costs to be borne by the mass.

Blanchard, J., takes no part in this decision.

Rehearing refused.


text:
    No. 13,425.
    Oneziphore Thibodaux vs. Charles Raggio.
    Syllabus.
    An order extending the return day of an appeal, based on error and want of knowledge of the true facts, will be rescinded, and the appeal dismissed, when it appears that the appellant, or his counsel, is responsible for the misinformation upon which the court acted.
    APPEAL from the Seventeenth Judicial District, Parish of Vermilion. — DeBaillon, J.

      Broussard, Kitchell & Bailey for Plaintiff, Appellee.'

      John L. Kennedy, Todd & Davis and 8. P. Watts for defendant, Appellant.
    On Motion to Dismiss the Appeal.
   The opinion of the court was delivered by

Nicholls, C. J.

This case, appealed at the same time, and from the same parish, and involving the same issues, stands before the court in all respects as does the case of Emile Thibodeaux vs. William H. Cayard, No. 13,318 on the docket.

The same motion to dismiss the appeal made there is made here, and the grounds therefor are the same.

The reasons assigned by the court in the Cayard ease for the dismissal of that appeal, must likewise prevail.here, and, accordingly, it i's ordered, adjudged and decreed that the appeal be dismissed at the costs of appellant.

Breaux, J., having been of counsel, recuses himself.

Rehearing refused.


text:
    No. 13,368.
    Immanuel Presbyterian Church vs. Owen Riedy.
    Syllabus.
    Where, following a sheriff’s sale of property under execution, a rule is taken by the purchaser on the sheriff and the occupant of the premises to show cause why the latter should not be ejected therefrom and the purchaser placed in possession, nothing is at issue, or can be put at issue, save the right of possession, and to vest this court with jurisdiction of an appeal from the judgment making the rule absolute the record must affirmatively show by allegation or proof that the value of the possession exceeds $2000.
    ^ PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      Benjamin Bice Forman for Plaintiff and Appellee.

      Omer Yillere for Defendant, Appellant.

      On Motion tq Dismiss Appeal.
   The opinion of the court was delivered by

Blanchard, J.

The ground for the motion to dismiss is want of jurisdiction, rations materias. It is represented that the matter in dispute is the possession of immovable property, the value of which possession is less than $2000.

In a suif bearing this title plaintiff had recovered a money judgment against defendant. Execution issued and certain immovable properties were seized, among them that with reference to the possession of which the present controversy arose.

As the result of this seizure and the sale which followed, the sheriff executed a deed to the plaintiff as the purchaser of Lpts Nos. 5 and 6 in Square 32, bounded by Camp, Chestnut, Robert and Soniat streets, in the city of New Orleans. The premises were occupied by defendant Riedy and his family. He refused to vacate.

Whereupon plaintiff took a rule upon the civil sheriff and Riedy to show cause, at a time fixed, why the former should not be ordered peremptorily to eject defendant from .the property and put the purchaser (plaintiff) in possession.

For answer to the rule, the sheriff returned that he had made every effort to place plaintiff in possession of the property, but had been unable to eject the occupants therefrom, owing to the serious illness of defendant’s wife.

In his answer to the rule, defendant Riedy attacks the act, of sale as incorrect and false, concluding with the prayer that the rule for possession be dismissed with costs. He does not pray for judgment decreeing-the nullity of plaintiff’s title.

Nowhere in-the pleadings or evidence is it stated or proven what the value of the possession of the premises is, exe.ept that in a rule taken by the appellee to increase the amount of the appeal bond the statement is made that the rental value of the property is $300 per year.

The sheriff’s deed to plaintiff shows the value of the property itself to be $2625 — that is to say, it brought that price at the sheriff’s sale.

The judgment of the court a qua on the rule was that the same be made absolute, and that the civil sheriff proceed to eject the defendant from the property and deliver the possession thereof to plaintiff.

This appeal, suspensive in character, followed, on a bond for $250 fixed by the judge.

We do not think the title to the property was an issue, or could be made an issue, in the rule taken on the sheriff and the occupant to show cause why the sheriff should not put the purchaser in possession of the same, following the execution of his deed to the latter. The proper course for the defendant, who was the occupant, to have pursued to test the sufficiency of plaintiff’s title, was to bring a direct action, setting up the grounds of nullity, and invoking the writ of injunction to stay ejectment proceedings against him.

On the trial of the rule nothing was at issue save the right of possession. That which was sought to be accomplished, and that which was defended against, was the vesting of possession, the putting of possession, of the premises in the plaintiff in rule.

The possession, then, of the property was “the bone of contention.”

To give this court jurisdiction the record must affirmatively show by allegation or proof that the value of this possession exceeds $2000.

This is not shown, and, accordingly, the motion to dismiss must prevail.

It is, therefore, ordered that the appeal herein taken be dismissed at the costs of the appellant.

Rehearing refused.