author: Watkins, J.

text:
    No. 10,908.
    A. B. Levy vs. D. C. McCan.
    1. In a suit for extra compensation of a clerk and book-keeper against his employer, where the proof discloses false enfries in the defendant’s books evidencing the employe’s assent thereto, if unexplained and unsupported by confirmatory and satisfactory evidence, they create a strong presumption against the demand.
    2. Instructions given to the employer’s counsel to investigate such questioned entries, and make protestto the book-keeper against them, can not serve as the foundation of a charge of slander and libel or ground an action in damages against the employer.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. S. Benedict and Lionel Adams for Plaintiff and Appellant.

      Farrar, Jonas & Kruttsehnitt for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is an action brought by a discharged clerk for balance of $11,400 as the amount due him on his salary for the full term of his contract of employment and for damages.,

Plaintiff’s claim is somewhat ambiguous and involved, but the substance of it is that on the 15th September, 1880, he was employed by the defendant as book-keeper, at a salary of $100 per month, but for the term of one year — the defendant being engaged in operating a foundry and iron works.

Soon after his said employment, Charles P.' McOan, son of defendant, became a partner of his father in business, and the capital thereof was very largely increased, and the business, also, was increased and extended to the purchase of plantations, and the furnishing of supplies to sugar planters — whereby the labors of petitioner were greatly increased.

That during the time Charles P. McCan was a member of the firm, and prior to his death, he was the active man of the firm, and was chiefly intrusted with and responsible for its management and administration.

That after his death, on the 19th of September, 1886, the defendant requested him to take- the place of his son in the conduct ■ of the business, but simply as an employe — the transactions of the firm in liquidation aggregating many hundred thousands of dollars annually; and that defendant promised to pay him a compensation commensurate with the value of his services, over and above his assured salary, which was, at that time, $200 per month, to which he assented.

Under this arrangement plaintiff claims that the scope of his services was enlarged and extended, so as to embrace not only all of the various details of the foundry establishment, but to extend to all the receipts and disbursements thereof, and, also, to those of the defendant’s several plantations, situated in different parts of the State —including the supervision of the laborers and lessees thereof, and the furnishing of them with plantation supplies.

Plaintiff specially avers that his said services continued from the 19th of September, 1886, until the 1st of January, 1890, when he was discharged by the defendant without sufficient cause or any serious ground of complaint.

He further avers that during the time he was so engaged, and prior to the date of his discharge, the defendant, “ while frequently promising, failed to fix a proper remuneration for the service of petitioner outside of his regular line of duty as such book-keeper, and for the entire and active management and control of the property and business of the defendant;” but he further avers that, subsequently, on or about the 9th of August, 1889, the defendant gave him $300 on account of said extra services and authorized him to credit himself with $200 ádditional on that account, the remainder to' be settled thereafter, and corresponding entries were made on the defendant’s books.

He further avers that, in the fall of 1889, he demanded of defendant a settlement in the premises, and same was referred to defendant’s counsel, who drew up a document wherein the amount of his salary was increased from $2400 per annum to $8000 per annum, ‘1 but same was so coupled with conditions that your petitioner did not feel that it was proper for him to sign, and he declined to sign same;” but, on the contrary, he expressed a willingness “ to sign same without such obnoxious conditions, and defendant declined to abate said conditions.”

Notwithstanding what had transpired, plaintiff represents that he continued his services until January 2, 1890, when, over his written and verbal protest and expressed desire to continue to perform his services, he was discharged from further employment by the defendant.

On the score of extra services the plaintiff claims the sum stated above; and, charging defendant to have slandered and defamed him by making and publishing as true a false statement to the effect that he had as book-keeper made false entries in his books in relation to the alleged agreement with petitioner, the latter claims and demands an additional $10,000 as damages for slander and libel.

The defendant’s answer is full and explicit in detail, and we reproduce from his counsel’s brief, at pages 10 and 11, the following careful synopsis of it, as the best mode of presenting his side of the case, viz.:

His entries in the defendant’s book show “an admission that plaintiff was employed by defendant and by his firm of D. O. McOan & Son, and that the salary agreed to be paid to him prior to 1882, and which was paid to him in full, was at the rate of one hundred dollars (§100) per month, which was duly and regularly paid to him from month to month; that from January 1, 1882, to September 80, 1885, plaintiff’s salary, fixed at $125 per month, was also duly find regularly paid to him; that from October 1, 1885, to December 81, 1887, his salary, fixed at $150 per month, was also duly and regularly paid to him; that from January 1, 1888, to January 1, 1890, his salary, fixed by agreement at $200 per month, was also duly and regularly paid to him; and he avers that these salaries were in full for all services rendered, and that no other agreement was ever entered into between plaintiff and defendant or defendant’s firm or his deceased son concerning the salary of said Levy, or any further compensation ever agreed to be paid to him for his services as clerk or otherwise; that on or about the 10th of December, 1889, Levy informed respondent that in his opinion his services had actually been worth to respondent far more than his agreed salaries, and notified respondent that unless a material pecuniary recognition of this claim were made he would leave respondent’s service on the 1st of January, 1890; that respondent positively and emphatically declined to do this, stating to said Levy that throughout the term of his said engagement he had been at all times at perfect liberty to resign his position if he had considered the salary agreed upon and regularly paid as insufficient compensation for his services. That Levy thereupon fully and unreservedly admitted the legal correctness of respondent’s position, and without asserting that he had any legal claim upon respondent for past services, or pretending that such claim existed, notified respondent that he would withdraw from his service on the 1st of January, 1890; that thereupon respondent, not wishing at that time to lose the services of said Levy, requested him to name a salary for the single year of 1890, which he (Levy) would consider not only a full compensation for all services to be rendered during the year, but which would likewise remove from his mind all dissatisfaction caused by his belief that his agreed salary in the past had been insufficient; that Levy thereupon suggested the sum of $8000, which respondent assented to; that when the agreement was prepared on the 12th of December, 1889, Levy refused to sign the same, and, refusing longer to remain in the employment of respondent, voluntarily withdrew therefrom on or about the 1st of January, 1890; that by this course of action respondent’s suspicions were excited, and he employed an accountant to examine his commercial books, which had been kept solely by said Levy, and were exclusively under his control; that an investigation of said books thus made showed the following entries made therein in the handwriting of and by said Levy. ’ ’

Thereto is appended a statement of the various entries upon the ledger and cash book that were kept by the plaintiff, exhibiting the proof of the amounts that were due him, on account of his salary during various years of his service.

Then follow quoted extracts from the same books' of the alleged false entries made therein by plaintiff whilst he was in defendant’s employ as book-keeper, and, as he (defendant) avers, wholly without his knowledge or consent, and in reference to plaintiff’s claim for. the extra services, and which are as follows, viz.:

1. “Oash book, at p. 244, July 31, 1888, is the following entry: A. B. Levy by D. O. McOan, balance July salary, as agreed by the year, from July 1, 1888, at §4800.

5. “In ledger, June 30, 1889, and in the cash book, June 30, 1889, is the following entry and contra-entry: A. B. Levy by D. O. Me-Can — as agreed between A. B. Levy and D. C. MeCan. Oredit for back wages from October 1, 1886, to June 30, 1888, to compénsate A. B. Levy for extra services connected with the several plantations of the estate of O. P. McOan and D. O. McOan, as per contra-entry of this date, $4930.

6. “ In the cash book, June 30, 1889, is the following entry: D. O. McOan to A. B. Levy. Salary of §4800 per annum is hereby renewed from June 30, 1889, for one year, under the same conditions as those of July 31, 1888, as agreed between A. B. Levy and D. C. MeCan, and in addition to said renewal D. C. MeCan agreed to give the said A. B. Levy credit for bach wages from October 1, 1886, to June 30, 1888, to compensate A. B. Levy for extra services connected with the several plantations of the estate of C. P. McOan, and of the said D. O. Mc-Oan, §4960. And on a check stub No. 2409, of August 9, 1889, is the following entry: A. B. Levy, on account of accumulated salary to his credit to July 30, 1889, amounting to §7550, §300. And a similar entry appears in cash book, fo. 381.” (Italic ours.)

The defendant refers to the foregoing entries as those he complains of as incorrect and not authorized, and to which he requested his counsel to direct the plaintiff’s attention; at the same time denying that he ever, at any time, defamed or slandered him, though he denounced said entries to be false.

Defendant speciically denies any recognition or acknowledgment of the plaintiff’s claim for extra services, and affirms that when he signed a check in favor of plaintiff in August, 1889, he was ignorant of the statement he subsequently ascertained was contained on the stub on said check book.

These comprehensive statements from the petition and answer narrow the controversy to a very small compass, and leave us practically nothing to do but settle one or two disputed questions of fact.

It is well to premise our discussion by the statement that plaintiff’s petition concedes that, whatever may have been the course of his negotiations with the defendant, they never reached and perfected an agreement with relation to such extra services and no price therefor was ever agreed upon between them. His claim, therefore, must necessarily be upon the score of a quantum meruit, and not on a contract.

At the outstart we will further observe that while the plaintiff, in his petition, makes special reference to the disputed entries pointed out in the defendant’s books, he seems to have done so for the sole purpose of supporting his charge of slander against the defendant; for, while he avers “that each and every of said entries so made as aforesaid on the books of safd firm * * * were so made at the instance of said firm and said D. G. McCan by your petitioner, then their employé, under their orders and directions,” etc., yet there is neither statement or claim made in the petition to the effect that said entries furnish evidence of defendant’s acknowledgment of his liability for the extra services claimed of him. For if said entries were indeed authorized by defendant, the claim of the plaintiff would be clearly and fully made out; but if they were false entries, made in the defendant’s books by plaintiff, secretly and without the plaintiff’s knowledge, they do not constitute evidence against the defendant at all, but, on the contrary, completely confound the plaintiff, •as his case could not -for a moment stand in the presence of such a palpable fraud on defendant.

But, when we consider the fact of plaintiff’s failure to claim the full benefit of said alleged true and correct entries in the defendant’s books, in verification of his claim; and, further, consider the fact that he explicitly places reliance upon the written document that was prepared by the defendant’s counsel, alone, as containing an admission of the value of his services — the conclusion becomes irresistible that he deems those entries unreliable as testimony, and puts the ban of distrust upon them.

The testimony of the plaintiff as a witness is equally equivocal and self-contradictory as his petition is — for he fixes an altogether different date in his evidence for the beginning and termination of his contract from that fixed in the ledger entries; and, instead of relying upon those entries as furnishing positive proof of the defendant’s consent to pay a specified price of $200 per month additional for said extra services, his testimony places an altogether different interpretation upon the transaction, and shows, at most, that a state of negotiation existed at date of the conference that occurred at the law office of the defendant’s counsel, which the testimony of other witnesses establishes, never matured or ripened into an actual agreement at all.

We quote, in this connection, the following from the plaintiff’s testimony, viz.:

“ After he had given me $200, and up to the 31st of December, 1889, I frequently spoke to him about fixing up a definite amount, and he asked me how much I thought I ought to have. I told him $.5000 a year was fair enough. He says I will tell you what I will do; I will give you $4800, $200 for plantations and $200 for the regular business,. and I said to him that I had lost time from the time that I had started in; and he says I will fix that for you; and on July 1, 1888, he agreed to give me $4800 a year, and in June, 1889, he told me I could credit myself with back wages from October, 1886, to June 30, 1889. Then I continued drawing that $200, and crediting myself to keep it straight, just as the books show there.” R., p. 99.

Vide italicised paragraphs, particularly. Per contra we have the statement of the defendants’ lawyer, who prepared the projet of agreement plaintiff’s petition makes reference to — who, upon finding that his testimony was required, withdrew from the ease — and from it we make the following pertinent extracts selected from his evidence touching the interview at his office, viz.:

Mr. Levy then repeated in a very emphatic manner the sense of the injustice, or his sense of the injustice as he considered it, of Mr. McCan having employed him in a very responsible and difficult posi-tion for many years without proper compensation. He stated that Mr. McOan time and again promised to make him some effectual recognition of those services by an increase of salary or otherwise, and-that he had never done it, and had never kept his word.” (Italics ours.)

Again:

“He stated that he had a number of conversations with Mr. McOan, and that Mr. McOan had promised to give him one-fourth of Promised Land, and that he had discussed giving him an interest in the foundry, but he said that he knew, as a matter of course, that verbal arrangements of that kind were not legal and were inoperative, and that 41 come here for the purpose of making arrange - ments that I knew would be legal and binding,’ and I then said to him, 4 Mr. Levy,1 before I discuss this thing, let me understand one thing — have you made, or have you pretended to have made, any arrangement which is final and closed with Mr. McOan in this connection?’ and he said, 11 have not.’ I said, 4 Very well, then, we are discussing this question absolutely as an open question, and nothing has been done between you and Mr. McCan,, nothing has heen said which you regard as final and binding or operative, ’ and he answered, 4 That’s the position which I occupy in this matter to-day.’ I said, 4 In order that I might understand your position toward Mr. McOan, what is your salaryV Mr. McCan and Mr. Levy answered simultaneously, Mr. McCan saying 4 §200,’ and Mr. Levy saying ‘I am drawing §200.’ I said, very well, then I understand your position to be that Mr. McOan has been paying you a salary of $200, and that you consider your salary is insufficient for the services which you have rendered to him, and he says, 4 Yes, that’s it. I have taken the responsibility — a very heavy responsibility, I have worked incessantly, and have worked faithfully for'Mr. McOan, and he has not paid me sufficiently.’ ” (Italics ours.)

This testimony clearly establishes the plaintiff’s clear and distinct admission that there had not been, prior to that date, any agreement between him and the defendant; and the following shows just as conclusively that the proposed written agreement, in which it was stipulated that defendant should pay to the plaintiff $8000, related to one year’s services only, and those services were to be thereafter rendered, and during the progress of the liquidation of the business of D. O. McOan & Son — viz.:

“ Then it seemed as though there could be no agreement between them. Mr. Levy said, ‘ Very well, I shall leave on the 1st of January; that’s all there is about it.’ McOan seemed very much loath to have him quit. I then said to Mr. Levy, ‘ It seems to me that you might state some amount in dollars and cents, some round sum that would be satisfactory- — -some round sum that would not only be ample compensation to you for your services for one year,’ and there was never any question of any engagement being made except for one year, 1 which would not only be ample compensation for your services, and would enable Mr. McCan to retain you during this liquidation, but would also be sufficient to remove from your mind’ any sense of the injustice, as you claim it, that has been done to you, by not having heretofore given you a sufficient salary for your services.’ He asked me to state an amount, which I declined to do, and after some hesitation he stated, as it were, tentatively: ‘ Will you give me eight thousand dollars ($8000) V and before I could speak, Mr. McOan jumped up and said, ‘Yes! ’ evidently glad to have the tension of his mind relieved. They went out after a few unimportant words and I heard nothing more of it at that time.”

It just as clearly appears from the foregoing that plaintiff proposed to discontinue his services after the 1st of January, 1890, unless the defendant consented to pay him additional compensation dwring the year 1890.

From all that has been disclosed by the preceding quotations from the pleadings and evidence, and from other evidence not quoted, but equally convincing and clear, we are satisfied the case is with the defendant on both branches of plaintiff’s action.

The entries made in defendant’s books were never known to or sanctioned by the defendant, and are wholly without efficacy to make proof of a contract.

The projet of argument discloses simply an incomplete compromise as to plaintiff’s contemplated extra services to be thereafter rendered in 1890. There is no evidence to support a quantum meruit for years prior to 1890.

The defendant is an old and infirm person, possessed of large means, and who was evidently solicitous of retaining the plaintiff in his employment during the liquidation of the business of the firm during the year 1890, consequent upon the death of his son and partner, and upon whose services the defendant placed a high estimation. It is also evident that the plaintiff both saw and appreciated the advantage to himself of this situation, and had made up his mind to take all the advantage possible of it; and finding his scheme circumvented, he brought this suit in the hope of recouping the benefits of his unsuccessful negotiations.

It is our deliberate opinion that the plaintiff has no well founded claim for extra services, and none whatever for damages on the score of defamation of character and slander.

In the court below there was judgment for the defendant, and it is affirmed.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,900.
    Hobgood & Foster, C. P. Hobgood Substituted, vs. Charles Schuler, Third Possessor. Consolidated with Charles Schuler vs. George H. Sutherlin, Recorder of Mortgages.
    1. A party who advances money to the mortgage creditor o£ his debtor, in the payment of interest accumulations on the mortgage debt,becomes legally subrogated, pro tamo, to the mortgage creditor’s right.
    2. A party who purchases property encumbered by mortgage and vendor’s lien, and employs the price in the payment of the mortgage debt, becomes legally subrogated to the mortgage creditor’s right also.
    3. An unauthorized cancellation of a mortgage may be reinstated on proper proceedings, taken contradictorily with the recorder and other mortgage creditors.
    APPEAL from the Tenth District Court, Parish of DeSoto. • Hall, J.

      G. M. Pegues for Plaintiff and Appellant:
    Mortgages and privileges are extinguished when the creditor acquires the thing subject to the mortgage and privilege. O. C. 3411, 3277; 4 An. 416; 15 An. 407; 19 An. 260 ; 25 An. 559, 560 ; 34 An. 1032.
    Parties acquiring title to real estate are bound by the recitals to their act. 34 An. 962.
    Where a purchaser of real estate as the consideration of his purchase obligates himself to take up and pay existing mortgages or privileges against the land purchased, and in pursuance of such agreement subsequently so takes up and pays such mortgages and privileges, he is considered as having paid with the money of this vendor, and is not subrogated to the rights of the creditor, the debts in such a case being absolutely extinguished. 34 An. 962.

      E. W. Sutherlin contra:

    Inscriptions of mortgages can only be erased by consent of the parties, or by decree of competent court. O. O. 3371, et seq.; 30 An. 1307.
    Authority to cancel a mortgage given in error of fact, affecting the motive, is done without lawful cause and is without legal effect. O. 0.1820, et seq.; O. C. 1893, et seq.; 15 An. 268 (270).
    Subrogation takes place of right (1) for the benefit of him who, being himself a creditor, pays another creditor whose claim is preferable to his, by reason of his privileges or mortgages, and (2) for the benefit of the purchaser of any immovable prpperty who employs the price Of his purchase in paying the creditors to whom this property was mortgaged. O. C. 2161, 1982; 25 An. 64; 9 An. 247; 39 An. 366; 31 An. 839; 14 An. 587; 3D An. 1307; 34 An. 962; 1L. 373; 15 I,. 885.
    ■ 4. If the consideration, in a contract of sale, be declared therein to be cash, it is competent to show that there was some other real and sufficient consideration. O. C. 1900; 30 An. 969; 34 An. 688, 689.
   The opinion of the court was delivered by

Watkins, J.

Alleging Charles Schuler’s possession as owner of a tract of 320 acres of land, which he had acquired from one James, his judgment debtor, since the registry of his judgment against it as a judicial mortgage, on the 28th of February, 1889, the plaintiff proceeds against said property by the hypothecary action, in the foreclosure and enforcement of same.

The defence set up is that in 1882 James bought of Mrs. J. V. Mc-Kellar a tract of 560 acres of land for the total price of $3356, of which $400 was paid in cash, and for the remainder he executed his several promissory notes, falling due, respectively, on January 1, of 1884, 1885, 1886 and 1887, with interest, the payment of which being secured by a duly recorded mortgage and vendor’s lien upon the property.

That for certain advances made to James in cash, to make advance payments on this property, and money advanced to enable him to put improvements thereon, Schuler took a title to 240 acres of said land, on the 22d of January, 1885, though the consideration therefor is expressed in the act of sale -as $1800 in cash — being insufficient in amount to satisfy the whole of James’ indebtedness to him.

That on March 17, 1890, by deed recorded same date, he purchased of said James the remaining 320 acres of said original tract of land —the land which is the subject of this contestation — ostensibly for $3200- in cash, as recited in the deed, whilst in reality the consideration was the balance of the original purchase price that James was due McKellar, “which was then estimated in principal and interest, including sums previously advanced thereon by him, to be about that amount, but which, in fact, amounted to the sum of $3232.56.”

That he thereafter executed a special mortgage on the entire tract of 560 acres and other lands, to secure a loan of money one Thompson had made to him for the purpose of enabling him to pay off and discharge “ the then last mentioned notes of James, given as part of the purchase price (of the land) to McKellar, as aforesaid';, and that respondent (Schuler) thereby became legally subrogated to' the said McKellar’s rights of vendor’s privilege and special mortgage on the said remaining 320 acres of land, to secure said last three' notes executed by James to McKellar, and that he (Schuler) was. thereby entitled to be paid the amount thereof, and sums previously advanced to him thereon as aforesaid, out of said 320 acres of land, in. preference to plaintiff.” Brief of Schuler’s counsel, pp. 3 and 4.

As applicable to the foregoing statement, counsel further represent that the McKellar mortgage was, without due authority, or his (Schuler’s) consent, and also in error of fact, canceled and erased from the mortgage record, whereon it was, in due time and seasonably recorded, and, in proper proceedings against the recorder he seeks its re-establishment and maintenance, with preference on the proceeds of sale over the mortgage of the plaintiff — quoad the tract of 320 acres of land.

In the matter of the rule on the recorder the defendants urged a plea of no cause of action, which being overruled, there was a motion made to strike out Schuler’s answer in the hypothecary action on somewhat similar grounds to those taken under the plea of no cause of action, and it was likewise overruled.

The answer in the rule proceeding is substantially that from the proceeds of Thompson’s loan to Schuler, the James notes were paid, the McKellar mortgage canceled and the rights of mortgagee and mortgagor became united in Schuler as purchaser from James, and were extinguished by confusion; therefore, the cancellation was correctly made, and can not be revoked.

On Schuler’s motion the two cases were consolidated, and on the trial judgment was rendered recognizing plaintiff’s judicial mortgage and ordering sale of the 320 acres of land; but it further decreed that Schuler was legally subrogated to the rights of vendor’s privilege and mortgage of McKellar “for the said three last notes of James to her in controversy, to take rank as of date of recordation on November 3, 1882, and that Schuler be paid the amount of said three notes, in principle and interest, out of proceeds of sale of said 320 acres of land in preference to Hobgood’s judicial mortgage.” ' Brief of Schuler’s counsel, pp. 12 and 13.

No allowance is made for counsel fees as prayed for in the answer of Schuler.

From that judgment the plaintiff appealed, and in answer to the appeal Schuler requests an amendment in his favor awarding him the 5 per cent, stipulated in the McKellar mortgage as counsel fees— praying that it be in other respects affirmed.

On this presentation of the case there are two questions for determination: (1) Schuler’s subrogation vel non to the McKellar mortgage, and (2) if subrogated, the extent of his subrogation. For it seems to be plain that if Schuler be subrogated to McKellar’s right of mortgage the question of cancellation is of but little practical importance, as both the theory of the plaintiff’s and that of the defendant’s counsel clearly indicate that it was erroneously made— that of the former being that Thompson’s agent, with undue haste, acted upon an uncompleted abstract of title which made no disclosure of the Hobgood mortgage, the knowledge of which would have prevented its acceptance; and that of the latter being, that while he was the applicant for a loan of money from Thompson, he had no knowledge of plaintiff’s mortgage, or of the abstraer on which Thompson’s agent acted in making the loan, and not only had no knowledge of its cancellation, but that its cancellation was adverse to his interest as a creditor of James.

I.

There is but little dispute in regard to the evidence, and but little difference of opinion as to the law of subrogation.

It seems to be conceded that, whereas Schuler became a purchaser from James of the 320-acre tract of land affected bythe plaintiff’s judicial mortgage, and subsequent to the date of its registry, for a price stated to be cash; yet the real and true consideration thereof was the amount of the balance due McKellar on the last three purchase notes of James, capital and interest, and certain •other sums previously advanced by Schuler to James, which, together, aggregated a little more than the amount named in the deed as the purchase price. And it also seems to be conceded that the amount of the said three purchase notes were paid from the proceeds of the Thompson loan, and that upon the faith of that payment the McKellar mortgage was canceled and erased — no other incumbrance on the property mortgaged appearing to interfere with the loan; and there being no part of the sum loaned coming toSchuler, after the James notes were paid, and his own mortgage indebtedness upon other portions of his property discharged.

We may therefore accept it as a fact that Schuler purchased with the.intention, and James sold with the understanding and expectation, that the sale would square their accounts; and, resting upon that fact, the principle of law is clear that “subrogation takes place of right * * * for the benefit of the .purchaser of any immovable property who employs the price of his purchase in paying the creditors to whom this property was mortgaged.” R. C. C. 2161. *

Therefore, Schuler having employed the price he contracted to pay James in the satisfaction of the purchase notes he owed Mc-Kellar, became legally subrogated to the McKellar mortgage and vendor’s lien on the property, and that lien and mortgage primed and ranked the judicial mortgage of the plaintiff.

II.

Being legally subrogated toMcKellar’s right of mortgage and vendor’s lien on the property plainly implies that Schuler is to take the place of McKellar, quoad that lien and mortgage; and McKellar’s right was limited by the amount - of Ms demand, as evidenced by James’ purchase notes, and the stipulations of the act of sale.

By a fiction of law Schuler became legally subrogated to the creditor’s rights and securities by employing the price he was to pay the debtor, in discharge of his debt; and he thus became entitled to withdraw from the proceeds of sale just the sum the creditor was entitled to receive and no more.

But Schuler lays claim to the additional sum of 1923.38 he alleges he had advanced to James, from time to time, in cash, wherewith he paid interest accumulations to McKellar on the last three purchase notes, and whereby he is entitled to be paid from the proceeds of sale, because he was legally subrogated to the rights of McKellar under the provisions of the code, as he “ being himself a creditor, (paid) another creditor whose claim (was) preferable to his own by reason of his privilege and mortgage.” R. C. O. 2161. *

The position of Schuler is thus concisely stated in his counsel’s brief at pages 18 and 19, viz.:

“ Although the title to the 320 acres recites that the sale was made from James to Schuler for $3200 cash, in reality the consideration was that the sale was made to reimburse Schuler the $923.38 already paid, and Schuler was to employ the balance of his purchase price in liquidating the balance, $2308.48, then due on the notes; aggregating $3232.36 as afterwards calculated, and not $3200 as approximated at the time.

Schuler paid to James nothing of the purchase price, and Ford paid to Schuler nothing of the loan. The whole object of the sale of the 320 acres from James to Schuler was to reimburse to Schuler ¡the $923.38 already paid by Schuler on the notes, and to which extent he was then legally subrogated, and to liquidate the balance, :$2308.48, due thereon. In truth, the sale was made from James to Schuler to enable Schuler to raise money by mortgage on the lands to Thompson, through Ford, agent, for these purposes. The whole loan obtained by Schuler from Ford was retained' by Ford, and the whole of Schuler’s purchase price from James was directly applied to these purposes in the hands of Ford, as contemplated and intended by all the parties, and Schuler thus employed the whole of ‘ the price of his purchase in paying the creditors to whom this property was mortgaged. ’ ’ ’

There appears to be no' question as to the fact of said sum of $923.38 having been paid by Schuler to McKellar on the interest accruing annually on the last three purchase notes of James. Nor is there any question of the fact that Schuler paid the money to Mc-Kellar directly, and that he charged the amount thereof to James’ account on his books. It is equally a matter beyond question that, at the respective dates of these transactions, James was indebted to Schuler upon three antecedent transactions not satisfied by the sale of the 240 acres of land first conveyed to him.

The contention of the hypothecary creditor substantially is that, by becoming owner of the mortgaged property and acquiring the debt, the latter became extinguished by confusion (R. C. O. 3411), the right of mortgage becoming ^ merged into the higher right of ownership.

To our thinking that article does not apply to the present case; but, if the relations of the parties had been different, and Mrs. MeKellar, mortgagee, had acquired ‘ ‘ the ownership of the thing mortgaged,” we would have had a case for the extinguishment of the mortgage.

But as Schuler and MeKellar were both creditors of the common debtor, James, MeKellar having the superior right and mortgage on the debtor’s property, the law gave to Schuler the double right to pay MeKellar her demands and to purchase the property mortgaged from the debtor, and employ the price in satisfying Mc-Kellar’s mortgage — and thereby, in either event, become legally subrogated to McKellar’s higher right as well as security.

If there be any incompatibility between the provisions of the two articles of the code, it is our plain duty to so construe them as to harmonize their construction. But, to our minds, there is no incompatibility between them.

In our opinion, a clear case of legal subrogation is made out on the part of Schuler, both in respect to the capital and interest of the last three mortgage notes Mrs. MeKellar held against James.

We do not think this a case for the allowance of attorney’s fees, because it is not a suit against James, the mortgagor, but an hypothecary action against the property which Schuler purchased in alleged satisfaction of his demands, with the debtor’s consent, wherein another creditor with mortgage is cpntesting his right.

The judgment pronounced by the judge a quo is correct, and it is therefore affirmed.


text:
    No. 10,836.
    Succession of C. E. Girardey. Opposition of City of New Orleans to Provisional Account.
    1. The provisions of Oode of Practice 1042, which require that“ the testimony of witnesses in cases before the courts of probate shall be taken in writing and annexed to the record,” has for object to 2^serve the evidence of claims which are placed upon a succession account for the benefit of minors and absentees so that their right of appeal shall not be abridged.
    2. In case an account be homologated without due proof reduced to writing or otherwise, except as to a single creditor who has opposed, the judgment can not be maintained except as to the claim of that opponent.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. B. Forman for Succession, Appellee:
    1. When an opponent to the account of an administratrix opposes no item on the account, hut only claims to be placed on the account with first privilege, and the account is homologated so far as not opposed, the judgment of homologation is res judicata in favor of every creditor on the account, as to his claim and rank, and the opponent can only be heard as to his alleged privilege. Girod vs. Creditors,2 An. 548; Uee vs. Creditors, 2 An. 994; New Orleans 1m-provementand Banking Company, 4 An. 471; Succession Mouton, 23 An. 528.
    2. When an alleged privileged creditor has Successfully resisted a demand to cancel the inscriptions and refer his claims to the proceeds of the property, they can not afterward follow those proceeds. A litigant can not assume contradictory positions, and by turns blow hot and cold. He is estopped by conduct, pleading and judgment.
    3. Taxes assessed against one person can not be personal claims against another person.
    4. The privileges for taxes on immovable property rest only on the specific property in respect of which it is assessed, and
    5. Is prescribed by three years. Act 96,1877, See. 36, p. 142; Act 77, 1880, Sec. 24, p. 95; Act 98, 1886, Sec. 34, p. 145; Act 85,1888, See. 33, p. 124; Act 88,1888, p. 148.
    Note. — 13th November, 1891. To this date we have no brief of appellant.

      W. B. Sommerville,- Assistant City Attorney, and Oarleton Hunt, City Attorney, for Opponent and Appellant:
    1. The testimony of witnesses in causes before the courts of probate shall he taken in writing and annexed to the record. O. P., Art. 1042.
    2. A non-compliance with this article on the part of a court, can be taken advantage of by assignment of error on the appeal. Succession of Reeves, 3 An. 554; Tompkins vs.-Benjamin, 16 La. 200; Graham vs. Graham, 16 La. 203; Lesormes vs. Lesormes, 17 La. 115; Pargoud vs. Breard, 4 An. 517; Succession of Ross, 21 An. 511; Succession of Lorville, 27 An. 131; Succession of Bellocq, 28 An. 155; Succession of Oloney, 29 An. 328.
    3. Contracts or agreements above $500 in value must be .proved at least by one credible witness, and other corroborating circumstances. C. C., Art. 2277.
    6. Copies of taxbills certified to be correct by the comptroller «íímíerww are properly authenticated, and should be received in evidence. Sec. 39, Act 20 of 1882 p. 31; Sec. 21, Act 20 of-1882, p.24; Sec. 3, Act 85 of 1888,p. 114; Mullan vs. Creditors, 39 An. 398.
    7. All oppositions to the account of an administrator must be taken up together and tried at one time, as one case. Succession of Planchet, 29 An. 521.
    8. Any item on an account which has been opposed is not covered by the decree of court homologating that account in so far as not opposed. And an heir or creditor who is in court may be heard in opposition to those items which have not been finally disposed of by judgment, and which have been specifically opposed by a co-creditor or co-opponent. Succession of Shafer, 13 An. 113.
    9. An actof acknowledgment by ahusband in favor of his wife, setting forth that he had received certain money belonging to her, can “in no manner be evidence of the validity of the debt or claim.” Sec. 10, Act 95 of 1869, p. 116; Burns vs.Thompson, 39 An. 386.

      10. The legal mortgage in favor of a wife against her husband, lilce other mortgages, is extinguished in the same manner as are other mortgages. C. 0., Art. 3411.
    11. When the wife acquires property, as her separate estate, which property is paid for by the husband, in an amount far exceeding the original indebtedness of the husband to the wife, that debt is discharged, and the legal mortgage-falls, as well as the privilege.
   The opinion of the court was delivered by

Watkins, J.

Originally there were several different oppositions-to the account, all of which are dealt with and determined respectively in the judgment homologating same on the 12th of March, 1891 — that of the city of New Orleans having been dismissed on an exception and plea of prescription.

On the 16th of December, 1890, there was a judgment homologating the accounts, “ so far as not opposed.”

The city appears as intervenor quoad the last mentioned decree, and as such she appeals; and from the first mentioned judgment she has appealed in her capacity of opponent and defendant — other opponents not making any further contest.

Hence the question for decision is the distribution of the funds-of the succession and the right of the city to participate therein.

In this court counsel for the city has filed an assignment of errors in aid of her appeals, in which are formulated .and eireum-. stantially stated the grounds of her appeals, and which are substantially that (1) the said judgments of homologation were rendered without any proof haying been introduced as to the correctness of-the items of the account opposed; (2) that the record contains no note in writing of any such evidence having been introduced to serve as a proper foundation of said judgments; (8) that the record contains no evidence of the correctness of the items of said account, and the judgments homologating such accounts were'rendered without any sufficient evidence.

The record shows that the city’s petition of opposition simply alleges that she is a creditor of the succession for a large amount of taxes due for the years 1877 to 1890 inclusive, the whole aggregating in capital alone $3177.64, and her prayer is that the account herein filed be amended by placing (her) thereon as a first privilege creditor” for the amounts due for the various years enumerated,. with interest, and that same enjoy preference in payment from the proceeds of the sale in the hands of the administratrix.

During the progress of the proceedings counsel for the administratrix tendered, as an estoppel against the right of the city to participate in the distribution, her resistance to arule the administratrix had theretofore taken to compel the cancellation of certain tax inscriptions against the property subsequently to its sale; and she also urged the prescription of two, three, five, and ten years, as a bar to the city’s claim for taxes as well as against the privilege claimed as securing their payment.

On this statement of the issues raised in respectóte the opposition of the city there seems to be no question for determination other than that of privilege vel non, and that rests alone upon the plea of prescription urged by the administratrix.

It is true that counsel objected to the city tax bills being introduced in evidence on the ground that the comptroller’s certificate or certified copies of the tax rolls constitute the best evidence.

We are of opinion that the judge of the lower court correctly overruled the objection, because the tax bills appear te be official exhibits or exemplifications from tax rolls signed by the city treasurer, giving full and complete data of the assessment.

If there be any objection it goes to the sufficiency, and not to the admissibility, of the evidence. 39 An. 398.

Considering the question of the prescription of the tax privileges of the various years in question, we find that those of the years 1882, 1883, 1884 and 1885 are governed by the terms of Section 34, Act 96 of 1882, p. 130, which fixes the prescriptible period at five years; and those since 1886 are governed by the provisions of Section 34 of Act 98 of 1886, p. 145 (since re-enacted as Section 85 of 1888), which fixes the prescriptible period at three years.

Opposition of the city having been filed on the 21st of December, 1891, all tax liens and privileges securing the taxes of 1885 and antecedent years were prescribed by five years. Succession of Stewart, 41 An. 127.

And those securing the taxes of the years 1886, 1887 and 1888 were extinguished by the prescription of three years.

By the operation of these two periods of prescription all of the tax privileges have become inoperative against the claims and demands of succession creditors — except, possibly, the insignificant ■sum of $27.59 for the taxes of 1889 and 1890, of which the city appears to have made no specific complaint.

This is manifestly an insolvent succession, the total proceeds marshalled for distribution only aggregating $18,712.50, and the privileged debts enumerated on the tableau amounting to $17,570.46 in capital alone — nothing remaining to be applied to the payment of ■ordinary debts of about $3000, and only a small amount of property remaining unsold.

Under this statement of facts, the demands of the city as an ordinary creditor of the succession would be completely overshadowed and defeated by the demands of other creditors, whose claims are secured by mortgage and privilege. Succession of Mercier, 42 An. 1135.

As a reason why the demands of such creditors — and notably of the widow of the deceased, who figures as a creditor of his succes•sion for a large sum — should be disallowed and rejected, counsel for the city points to the provisions of Art. 1042 of the Code of Practice as mandatory and controlling, and his insistence is that the failure of the counsel to observe its provisions results fatally to all the claims that are covered by the judgments rendered.

That article is found in that chapter of the code which treats “ of the proceedings in relation to all actions brought in the parish court, as a court of probate;” and it declares that “ the testimony of witnesses in causes before the courts of probate shall be taken in writing ■and annexed to the record,” etc.

Respecting the provisions of that article as mandatory, we can not perceive the interest of the city to urge them. She is a person in law and sui juris. In her answer and opposition she affirms the existence of a lien and privilege for the security of her taxes, but she does not object to or disaffirm the validity or binding force of the privileges and mortgages asserted by other creditors. If the evidence, the absence of which she complains, were in the record, it is very doubtful whether or not she could avail herself of it, to impeach or diminish the demands of which she has made no complaint. Res inter alios acta.

In Succession of Reeves, 3 An. 554, a case cited in city’s brief, the court, in commenting on that article, say: The interests of minors and absentees in probate proceedings have induced our predecessors, on all occasions,, to require a compliance with this regulation, on the part of those courts,” etc.

In quite a number of cases this article has been examined and construed, the purport of decision being that its object is to preserve the.evidence of claims placed upon succession accounts, for the benefit of minors and absentees, so that the right of appeal shall not be-embarrassed or abridged. Tompkins vs. Benjamin, 16 La. 200; Graham vs. Graham, 16 La. 203; Desormes vs. Desormes, 17 La. 115; Pargoud vs. Breard, 4 An. 517; Succession of Ross, 21 An. 571; Succession of Dorville, 27 An. 131; Succession of Cloney, 29 An. 328.

But in Succession of Bellocq, 28 An. 154, a case is stated wherein an account had been “ homologated in so far as not opposed,” and the record disclosed but one opposition to the account, and considering the provisions of the cited article, the court said:

“As the account was homologated without any proof reduced to-writing or otherwise, except as to the creditor who opposed it, the judgment, except as to said opponent, can not be maintained.” (Italics ours.)

In Succession of Commageré, 38 An. 834, we had occasion to examine and collate the authorities pro et con bearing on the question of what effect is to be attributed to a judgment homologating an account, so far as not opposed, and we held, substantially, that one opponent could take advantage of the opposition of another opponent, which suspended decision of the court in respect to any and all items thereon opposed, so as to enable the former to supplement, his opposition by including such items as the latter had opposed.

But, in the instant case, all oppositions other than that of the city have been abandoned, or the judgment of homologation acquiesced in, and the city has no effective opposition on which to rest her-claim to relief as an ordinary creditor.

In our opinion the judgment appealed from is correct, and it is. affirmed.


author: McEnbry, J.

text:
    No. 10,946.
    Mrs. Emma W. Hansell et al. vs. Henry H. Hansell.
    A person alleged to be insane whose domicil is in a foreign jurisdiction can not be represented in this State by a special curator.
    The courts of this State must deal with an absent insane person domiciled elsewhere as a sane person until the courts of his domicil have interdicted him.

      Where an absent insane person has property in this State held in common with another, for the purpose of partition, he must be considered and proceeded against as an absentee.
    If no curator has been appointed to represent him and take charge of his property, and he has no known representative in the State, the court before whom the suit is pending must appoint a curator ad hoc to represent the absent. He is not required to take an oath. - '
    Parties to a suit only can avail themselves of irregularities. When prosecuted to a judgment, other parties can not urge such irregularities for annulling the judgment.
    When property is owned in indivisión and is the only property so owned with the co-proprietor, it is necessary to have an inventory of the property made.
    When the property is ordered to be sold at public auction in conformity to Articles 1389, 1310, Civil Code, it is to be presumed that satisfactory evidence was adduced before the judge that the property was indivisible in kind, or that it could not be-conveniently divided.
    Where a minor who has arrived at majority and appears in court, and disclaims any title to or interest in property which it is alleged was transferred without divesting his interest when a minor, he will afterward be estopped from set ting up title to said property.
    A PEAL from the Civil District Court for the Parish of Orleans. King, J.

      Bayne & Denigre for Plaintiffs on Rule, Appellants:
    An absentee is properly cited through a curator ad hoc. C. P. 116, 961; C. C. 56.
    'Curator ad hoc need not be sworn. Thayer vs. Tudor, 2 An. 1010.
    Until a person is interdicted he is considered to be sane and treated as sane; if notoriously insane, he occupies precisely the same position, and is treated precisely in the same manner as if he had been interdicted. C. C. 1788,102.
    An interdict is precisely like a minor, both as to his person and property, and the sale thereof. C. C. 115; Interdiction of Parker, 39 An. 333; Succession of Webre, 36 An. 312.
    A minor unprovided with a tutor can be cited through a curator ad hoc, and a judgment rendered against such curator ad hoc is perfectly valid and binding.
    It isnot necessary that the minor should berepresented by a tutor or tutor ad hoct he can be represented by a curator ad hoc. O. P. 116,961; Shaffet vs. Jackson, 11 An. 157; Henderson vs. Sadler, 35 An. 826; Keenan vs. Ahern, 31 An. 886; Buddeeke vs. Buddecke, 31 An. 571; Hooke vs. Hooke, 6 La. 172; Petrie vs. Wofford, 3 An. 562; Kimball vs. Dunn, 12 La. 115.

      Browne & Choate contra:

    1. A person notoriously insane not interdicted can not be sued. C. C. 1789, 1889, 102, 381; O. P. 102, 115, 195; Story’s J3q. Pleadings, 722, 725; 35 An. 33.

      2. An interdicted person is in every respect like a minor. He can only be sued • through his curator, if-he has one, ora special curator, who must be sworn before he can represent the interdict. O. C. 115, 313; 36 Anf 312; 37 An. 868.

      3. A person notoriously insane, living-outside of the State, can not be treated as-an “ absentee” and sued through a curator ad hoc. C. C. 402, 47, 52, 56, 58; C. P. 196, 116, 195, 964; 12 An. 299.
    4. A curator ad hoc is not competent to receive the price and grant a discharge., 36 An. 377.
   The opinion of the court was delivered by

McEnbry, J.

Plaintiffs, EmmaW. Hansell et al., being the owners of an undivided twenty-nine-thirtieths of certain improved-real estate in the first district of the city of New Orleans, on Magazine and Common streets, bring this suit for a partition against Henry H. Hansell, the owner of the remaining-undivided one-thirtieth interest. The petition alleges the ownership, and that Henry H. Hansell is a notoriously insane person who has never been interdicted, and to whom no curator has ever been appointed; that he is confined in an asylum in the city of Philadelphia, Pennsylvania, and it is necessary that a special curator and curator ad hoc be appointed to represent him and defend the suit; that F. F. Hansell, of the full age of majority, is the-brother of H. H. Hansell, and is the person who, under the law, would be appointed curator to said H. H. Hansell in ease he were to be interdicted. The prayer is that said F. F. Hansell be appointed special curator and curator ad hoc to represent said H. H. Hansell; that he be notified of his appointment and duly cited to answer the petition, and that there be judgment ordering the property sold at public auction, as provided by law.

In accordance with the prayer of the petition, F. F. Hansell was-appointed special curator and curator ad hoc of Henry H. Hansell, and was duly notified and served with citation to answer in due course. The judgment was regularly rendered, in accordance with the prayer of the petition, ordering a sale of the property at public auction. The sale was made and the properties were adjudicated, one to R. Maitre and the other to R. F. W. Bachman, who refused to take title for various reasons stated in their answer to the rule taken by plaintiffs on them, to compel them to comply with the adjudication.

The principal objection made by the adjudicatees, and the one upon which they insist most strongly, is that until H. H. Hansell has been interdicted and a curator appointed to him, as provided by law* he can not be properly brought into court and a binding judgment rendered against him; (2) they object on the ground that E. E. Hansell has never taken oath as special curator, and, therefore, H. H. Hansell was not properly represented, and the judgment rendered against him not a valid and binding one.

It is alleged in the petition that H. H. Hansell is notoriously insane, and this averment is proved by the testimony.

He has been in this condition for three years, and during that time has been confined in an insane asylum in the city of Philadelphia. His domicil is in that city.

The courts in this State have no jurisdiction of his person, and can render no decree affecting his personal status, aud interdict him.

The courts of his domicil alone have jurisdiction to ascertain his mental condition and to render the necessary decree relieving him of the control both of his person and estate.

No facts alleged, and no evidence received by the courts here, can place a person domiciled in a foreign jurisdiction among the class of persons incapable of managing their persons and estates.

A person alleged to be insane, whose legal domicil is in a foreign jurisdiction, can not, therefore, be represented in this State by the appointment of a special curator. Interdiction of Joseph Dumas, 32 An. 679.

The courts of this State must treat him as a sane person until the-courts of his domicil have decreed otherwise by interdicting him.

That part of the petition which alleges the insanity of H. H. Han-sell, and the order of the court appointing a special curator, may be-disregarded.

The petition does allege that he is an absentee and owns property in this State. A curator ad hoc was appointed to represent him as an absentee, and the proceedings for a partition were conducted regularly and contradictorily with him.

He is not represented in this State.

In the matter of the interdiction of Dumas above referred to, Dumas’ actual domicil was in France.

He had, when sane, given a power of attorney to an agent residing here. This court said, in the opinion announcing the decree, the lamentable disability with which it is alleged that Dumas was afflicted at the beginning of this suit, and which continued to dement him long afterward, was a mental malady, which could, no more than. «.ny other infirmity, produce the effect of revoking the procuration which he had given to his agent. It could be recalled, in a circumstance like this, only by actual, valid judgment of interdiction. Revised Civil Code, 3027.

“The institution of the interdiction suit did not revoke the power so entrusted. Gernon vs. Dubois, 23 An. 27.

“Even could such mental derangement put an end to the mandate, the consequence would only have been that Dumas would have to be treated as an absentee and his property taken care of and administered upon as provided by law in such cases. Revised Civil Code, 50, et seq."

H. H. Hansell can not be considered as an insane person, as his incapacity has not been declared by the courts of his actual domicil, where he can be personally cited.

He has property in this State. He is an absentee, and has no .known agent in the State to manage this property.

It must, therefore, be preserved and cared for as provided by the Code, Art. 47, et seq.

Article 56 of the Civil Code provides that “ if a suit be instituted against an absentee who has no known agent in the State, or for the administration oí whose property no curator has been appointed, the judge before whom the suit is pending shall appoint a curator ad hoc to defend the absentee in the suit.” No curator had been appointed when the suit was brought to take charge of the property of the absentee.

Article 116 of the Code of Practice also provides that a curator ad hoc must be appointed to represent the person intended to be sued, if he be absent and not represented in the State.

Neither of the above articles of the Civil Code and Code of Practice require that the curator ad hoc shall take any oath.

The absentee, H. H. Hansell, owned property in common with a resident of this State.

No one can be compelled to hold property in indivisión with another. Civil Code, 1289.

The rules established in the Civil Code, Art. 1289, et seq., are applicable to partitions between co-proprietors of the same thing when among the co-proprietors any are absent, minors or interdicted.

The only way of having the absentee brought into court was through the appointment of a curator ad hoc. The co-proprietor of the absentee Hansell had the right to demand a partition, and his only remedy was by proceeding against the absentee in the manner provided for by Arts. 56 of Civil Code and 116 Code of Practice.

The defendants in rule have urged other objections to accepting title to the property.

The objection that the signatures of the petition in succession of S. P. Hansell, in suit No. 32,246, Civil District Court, consenting to the recognition of their mother as universal legatee of the deceased, have not been proved, concerns only the parties to that suit. The judgment rendered in that suit is conclusive as to the genuineness of the signatures. It is presumed to have been rendered on sufficient evidence. We make the same remark with reference to the ■objections to the signatures to the agreement, annexed to the petition in the succession of Barnett Hansell, No. 32,247, Civil District Court.

The interest of the minor, Morris E. Hansel], it is alleged, was not •disposed of legally in the property adjudicated to defendants inrule. The agreement among the heirs and the surviving partners in the Hansell partnership seems to have been more for the j ust recognition of what belonged to the partnership, and the individual members of the same, rather than for the alienation of the property. The property was taken in the name of individual partners, and by consent restored to its proper ownership.

But whether this view is correct or not is immaterial so far as this •controversy is involved, as Morris E. Hansell, now 26 years of age, renounced all right, title and interest to said property, in open court, and put the declaration on record in the note of evidence, and is therefore estopped from asserting title or any claim whatever to ■said property.

There is a technical objection to the petition filed in the succession of Standish E. Hansell, No. 32,246, Civil District Court, that the signatures of the attorneys were not at the foot of the petition. One of the attorneys signed on the back of the petition inadvertently.

The suit was prosecuted to a judgment, and the parties directly interested interposed no objections.

The defendants in rule have no interest in opposing the want of the signatures to the petition. The judgment was not absolutely null and void, and could not be attacked collaterally.

We do not intimate even that it was relatively null, as the want of the signature to the petition was. cured by the judgment. ..The immediate parties to the suit only could urge the objection now opposed by defendants in rule.

It is also urged that there was no inventory of the property to bepártitioned, and no experts appointed to show that it was indivisible-in kind.

Civil Code, Art. 1339, provides that “when the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of one of the heirs, on proof of either of these facts, that it be sold at public auction,” etc.

Civil Code, Art. 1340, says: “It is said that a thing can not be-conveniently divided, when a diminution of its value or loss and inconvenience of one of the owners would be the consequence of dividing it.”

It appears from the record the party who held the property in common with the absentee was not an heir, and that it was the only property he owned in indivisión with him. An inventory was therefore unnecessary. It is to be presumed that before the order to sell the property at public auction was rendered, the judge had sufficient evidence before him to satisfy him that the property could not be conveniently divided in kind.

The averments in the petition as to the small amount of interest owned by the absentee in the property would indicate that the judge-who gave the order was satisfied on this point.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the relief prayed for be granted and the rule herein be made absolute.

Appellees to pay costs.


author: McEnery, J.

text:
    No. 10,959.
    Taylor Bros. Iron Works Co., Limited, vs. The City of New Orleans.
    Articles manufactured in this State for agricultural purposes, when more than five-hands are employed, are exempt from taxation under Article 207 of the Constitution.
    Articles not manufactured in this State, and carried in stock by the manufacturer with his articles manufactured here, although incidental to his business, are subject to taxation.
    When the assessment is null and void, being in contravention of the Constitutions, the nullity of the assessment can be urged at any time.

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

      A. L. Tissot and Branch K. Miller for Plaintiffs and Appellees:
    Movable property is not followed into the hands of the purchaser by a lien for taxes assessed in the name of the vendor.
    Where a party is assessed “ on merchandise and stock in trade,” which as a matter of fact is composed partly of goods exempt from taxation and in part of goods not so exempt, the tax will be canceled so far as concerns the exempt property, and will be maintained only as to the property which is not exempt. Carre vs. City of New Orleans, 41 An. 996; 38 An. 397.

      D. B. II. Chaffee, W. B. Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendant and Appellant:
    An application for a reduction of assessment made to the Committee of Revision is a condition precedent to a suit'for that purpose. Sec. 26, Act No. 85 of 1888, p. 122; Sees. 25, 26, Act No. 106 of 1890, p. 132; Shattuek & Hoffman vs. New Orleans, 39 An. 205; Leeds & Co. vs. Treasurer, 43 An. 813; 9. So. R. 488.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs are manufacturers of sugar machinery and agricultural implements.

The personal property in their business was assessed for ten thousand dollars, as merchandise or stock in trade. They obtained an injunction to restrain the city tax collector from seizing and selling the same on the ground that the assessment is in violation of Article 207 of the Constitution of the State. There was judgment for the plaintiffs reducing the assessment, and the city has appealed.

An objection was raised on the introduction of certain evidence by the city that, as plaintiffs had not made application in the proper time to have the assessment reduced or annulled, they were estopped from urging the same after the assessment bad been closed for correction.

Where property is the object of taxation this defence would be good.

But in this case the assessment is alleged to be null and void because in conflict with and in violation of an express constitutional prohibition.

If null and void when made because in violation of a prohibitory law no acquiescence can give it validity.

The plaintiffs carried in stock articles of their own manufacture.

Por the service of the engines, agricultural implements and sugar machinery that they manufactured, it was necessary for them to keep some articles which were accessories to the successful carrying ■on of their manufacturing interests.

They were agents for a certain line of steam pumps, which were ■ordered by telegraph for their customers. Sometimes they were not called for and would accumulate, and they would then be sold to any one who would buy them. They kept eight or nine of these pumps on hand. They also kept duplicate parts of these pumps and of western centrifugals and of Chandler and Taylor engines.

These articles carried in stock amounted to about §4000.

The excess in the assessment was upon articles manufactured by plaintiffs, and is therefore null and void. Art. 207 of the Constitution.

These articles which were not manufactured by plaintiffs are taxable. Smith & Boullemet vs. City, ante, p. —.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,966.
    Leeds & Co., Limited, vs. J. N. Hardy et al.
    The lien and privilege whereby the taxes tor 1880 were secured are subject to the prescription of three years.
    The property being owned by third persons, they are ineffective as against them.
    The same law which grants a privilege to the city to secure the payment of its taxes subjects that privilege to the prescription of three years.
    A purchaser who denies that there are any taxes due on the property he buys can not be held to have assumed the payment of taxes or to have acknowledged the lien and privilege by having added, after having denied that there were any taxes due, that if, however, there was any due he would pay them.
    The City of New Orleans is not liable in damages for having claimed taxes and a lien and privilege on the property for taxes, which the court holds are pre- ■ scribed.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      B. R. Forman for Plaintiffs and Appellees:
    1. Property employed in the manufacture of*machinery and agricultural implements, wherenot less thanfive hands are employed, is exempt from all taxation for a period of ten years from the adoption of the Constitution (December, 1879), say 1st January, 1880, to 31st December, 1889. Constitution, Art. 207.

      2. All taxes, tax privileges and tax mortgages are prescribed by three years, and this prescription is only suspended or interrupted by an injunction, which prevents the collection. Act 96, 1877, p. 142, Secs. 36,102; Act 77, 1880, p. 95, See. 24; Act 96, 1882, p. 130, See. 24; Act 98, 1886, p. 145, Sec. 34; Act 85,1888, p. 124, Sec. 33
    3. Unrecorded claims for taxes do not affect property in hands of third persons. Constitution, Art. 176.
    4 Assessments made in name of a person not the owner are void. Stafford vs. Twitchell, 33 An. 816, and other cases cited.

      W. B. Sommenille, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendants and Appellants:
    The city tax of 18S0, imposed by ordinance in December, 1879, on assessment r°^s furnished by the State Board of Assessors in November, 1879, were not repealed or affected by the adoption of Art. 207 of the Constitution subsequent thereto' New Orleans vs. Yergnole, 33 An. 36; Succession of Dupuy, lb. 258; New Orleans-vs. Lhote, 35 An. 1177; State ex rel. Stern vs.. Oity, 40 An. 697; 4SO.R.891; Louisiana Ice Manufacturing Co. vs Tax Collector, 42 An. 669; 7 So. R. 898.
   The opinion of the court was delivered by

Breaux, J.

This ease was remanded to be proceeded with in accordance with the views expressed in the opinion, ordering it to be remanded.

After it had been remanded a compromise was effected, in compliance with which all the taxes were paid, except those for 1880, and all the issues were settled, except those relating to the taxes sought to be collected for that year.

In remanding the case the rights of both parties were reserved. Leeds & Co. vs. Treasurer, 43 An. 813.

By agreement the evidence admitted at the first trial is of record in this appeal.

At the second trial plaintiff introduced the record of a suit of the City of New Orleans vs. Charles J. Leeds, No. 454.

It was proven in said ease that the taxes were levied on the assessment roll of 1879 against Charles J. Leeds, prepared by the department of assessments.

Ordinances of the council accepting and approving the rolls of that year, as the basis of taxation for the year 1880, were also introduced in evidence.

The City of New Orleans, in said case, sued Chas. J. Leeds for city taxes of 1880, levied on the assessment of 1879, for the sum of $1327.50. (Being the same taxes for which the present suit was brought.)

The defendant’s exception to this action [alleged no cause of action, inasmuch as the assessment rolls of 1879 were vacated by Sec. 5, Act 77 of 1880, which provided that “no State or parish taxes shall be collected on the assessment made in the year 1879.

Without waiving his exception the defendant filed an answer, in which he denied that the property described as being in square No. 122 belonged to him, bub alleged that it was the'Jproperty of Leeds •& Co., and he averred that the property was employed in the manufacture of machinery and agricultural implements, and that more than five hands were constantly employed in the said manufacture, and that it was, therefore, exempt from taxation.

As to this property, the District Court decided that he could not stand in judgment, as it was not his property.

With reference to the property in another square, viz., 202, as it belonged to the defendant, he was condemned to pay the taxes thereon, amounting to $247.50.

In all other respects the claim of the city was rejected.

The court reserved to the city the right to assert its claim against the firm of Leeds & Co. This judgment was rendered April 29,1881. No appeal was taken from this judgment. It is pleaded as res judicata, We will not decide that plea, for the reason that a decision on the plea of prescription disposes of the case. It appears of record that, on the second day of.August, 1878, the old firm of Leeds & Co., owners of the said manufacture, had been dissolved and a partnership was formed.

The interest of the said Charles Leeds in the partnership was nine-sixteenths and that of Miss Julia Leeds seven-sixteenths.

In June, 1889, it became the property of Leeds & Co., Limited.

In 1890 two lots of ground, viz., 8 and 9, in square 122, were advertised for the taxes of that year, due by Charles J. Leeds; also six other lots were separately advertised for taxes of the same year, situate in the same square.

Two other lots in the same square were advertised for taxes, of -that year, due by the said Leeds or Leeds & Co.

The act of sale from Leeds & Co. to Leeds & Co., Limited, contains the following:

“ That said Thomas Deeds, vice president of Leeds & Co., Limited, * * hereby assumes all the other debts and liabilities of the firm of Leeds & Co., composed of Charles J. Leeds and Miss Julia Horne Leeds, per act of Ohas. T. Soniat, notary, dated the 2d August, 1878, and in consideration of this assumption the said Charles J. Leeds and the heirs of Julia Horne Leeds do hereby sell, etc. As regards the tax inscriptions in favor of the city and State, mentioned in the mortgage certificate and as per the hereto annexed city and State tax certificates, the .said vendors declare that the above described property is exempt from taxation and should never have been assessed, and they declare that said taxes are not due, and they do hereby bind themselves to cause said inscriptions to be canceled from said certificates as soon as possible; however, it is agreed that, should said taxes be declared due, then the corporation of Leeds & Oo., Limited, shall pay same.”

The reservation contained in the judgment of April 26, 1881, did not bind Leeds & Co., third persons.

As to them it is as if no reservation had been made.

It is made manifest by the reasons for the judgment and the terms of the judgment, that the claim as against the defendant, except as to the amount before mentioned, was rejected.

We have noted the fact that part of the property for 1880 was assessed in the name of Charles J. Leeds, and that certain lots were assessed in the name of Charles J. Leeds and Leeds & Co.

'The corporation of Leeds & Co., Limited, third persons in law, of which corporation six different persons are the members, allege and prove that they are the owners of the said property since June, 1889, and they plead the prescription of three years.

Commencing with Succession of Samuel Stewart, 41 An. 131, in which it was held “that the lien, privilege and pledge resulting from the inscription of the taxes due the city of New Orleans from the taxes of 1880 and 1882, are prescribed, but that the taxes of 1880 and 1882 are still due said city, which remains as an ordinary creditor for the amounts thereof and entitled to be paid accordingly,” this court has uniformly decided that the three years’ prescription applies to tax liens and privileges, but not to the taxes themselves.

This principle was reaffirmed in the case of Leeds & Co. vs. Treasurer, 43 An. 812.

Whatever of personal responsibility remains against the tax debtor can hot be invoked as against third persons.

They can only be held for tax privileges extant.

There are no proceedings under which third persons can be held for the payment of such a tax.

Not long since a question in pari materia was before this court for determination.

“ The city,” said the court, admits that the liens and privileges are presented for the taxes of 1887 and prior years; therefore, we-are relieved from the necessity of examining that question.

“ We can discover no possible force in the city’s contention that plaintiffs must be denied relief, because it was stipulated in their act of mortgage that the mortgagor should pay the accruing taxes.

* ' * * The city further contends, as we understand it, that plaintiffs are entitled to no relief of the prescription of the privileges, because the taxes themselves are not prescribed. * * The code defines a privilege to be ‘a right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have a mortgage.’ ” O. 0., Art. 8186.

‘ ‘ The law granted this privilege to the city for its taxes; but the same law declares that the privilege should be prescribed by three years.”

* * * “ Obviously\ when the privileges for these taxes were prescribed, the taxes became mere personal claims against the tax debtor, having no greater rights against this particular property than against any other property of the debtor.” Schelefield, Goodman & Go. vs. Succession of B. J. West & Oo., ante.

We therefore conclude that the lien and privilege, as against the plaintiff, are prescribed.

The defendants contend in argument that by the express assumption before copied in our opinion plaintiffs are estopped from contesting the- regularity and legality of the assessments upon which the taxes involved were levied.

We limit the issue entirely to the question of prescription of the lien and privilege, and eliminate from consideration “all questions of the regularity and legality of the taxes,” as they present issues not necessary, to decide in the ease.

A purchaser who denies in the first place that there are taxes due on the property he buys can not be held to have assumed the debt and to have taken the lien and privilege by which it is secured out of prescription in having added that if, however, there were any taxes due he would pay them. That an assumption of a debt may be judicially enforced it must be clear, explicit and certain.

The plaintiffs not having assumed the debt, and not having acknowledged the lien and privilege, are not estopped.

“An estoppel must be certain to every intent, and is not to betaken by argument or inference.” Best., p. 527.

Plaintiff alleged that it has been damaged in attorney’s fee, vexations and annoyances in the sum of $500.

The court a qua decided that the taxes could not be recovered,, and allowed damages in the amount claimed.

The city through counsel acted in good faith.

The questions were properly litigated, and do not manifest the least desire to annoy or to be vexatious.

We have not discovered the least ground for allowing damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed in so far as it perpetuates the injunction sued out, and in every respect, except in so far as relates to the sum of five hundred dollars as damages with legal interest from January 4, 1892,” which are rejected, and in that respect the judgment is amended and no damuge is allowed.

As amended the judgment is affirmed at appellee’s costs.


text:
    No. 10,929.
    Mrs. T. I. Brady vs. Her Husband.
    Appeal dismissed; both appellant and appellee moving (or dismissal.
    APPEAL from the Civil District Court, for the Parish of Orleans.. Voorhies, J.

      Henry P. Dart for Plaintiff and Appellee.
    Buck, Dinkelspiel & Hart for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendant for a separation from bed and board, also for an injunction restraining the defendant from alienating the property of the community.

The defendant filed the plea of general denial.

A short time after, the plaintiff by rule prayed to be allowed alimony, as she was without means of support.

After legal hearing she recovered alimony, to be paid monthly by her husband.

From this interlocutory judgment allowing her alimony the defendant has appealed.

On appeal the attorney representing the plaintiff filed a motion to dismiss the appeal on the ground that it is premature and from an interlocutory judgment, and that this court is without jurisdiction ratione materias.

The appellant also files a motion to dismiss, and annexed to it a copy of the judgment dismissing plaintiff’s suit in the District Court.

Both the appellant and the appellee move to dismiss the appeal.

It is therefore ordered that the appeal be dismissed at appellant’s costs.


text:
    No. 10,921.
    The State ex rel. City of New Orleans vs. St. Charles Street Railroad Company.
    The St. Charles Street Railroad Company, under its contract with the city of Xew Orleans, was to plank Baronne street from specified points.
    The city of New Orleans having caused the contract to pave this street between the said specified points to be adjudicated to the Rosetta Gravel Paving and Improvement Company, and the defendant company having submitted propositions which have been acted upon to pay part of the cost of graveling the street in lieu of the performance of its paving contract, the city must rescind its ac - tion in'the matter of the said adjudication and of cost, if there be cause, before suit can be maintained to enforce the original contract.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Sami. L. Gilmore, Assistant City Attorney, for the Relator, Appellant.

      Harry H. Hall for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The relator sues to compel the defendant to plank Baronne street, alleging that the defendant bound itself- by contract to plank all mud streets through which its tracks shall pass, with the exception of Dryades street.

The defendant answering says:

That it is ready to comply with its contract by planking Baronne street, from Howard avenue to a point about equi-distant between Sixth and Seventh streets, being that part of Baronne street occupied alone by its tracks, but that the property holders objected, and' presented a petition to the Common Council for permission to pave Baronne street with Rosetta gravel.

That the City Comptroller advertised for sealed proposals to pave the said street, paved with the said gravel.

That the Mayor was authorized to contract with the Rosetta Gravel Paving and Improvement Company to pave the said street, and that the city has by its several acts made it impossible for the defendant company to comply with the alleged contract.

Judgment was rendered dismissing plaintiff’s suit, as in case of non-suit, from which the relator prosecutes this appeal.

The petition of the property holders on Baronne street states that the defendant company has consented to pay the amount that would be required for laying a plank road on the said street.

It is also shown that a committee reported to the Common Council that defendant company have generally complied with their contracts, except in so far as relates to the planking on Baronne street, and this “ default the company are hardly responsible for, as the property owners objected to the planking and failed to agree upon a substitute. The question is now practically settled, however, the property owners having petitioned for a general gravel pavement, the railroad contributing to the expense of same what it would cost to plank the street.”

Subsequent to the contract entered into between the plaintiff and the defendant company, the right to gravel this street was adjudicated to the Rosetta Paving and Improvement Company.

The defendant company having acquiesced in this adjudication and promised to pay the cost of planking the street, instead of actually planking it, under the original contract, a difference has arisen about the cost to be paid by the defendant.

The following is an extra’ct from a letter of the president of the ■defendant company addressed to the City Surveyor:

That the St. Charles Street Railroad Company is willing to pay in full discharge and satisfaction of its obligation, to plank Baronne street, as aforesaid, a sum equal to ñftycents per superficial square yard for each such yard of gravel laid on Baronne street between its track and gutter.

“ That it will expend five cents for each superficial square yard'

* * in repairing said street,” etc.'

Several witnesses testify that this is less than should be paid.

The question remains undetermined.

Were this cost agreed upon or fixed, no reason is stated why the street should not be graveled in compliance with the' ordinance on the subject.

All parties concerned favor the change proposed from plank to gravel, and have, in due form, expressed a preference for the latter.

The question to be settled (it seems to be the only cause of disagreement) is as to the cost which should be paid by the defendant, to be applied toward graveling the street.

Although evidence was admitted on the subject, that issue is not before us for decision.

Unless the action of the Council be rescinded for cause, or issues-be presented to the court and evidence adduced showing an unwillingness of the defendant company to comply with its obligations, necessity for judicial action does not arise.

We agree with the district judge that the action is premature, and that until the question of the gravel contract has been settled and the rights under the contract adjudicated to the gravel company is-determined, this suit is premature.

Judgment affirmed at appellants’ costs.


author: Bermudez, J.

text:
    No. 11,026.
    The State ex rel. Elias Block & Sons vs. H. N. Rightor, Judge.
    The law fixes no standard for the amount of the bond to be given by a party who wishes to take a suspensive appeal from a judgment refusing him a participation in funds in the hands of the court. A bond for costs is sufficient. The appellant can be condemned to pay nothing elte. A bond for more would be oppressive and an idle ceremony.
    The ruling in 22 An. 115, State ex rel. AVasscll vs. Judge, lias no bearing. The case is not analogous, as there was no fund in court for distribution.

      y^PPLIOATION for Mandamus.

      W. 8. Benedict for the Relators.

      Henry L. Lazarus and Hunter C. Leake for the Respondent.
   The opinion of the court was delivered by

Bermudez, J.

This is an application for a mandamus to compel the district judge to grant the relators a suspensive appeal on a bond for costs.

The averments are that C. Lazard & Oo. having brought suit against Henry Block & Oo. for $31,000 and more, coupled with an attachment under which property was seized and money realized to a large amount, $10,000 or more, which are in the sheriff’s hands. Elias Block &Co. intervened, claiming to be creditors of the defendants, levying their attachment on the same property and traversing the claim of the original piaintiffs; that after trial, the court rendered judgment in favor of plaintiffs, rejecting the intervention of Elias Block & Co.; that thereupon the latter applied for a suspensive appeal from the judgment so rendered, tendering a bond for $2000, but that the judge declined to accept said bond and required one to be’ furnished, according to law, less the. amount in the sheriff’s hands, meaning a bond for one-half over and above the difference between the amount of the judgment and that in the sheriff’s hands.

The district judge substantially answers that the bond required by him is that prescribed by layr, for the reason that a third party is no more allowed to suspend a money judgment on a bond for costs than the defendant in the case could, and therefore that such party is bound to furnish a bond for the same amount that the defendant would have to give — should he apply for a suspensive appeal.

The only effect of the appeal taken within the ten days following the signature of the judgment would be to prevent a distribution, as far as the intervenors are concerned, of the moneys in the sheriff’s hands.

The law fixes no standard for the amount of the bond to be given by a party who wishes to take a suspensive appeal from a judgment refusing him a participation with others in a fund in the hands of the court. A bond for costs is sufficient. C. P. 579; Blanchin vs. Fashion, 10 An. 345; see also 20 An. 108; 22 An. 178; 27 An. 185; 30 An. 314; 37 An. 428.

In the case of State ex rel. Wassell vs. Judge, 22 An. 115, invoked, it does not'appear that there was any fund in court for distribution, in which the intervenor sought to participate. If the object of the appeal by the intervenor was to suspend 'execution against the defendant to satisfy the judgment, he could do so only by giving the bond which the defendant would have been bound to furnish, to stay execution'on a suspensive appeal. The court itself differentiates between the Blanchin vs. Fashion case in 10 An. cited and the case before it.

The bond could only be for the satisfaction by the surety of the judgment to be rendered on appeal, should the principal fail to pay it. In no event could the relators be condemned on appeal to pay more than the costs. Requiring a bond for more would be oppressive and an idle formality.

It is therefore ordered and decreed that the mandamus prayed for be made peremptory, and that the suspensive appeal asked be allowed on the bond of $2000 offered, which appears to be ample.

On Application por a Rehearing.

Article 579, O. P., distinctly provides that the appeal bond must set forth in substance that it is given as surety that the appellant shall satisfy whatever judgment may be rendered against him on appeal.

It is palpable that, on appeal, he could not be condemned to pay a judgment rendered against some owp else, and that the only one which could be pronounced against him, as a dismissed plaintiff appealing, would be for costs.

Reference to the case of State ex rel. Wassell vs. Judge, 22 An. 115, affords relator no relief. It is not an analogous case, as there was no fund in court.

The question, whether the appeal -by the relators would suspend the further execution of the judgment against the defendants and the garnishees, does not arise here and is not decided, although it may well be that it does not, so as to realize money for distribution without making any repartition. The funds are arrested only to an amount sufficient to meet the claim of relators.

Rehearing refused.


author: Bermudez, O. J.

text:
    No. 10,030.
    The State ex rel. J. B. Chandler vs. E. B. Kruttschnitt, Judge ad hoc.
    Writs of certiorari and prohibition can not be allowed in an appealable caseto revise interlocutory decrees and a final judgment rendered therein. Such decrees and judgment may be reviewed and corrected on appeal.

      A relator is the less entitled, to the summary relief asked, through the writs, where he has applied for an appeal and one has been allowed him.
    An order granting an appeal would be irregular if it directed the insertion into the transcript of records filed in evidence. The direction would be a superfluity.
    It is the duty of the clerk, without any instruction from the court, to copy into the transcript all the evidence adduced on the trial of the case.
    y^PPLIOATION for Certiorari and Prohibition.
    Relator in propria persona.

    Respondent in propria persona.

   The opinion of the eonrt was delivered by

Bermudez, O. J.

This is an application for writs of certiorari and prohibition.

The relator complains that, in the course of the trial of a suit brought by him, before the Civil District Court for the parish of Orleans, for the nullity of a judgment rendered in the succession of Emily Glover, the judge ad hoc has, in a number of instances, which are elaborately specified, made erroneous and arbitrary rulings, and has finally decided the controversy by a judgment, unwarranted by the evidence and the law, rejecting the demand; that he has applied for a suspensive appeal, which was denied him.

The prayer is for a writ of certiorari directing the judge ad hoc to send up the record in the ease, together with others, filed in evidence therein. He asks that the judge ad hoc be restrained from proceeding in said ease until otherwise ordered by this court, and that, after hearing, all the acts complained of be declared nullities and invalidated, and that the judge ad hoc be ordered to proceed in the case according to law.

The judge ad hoc returns that the relator has applied for and has been allowed a suspensive appeal, in manner and form set forth in the certified copy of the minutes of the court a qua, annexed to and made part of the answer; that it is untrue that this defendant refused plaintiff a suspensive appeal, but that defendant did refuse, in .the order for said suspensive appeal, to render further order not ■germane and in no manner relevant to said motion of appeal.

The suit instituted by the relator is appealable, judging from the description given of it by him in his application for relief in this court, and from the fact that he has moved for an appeal from the judgment rendered in it.

Owing to its appealability and to the circumstance that an appeal has been asked and allowed, it is clear that the relator can not have the rulings and the judgment on the merits complained of reviewed by this court in these proceedings.

When the transcript will have been filed and the case submitted, it will become the duty of the court to consider and determine the complaints of the relator, redressing his grievances if he has sustained any.

The relator does uot ask for a mandamus to compel the judge ad hoc to grant him an appeal in the form in which he says it should have been allowed.

Nevertheless, as the judge ad hoc has put the matter at issue, and appended to his return an extract from the minutes of the court, which shows the nature of the motion for an appeal, and the action of the judge upon it, the complaint may as well be determined.

The motion states that three original records, designated by numbers, and four printed statements or briefs filed therein, are necessary for an intelligent review of the fraudulent practices of defendant and attorneys, and that there is error to the prejudice of the mover in the final judgment rendered, dismissing the suit, and that mover desires to appeal therefrom.

On this motion the judge ad hoc ordered that the mover be allowed a suspensive appeal from the judgment, returnable to this court on the third Monday in March, 1892, the bond being fixed at $250.

The motion does not ask that the three records be copied in the transcript, and had it done so it would have been a surplusage, as, if they were filed in evidence, it would be the duty of the clerk to ■transcribe them.

The order of appeal granted is in the usual and proper form, and would have been irregular had it directed the insertion of the records in the transcript.

It is therefore ordered that the application herein be refused, with costs.


author: Fenner, J.

text:
    No. 11,024.
    The State of Louisiana vs. Tom Townsend.
    In absence of any special rule of court fixing' cases for trial when reached, on the docket, the defendant in a criminal case can not be ruled to trial without a previous setting- of his case or other proper notice giving- him time to subpoena his witnesses.
    APPEAL from the Twenty-seventh District Oourt for the Parish of Richland. Williams, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      Todd & Todd and Fergus Kernan for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The bill of exceptions recites, in substance, that, prior to proceeding with the trial, counsel for defendant represented to the court that a material witness, residing in the parish, and without whom he could not go to trial, was absent, and that, although he had issued a subpoena for him, there had not been time to serve it; that the case had just been called, and that there had been no previous setting of the case for trial; that he was entitled to time to have his witness served; and that the granting of a short time would be sufficient. The judge overruled the application and proceeded with the trial. The judge, in his statement appended to the-bill, does not contradict or traverse any statement therein contained, but simply based his action on defendant’s lack of diligence. Both the judge a quo and the Attorney General seem to treat this as a mere ordinary application for a continuance on the ground of absence of a witness. If it were such, it would not be entitled to .a moment’s consideration, not being supported by any affidavit as to the materiality of the evidence or other necessary facts.

We regal’d it in a much more serious light, as an objection to going to trial on the ground that the case was called without having-been previously set for trial, and without the allowance of any time whatever to the defendant for the summoning of his witnesses.

It is true that this court has held that “ Where the court has-adopted a special rule authorizing such a mode of procedure, a case may be called on being reached on the regular docket before it has. been fixed for trial.” State vs. Lartigne, 29 An. 642.

The judge does not advise us that any such rule has been adopted in his court, and we can not presume it. The statements of the bill,, approved by the judge’s signature, strongly suggest the contrary.

The adoption of such a rule would have operated all needful notice to defendant and would have puthim under the necessity of diligence-to be ready with his witnesses when his case was reached upon the docket.

But certainly defendant is entitled to some kind of notice as to when the trial of his case will be taken up. Under the showing made by this bill, we think the objection was well taken, and the judge erred in overruling it.

It is therefore ordered that the verdict and judgment be annulled and set aside, and that the ease be remanded for further proceedings according to law. .