source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,844.
    R. Martin vs. Jacob Langenstein.
    Sales for taxes due by property assessed for years anterior to, tlie Constitution of 1879, are regulated by the miscellaneous ordinance, on tlie subject, appended next to Article 2i>8, and by tlie Acts of 1882 and 1881.
    Sales for taxes subsequent thereto, come within the purview and provisions of Article 210 of the Constitution, which requires emphatically a notice, other tlmn by publication, to the delinquent tax debtor and statutes in furtherance.
    The law does not require, to perfect a tax title, that the divested owner shall voluntarily place the purchaser in possession, or that the purchaser shall, in the absence of resistance, institute judicial proceedings and be put in possession by the sheriff. The purchaser may enter when there is no difficulty.
    The ruling in Breaux vs. Negrotto, recently decided, applies to sales for taxes, since the Constitution and those in the Lake and Douglass cases refer to sales for taxes, precious to the Constitution, touching which notice by publication suffices.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Jos. H. & Zaeh. Spearing for Plaintiff and Appellee:
    1. Needs of sale under Act 82 of 1884, have been recognized by this court, as valid titles to real estate, and this is especially so where it is shown that the owner was alive during the years for the taxes of which the property was sold. In re Lake, 40 An. 143; in re Douglas, 41 An. 766.
    2. The only defense herein set up and the only objection made to the title by defendant, is that the former owner did not receive the notice rcciuired by law. This was the only objection to plaintiff’s title 'and is the only issue plaintiff is called upon to meet.
    The property was sold to enforce payment of taxes for 1871 to 1878 inclusive, which were assessed under Act 68 of 1870, Ex. Sess., p. 126; Act 42 of 1871, p. 104; and Act 69 of 1877, Ex. Sess.,p. 136; and under these acts the former owner,®. Jlurtlie, in whoso name the property was assessed for all of said years and who was alive during all those years, received all manner and kind of notices, personal and by publication. See Act 68 of 1870, Ex. Sess , p. 126; Secs. 45, 46, 56, 57, 65, 66 and 67; Act No. 42 of 1871, p. 104, Secs. 23, 40, 45, 55, 57, 66, 67 and 6S; and Act 96 of 1877, p. 136, Ex. Sess., Sees. 28, 29, 33, 36, 53, 84, 87, 88, 90 and 97.
    Officials are presumed to have done their duty until this presumption is overcome by some sort of evidence.
    ■3. Plaintiff having been in physical and undisputed possession of the property since October, 1885, and the same having been assessed in his name for 1886 to date, all actions to annul the said sale to him are prescribed by the prescriptions of three and live years. Villey vs. Jarroau, 33 An. 291; Barrow vs. Wilson, 39 An. 404; McDougal vs. Monlezun,39 An. 1005; Breaux vs. Ncgrotto (recently decided), Act 105, Sec. 5, of 1874.

      Henry P. Dart for Defendant and Appellant:
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to compel the defend■ant to accept the title offered him, to property which he had agreed to buy, and which he declined because it is not good and valid.

The property was purchased by the plaintiff, at a tax sale by the Collector, on the 10th of July, 1885, for taxes of 1871 to 1878 inclusive, under the provisions of Act 82 of 1884.

The deed was delivered to him on the 30th of September, 1885, and registered in the conveyance office same day.

Since then, the plaintiff has been in the undisturbed possession of the property, which has been assessed in his name each year, and he has paid the State and city taxes due thereon.

The property, previous to the sale, had been assessed in the name of E. Burthe from Í870 to 1879.

The objections to the title are (1) that the former owner has not voluntarily yielded possession to plaintiff, and that, in default, the sheriff, under proper proceedings, did not put plaintiff in possesion ; (2) that the former owner has not been notified, as the Constitution requires.

In relation to the first objection, it is enough to say, that the law never contemplated that the title of a purchaser of property, at a tax sale, could be forfeited only if the divested owner voluntarily yielded him possession; or, that, in the absence of such, the purchaser should invoke the powers of the judiciary to be put in possession, and should enter the property.

The law does not require vain things. Purchasers might have to wait quite long, if they were made to depend upon the willingness of expropriated owners to place them in possession, and they are not required, where no resistance is offered, to institute judicial proceedings, and to have the executive of the court, by force, to put them in possession, where there is no necessity for it. They have the right to take possession themselves, whenever, they can do so without difficulty..

In relation to the second objection, it is apparent that it is groundless.

The defendant misconstrues the ruling in the case of Breaux vs. Negrotto, recently decided, which presented the feature of a tax sale, for taxes due since the adoption of the present Constitution, Article 210 of which requires that notice be given, otherwise than by publication, to the delinquent tax debtor.

It has no application to a case, like the instant one, in which the sale was made to satisfy taxes, anterior to the adoption of the Constitution, and which is controlled by the decisions in the Lake and Douglas suits (40 An. 143; 41 An. 766), which relate to like sales, for similar taxes.

In the Breaux case we declared that the act of 1888-, which dispensed with notice required by Act 210, could not do so, and we ex-' plained and regulated the decision in Barrow vs. Wilson,[39 An. 404.

The presumption is that the previous owner was notified, as required by the acts of 1882, and there is nothing to show the reverse.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,698.
    Samuel E. Moore vs. The Edison Electric Illuminating Company.
    In order to recover damages for injury sustained, it is necessary to show that the same was caused hy the fault of the party from whom indemnity is claimed.
    A traveler is presumed to know the use of a seat from that of a window. The former is to sit in, the latter to admit light and air. The seat he may occupy, the window he can enjoy, not occupy. It is negligence to put out his limbs, when they ought not to be, and expose them to be broken without his ability to know whether there is or was danger approaching.
    A person is answerable for his negligence only so far as it is the natural and proximate cause of the injury, and not when the consequences arise from a conjunction of his fault with circumstances of an extraordinary nature.
    A passenger who, in the night time, puts his head out of a window to ascertain the color of the car and identify it, whose head is bruised and who is much injured,must show, to recover, that he had a legitimate andpmsi>¿<7 object in view, which could not bo otherwise accomplished, and that his head struck against an obstacle which the defendant company had no right to place where it was when the accident occurred, knew to bo dangerous, gave no warning, and negligently kept there.
    If, in projecting his head out of the window, he sustain injury, he has no one to blame but himself for his rash act. lie should have applied to the driver for information. Had he used ordinary care and prudence, the injury would never have happened.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Harry H. Hall and H. (?. Morgan for Plaintiff and Appellee:
    1. “ It is not negligence.per.sc for a passenger to expose his hand or arm outside of a street car.” 5 Mo. App. 471; 6 Cent. L. J. 333; 41 Cal. 10Ü; 17 SYis. 487; 39 Mo. 468; 52 Mo. 283; Am.andEng. R. R. Cases, 37, p. 166; 51111s. 333.
    2. “ While there is a difference of opinion as to whether a passenger upon a steam railway train is guilty of negligence as a matter of law in riding with his arm projecting from the car window, this has never been asserted of a passenger upon a street railway in a similar position. It is evident that there is not the same reason for the rule.” Thompson on Carriers of Passengers, p. 446, and authorities there eiteO; V. Summers, R. R., 34 An. 146.
    3. “ If the injured person had no actual knowledge of the danger that threatened him, and if in the exercise of ordinary care under the circumstances, he would not have apprehended such danger in time to have avoided the consequences of defendant’s negligence, he can not be eliarged with contributory negligence. It follows that there must be knowledge of the danger or sufficient reason to apprehend it, to put a reasonable and careful man on bis guard, or there can be no contributory negligence.” American and English Encylopcediaof Law, vol. 4, b. 34,.and authorities there cited; Thompson on Carriers, 446; 145 Mass. 541, 569; 51 Ills. 333; 23 An. 461; 31 An. 146; 70 Pena. St. 86.

      Carroll & Garroll for Defendant and Appellant:
    Polos being required for the business carried on by telephone, telegraph and electric light companies, necessary in all modern cities, and locations for such poles having been assigned by competent authority, a person who injuries himself by running against a pole so located, has no claim for damages even if he be free from fault. In this case, defendant’s polo, located by the city surveyor, being no nearer to the car lines than otherpoles, trees and structures in the city, was properly and legally placed, and defendant is not to be blamed if plaintiff has injured himself by running against it. It is acaso of damnum absque injuria. See Sutherland on Damages, Vol. 1, p. 8; Wharton on Negligence, Sec. 25.
    An action will not lie for damages resulting from a lawful act. Defendant is not at fault and should not be condemned. Donovan vs. City of New Orleans, 11 An. Til; Barbin vs. Police Jury, 15 An. 559; Koelmol vs. Railroad Co., 27 An. -442.
    The evidence shows that the direct cause of plaintiff’s injury was his own act in projecting his head from the window of a moving car to ascertain its color, when there was no necessity or occasion for such an unsual or unheard of act, plaintiff being ableto inform himself by inquiring from,the ear driver, or any of his fellow-passengers. Plaintiff was guilty of contributory negligence, and consequently should not recover, whether defendant is at fault or not. Wharton on Negligence, Sec. 800; Kill vs. Railroad Co., 11 An. 292; Knight vs. Railroad Co., 28 An. 462; Mereier vs. Railroad Co.. 28 An. 264; Hanson vs. Railroad Oo., 88 An. 111.
    A traveler who sustains personal injuries by reason of allowing his arm or elbow to be outside of the window of a car can not recover damages. Laing vs. Colder, 8 Penn. St. 479; Wharton on Negligence, See. 861; 3 Allen, 18; 7 Allen, 207; 29 Ind. 85.
    A party from whose negligence an injury to himself flows in ordinary and natural sequences can not recover from a party whose negligence contributes to the injury. An intoxicated person, or a person driving recklessly, can not recover for an injury caused by a collison with an object negligently on the road, because, in the usual course of events, a person who is drunk or drives recklessly, precipitates himself against whatever is in his way; and, as something in an ordinary drive will be in his way, the question of defendant’s negligence is immaterial. Wharton on Negligence, Bee. 832; 11 Hast. 60; 12 Q. B. 448.
    The decision in Bummers vs. Railroad Company, 84 An. 189, can not avail plaintiff, because, in that case, Summers was allowed to recover solely on the ground that, in allowing his elbow to slightly project beyond the car window, he was following the established custom in New Orleans; while in this case the plaintiff shows the existence of no custom tending in the direction of the act committed by him. On the contrary, by his own admission, he never knew any otherperson to act as he did, and the evidence Is overwhelming to the effect that passengers are not in the habit of projecting their heads and bodies from moving cars.
    liven if defendant be liable, the evidence shows that the damage sustained was but trifling, and, if any amount be allowed, the sum oí $200 would be liberal. Bee Tucker vs. Railway Co., 42 An. 114; Van Amburg vs. Railroad Co., 87 An. 650; Myham vs. Louisiana Co., 41 An. 964; Moses vs. Railroad Co., 39 An. 649; Rutherford vs. Railroad Co., 41 An. 793; Maher vs. Railroad Co., 40 An. 64; Barnes Vs. Beirne, 36 An. 280; McGuire vs. Ringrose, 41 An. 1029; Montgomery vs. Koester, 35 An. 1093; Hudson vs. Railway Co., 38 An. Ill; Sullivan vs. Railroad Co., 89 An. 800; Yates vs. Louisiana Co., 40 An. 470.
   The opinion of the court was delivered by

Bermudez, O. J.

This is a suit to recover $15,000 damages for injury sustained in consequence of the alleged negligence of the defendant company.

The petition avers that the company planted a pole at the corner of Royal and Canal streets, in this city, in dangerous proximity to the Canal, Coliseum and Upper Magazine street line of cars, thereby illegally obstructing the same as a highway; that on June 8, 1888, petitioner, at .about midnight, entered one of the cars of that line, and, believing he had not taken the one he intended to, he put his head a few' inches out of one of the windows to identify the car by its color; that, at that moment, the car was passing the pole in question; that his head was caught and jammed between it and the upright frame of the car window; that his head was badly mashed and injured, and his forehead disfigured for life; that he was incapacitated thereby, for many weeks, from earning his livelihood, suffering great physical and.mental pain; that defendant had full knowledge of the dangerous proximity of said pole, permitted it to remain where.it was, after such knowledge, and did not notify the public.

Certain exceptions were filed, which were overruled, and followed by answer which contains a general denial and the averment that the pole was lawfully placed where it stood; that the location thereof was directed and authorized by municipal authority; that it was not on a public highway; that the damage was not due to defendant’s fault or negligence, but wholly and entirely due to the plaintiff’s own imprudence and carelessness.

The case was tried by a jury, who returned a verdict for IISO, on which judgment for as much was rendered. After a fruitless motion for a new trial, the company appealed, and is met with a prayer for an amendment, with an increase, to'the full amount claimed.

The salient facts established by the record are the following: ■

On the 8th of June, 1888, the plaintiff closed his store between 8 and 9 in the evening, and, in the company of a friend, went down town, to buy a hat. Finding the hat store closed, they went around, stopping at a saloon, where they took some beer. They afterward jumped into a car, on Canal street, to return home. Supposing he ■had not entered the right car, plaintiff, remaining seated, merely turning his head, put it out, three to four inches. It struck against a hard substance. He cried out, “I am cut.” There was a wound on his forehead, and some bleeding followed. He was taken to a drug store, remo ved to the Charity Hospital, where he was taken care of, and thence, in the morning, he returned home.

It appears that he suffered for a while,' and that a scar will probably remain on his forehead, to wear away in the course of time.

The proof also shows, that the pole referred to was placed where it stood with the authority of the city; that it had a basis of about fourteen inches, and was eight inches from the car, measuring from the bottom of the window through which the plaintiff passed his head.

It would be unnecessary, and therefore cumbersome and tedious, to go into further details in relation to the surrounding circumstances of the accident, as enough has been stated to determine the issues between the parties.

There can be no doubt that the plaintiff was hurt, and suffered in consequence; but from that fact it does not necessarily follow that the defendant company must be held to indemnify him, for it is clear that the company can be so held, only, if it was the cause of the injury sustained.

There is nothing to show that plaintiff’s head was caught between the pole and the car window, and, in consequence, was mashed and injured; for plaintiff himself declared that he did not put his head out more than three or four inches, merely turning his head; and the plan made, showing how the pole stood, and in evidence, indicates that it was at eight inches from the car window.

There was, therefore, a space of some four to five inches between the head of plaintiff and the pole, and it is more than a truism that bodies do not meet, as long as there exists an intervening space between them.

Such being the condition of things, as proved by the plaintiff and the evidence introduced by him, how can it, with any degree of seriousness, be affirmed, that his head was caught between the pole and the car window?

It must be remembered that plaintiff was injured some time about midnight, on the 8th of June, 1888, after a walk about the city, the taking of some beer — a recreation of a few hours.

The driver says that when, plaintiff sat down, he put his head on his arm, which projected about four inches.

It is true that this circumstance is denied; but it is entitled tesóme consideration, as it is stated by a disinterested 'witness, an utter stranger, who had none either to please or to protect.

It is extremely difficult, not to say impossible, to realize how it occurred that plaintiff’s head and the pole ever came in contact. It is shown that he was hurt only on one side. Had his head been caught between the two, there would have been a pressure, probably a crushing of the skull, surely some bruise of the brain, and two marks on the head, with fatal results; there was nothing of the kind.

The probability, not to say the certainty, is that he projected his head out of the window, for some purpose, or other, and instantly drew it back, striking his forehead on the upright frame of the car window; and sustained, thereby, an injury. For this, he has no one but himself to blame.

Yielding, however, to the theory, unverified though it be by the facts, that his head was caught, and that he was injured, as he says he was, the question arises, whether he is not alone responsible to himself for the harm sustained.

It is a striking circumstance in this case, that there was no suit .brought against the railroad company; for, if it be true that the facts and the law are as plaintiff represents them to be, it does appear that he would have had a good action against the railroad company. If the pole was dangerous, the railroad company was bound to know it. It should have sought its removal, should have warned travelers in its cars, by proper notice; and on failure to do such things, as it ought to have done, and did not do, and injury was in consequence sustained, it might_have been held to respond by adequate compensation.

The plaintiff abstained from suing the railroad company, no doubt, because the latter would have joined issue, by merely stating that he had no business to project his head, although, to some extent, as the courts have held, he might, owing to custom and local exigencies of climate, have allowed his elbow reasonably to protrude from the inside out by the window. What the railroad company could have said, may not the defendant here equally set up?

It has been well said that a passenger is presumed to know the use of a seat from that of a window. The former is^used to sit in, the latter to admit light and air, each having its separate purpose. The seat, he may occupy in any manner most comfortable to himself; the window he can enjoy, but not occupy. Its use is for the benefit of all, not for the comfort of him -alone, who, by accident, has gotten nearest to it. His negligence consists in putting his limbs where they ought not to be, and expose them to be broken, without his ability to know whether there is, or not, danger approaching. Wharton, Sec. 381.

“ In actions for injuries through negligence, it is a general principle that a person is answerable for the consequences of his negligence only so far as they are the natural and proximate results of the injury, and might have been anticipated by ordinary forecast, and not for those consequences arising from a conjunction of his faults with circumstances of an extraordinary nature.” Weeks on Damnum absque injuria, Sec. 115, p. 230.

It is no justification, in the present instance, to say that the plaintiff, in putting his head out, had a legitimate object in’view, that of ascertaining the color of the ear, to know if it was the right one.

It is not customary to ’put one’s head .out of a street car to find out about it. Common sense and prudence both dictate that, where a traveler, or passenger, desires information on such subjects, he should apply to the driver, whose duty it is to give it.

If a passenger has the right of putting out, besides his elbows, his head and chest, why should he not, also, have that of stretching out his arms, legs, and even hanging out his whole body?

The rulings in the Summers case, 34 An. 139, and in other kindred ones, some of which are cited in plaintiff’s brief, are no foundation for the present suit. They rather militate against it.

These views dispense the court from considering other issues raised in the case, such as to the nature of the injury and the question of damages.

It is, therefore, ordered and decreed that the verdict of the jury be quashed and set aside; that the judgment thereon be avoided, reversed and annulled; and it is now ordered and adjudged that plaintiff’s demand be rejected, with judgment for defendant, with costs in both courts.


author: Fenner, J. Breaux, J.

text:
    No. 10,760.
    Charles DeGruy vs. Jos. A. Aiken & Co.
    Under a motion to dismiss filed in this court, the solvency of the surety on an appeal bond can not be considered. That is a question primarily for the court a qua, and will be considered here only on appeal taken from the judgment thereon, and when said appeal is regularly tried and submitted.
    In afi appeal from a judgment rendered in solido against several defendants, it is sufficient if they all join as principals in the appeal bond and bind themselves to satisfy whatever judgment shall be rendered against them, otherwise that the surety shall be liable in their place. The nature of their obligations under-the bond will depend on the final judgment rendered. If that shall condemn them in solido, they and their surety will be so bound, and it was unnecessary that the bond should expressly stipulate a solidary liability.
    The joinder of the husbands of defendant married women merely operates the required marital authorization, and is otherwise harmlessly superfluous.
    The authority of the General Assembly to grant to corporations the right to make and maintain ■wharves has long been settled, as well as the authority of the corporations and lessees from them to build wharves with inclines or aprons.
    An incline or apron of a wharf is not a safe place to walk upon on a dark night, after a rain, and those who venture on them, without the least necessity, at such times, and when made slippery by the rainfall, assume risks precluding them from recovering damages.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      A. L. Tissot and Branch K. Miller for Plaintiff and Appellee:
    In a suit for damages for personal injuries, a defendant who pleads contributory negligence admits his own negligence. 12 An. I; Am. and Ting. TCncycl. of Daw, p. 18; 31 An. 1088; 32 An. 617; 38 An. 116.
    A contractor sued for damages caused by a defect in public work, which he agreed to keep in repair, can not urge want of notice of the defect, where he denies that the defect existed. 37 An. 192*195.
    A contractor-who. under a law requiring the leasing of a public work, becomes-lessee thereof with an engagement to keep the work in good repair and condition, is held to a higher measure of care than a municipal corporation, and for damages caused by a breach of his obligation, may be held without notice of non-repair. 109 Mass. 522; IS Pick. (Mass.) 357; 63 Pa. St. 296; 22 Pa. St. 381; 78 Pa. St. 191; 7 Mass. 169.

      Baynej Denégre <& Bayne for Defendants and Appellants:
    It is sufficient to say that the rule to dismiss embraces no such ground, the only-grounds being that the form of the appeal bond is not proper, and that the surety is not good and solvent. The first was disposed of by the judgment of this court, the second by judgment a quo, and is the only matter now before the court. If any other ground had been before the court below we would have' met it there by evidence, but plaintiff can not now present a new ground for dismissal on a point not raised in his motion, nor presented to the court below.
    The right of appeal is a constitutional right, and will be favored, and no appeal dismissed unless the law imperatively commands it. Brewing Co. vs. Boob - inger, -10 An. 277; Murrell vs. Murrell, 33 An. 1283; DoBlanc vs. Rougeau, 39 An. 230; 33 An. 271; 30 An. 1127; Coyle vs. Croevy, 31 An. 539.
    If there be no evidence in the record, the judgment reciting that it was founded upon the law and evidence adduced, the Supreme Court Avill assume that the judge a quo had ‘before him sufficient evidence to justify his judgment, Succession of Jno. T. Moore, 12 An. 335; Huntington vs. Bordeaux, 12 An. 318.
    The parties were not required to have their evidence reduced to writing, or see that a note is made of the evidence adduced. It was competent for them to have secured a statement of facts. Succession of Moore, 12 An. 335.
    The lessees of the public wharves of the city of New Orleans are not insurers of the safety of all who go on said wharves; they are only liable for failure to exercise reasonable and proper care in the repair and maintenance of the wharves.
    It being established by the evidence that defendants exercised the highest degree of care and diligence, and did not know of any missing plank, they can not be held liable for injury sustained by plaintiff. '
    Especially where the burden of proof being upon the plaintiff he fails to prove that the defect was known to defendants, or had existed a sufficient time before the accident to presume knowledge on his part.
    Such is the well established rule with regard to the municipal corporations, and defendants assuming the obligations of the city are not bound to a higher degree of care.
    As to municipal corporations see: Dillon on Municipal Corporations, 3d Edition , ►Secs. 1019, 1020, 1015, 1021, 1025; Weightman vs. Washington, 1 Black, 52; Good-enough vs. Oshkosh, 21 Wis. 550; Doulon vs. City of Clinton, 33 Iowa 398; Chicago vs. McCarthy, 75 111. 601; Todd vs. Troy, 61 N. 509; Dewey vs. Detroit, 18 Mich. 307.
    The apron or inclined portion of the wharves not being a walking place, or in- • tended as such, and being dangerous, especially in wet weather, the plaintiff was guilty of contributory negligence in going upon that portion of the wharves, and can not recover. Weeks vs. R. R. Co., 11 An. 802; Murray vs. Point R. R., 3L An. 191; Schwartz vs. C. C. R. R. Co., 30 An. 13, 31 An. Ill, 33 An. 156, 82 An. 616; Deikman vs. R. R. Co., 10 An. 787.
   On Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

Nothing is submitted for our present determination except the motion to dismiss filed in this court.

The grounds of the motion are the following:

That the appeal bond filed by the defendants and appellants from said final judgment is defective in form and substance, in this:

1. That while the said judgment casts the defendants in solido, the bond of appeal was given by them jointly, and the surety guarantees their payment of the judgment jointly for an aliquot part of said judgment, and that said surety does not guarantee payment of the judgment by said defendants in solido.

2. That there were parties included as principals in said appeal bond who are not cast by the judgment.

Another ground is assigned in the motion, vi?.: That the surety is not good and solvent, and such as the law requires. ’This, of course, can not be determined by us under a motion to dismiss. It was submitted to the lower court and decided adversely to the appellee, from which decision he has taken a separate appeal. We can not consider the questions involved therein until said appeal shall be tried and submitted. The other grounds above stated have no merit.

The court conforms, in all respects, to the requirements of law.

The judgment appealed from was rendered against the defendant firm and all the members in solido. They all join as principals in the bond, and the condition is that they shall prosecute their appeal and satisfy whatever judgment shall be rendered against them, otherwise that the surety shall be liable in their place. The nature of their obligations under the bond will be determined by the final judgment rendered on the appeal. If that condemns them in solido, they and their surety will be bound accordingly. It was not necessary that the bond should expressly stipulate a solidary liability.

The complaint that the husbands of some of the married defendants are joined as principals has no foundation. Their joinder was manifestly for the purpose of authorizing their wives, and is, otherwise, harmlessly superfluous.

Motion denied.

On the Merits,

Breaux, J.

The plaintiff sues for $20,000 damages, for injuries caused by falling through an open space in one of the public wharves of the city of New Orleans. In July, 1889, plaintiff, in the1 night feme, went down to the river, at the foot of Canal street, to meet his daughter who was expected bn the steamboat Jesse K. Bell, at about half past 10 that night.

‘ While waiting, he had taken a seat, with his two companions, on .a marble slab placed on the wharf to be shipped. • .

In about three-quarters of an hour, it being warm, he left this seat, followed a straight line to the river, nearer its margin, where he took a seat, awaiting the breeze, he states. On his return to his companions, about midway the incline or apron of the wharf, there being a plank missing, he tumbled over, one of his legs fell in the hole caused by the missing plank; the other held his body on the wharf.

One of the witnesses testifies that the hole was near the water’s edge; the other two locate it more than midway up the incline or apron. The plaintiff was severely bruised by the fall; three of his ribs were fractured, and he at the time greatly suffered. He was confined nineteen days to his room, under medical treatment. His occupation is that of a cierk; he receives a salary of $1000 per annum.

There was no interruption in the salary during the illness, and since his recovery he has retained his position as clerk.

It is not shown that his usefulness in that capacity has been impaired.

The physician appointed by the court, as expert, by whom he was examined, does not testify that plaintiff’s fracture and bruises were permanent.

The defendants are lessees of the wharves of the city of New Orleans, bound as lessees to repair all holes in their flooring, also to mend bulkheads and incline heads immediately after the need of repairs.

Their answer denies the allegations of the petitioner and alleges that if plaintiff sustained any injuries, they were the result of his own negligence.

The case was twice tried before a jury. The first trial began on the 81st of January, 1890, and occupied several days; verdict was rendered in favor of the plaintiff for $8500.

A motion for a new trial was made and a new trial was granted. The second trial took place on the 24th of November, 1890.

The testimony in- each trial was substantially the same.

The second jury rendered a verdict for $8000.

The affirmative testimony of the plaintiff and the two witnesses, who were with him when the accident happened, was met on the part of the defense by a number of witnesses who testify that the wharves were kept in good condition by the defendants.

Several of their employés testify that they never heard of the aecident or the missing plank, until some time after the accident (more than four months after) ; also three police officers testify substantially to the same effect.

The defendants show that they have a large number of men employed in repairing the wharves and their incline, and that they were in good condition.

They call attention to the fact that it was some four months afterward they became aware of the accident.

Wm. Brieg, Jr., their foreman, in keeping the wharf in order, did not hear of the missing plank until about the week before he testified.

Officer Quilbon, patrolman on the river front at the place, testifies that the incline is not a place to walk on, and only knew of the accident a few weeks before he testified.

Officer Seelhorst, also on the levee, says his beat extended from Canal to Oonti, and that there was no missing plank.

N. O’Neil, another officer, whose duty it was to report if there were missing planks, testifies there was none.

R. H. Keene, wharf-master, Second district, having that wharf in charge, never knew of the accident, or of the missing plank, until a long while after.

A. F. Fortier, signal officer, same district, never knew of the missing plank, or the accident, until he was subpoenaed.

All of defendants’ witnesses, with reference to the plank, testify to the same effect, and they further state that they do not know that any repair was ever made, or plank placed over the alleged spaces, of which they have not heard or seen anything at all.

The plaintiff predicates his case on the facts attending his fall; his bruises and the injury received, res ipsa loquitur, and contends that the presumption of negligence is complete.

That a plank was missing, and that there was a hole in the wharf, as testified by eye witnesses; that this testimony is not denied in a direct manner, or by any witness.

Two grounds of defense are earnestly urged, and will receive our careful consideration.

1. The want of notice of the hole in the incline..

2. The unfitness of the incline, or wharf, to walk upon; the fact that it was not built for that purpose; the danger to pedestrians, especially after a rain, and the fact that the traveled part of the wharf was not obstructed.

1. Recent text writers, on the subject of negligence, held that corporations are not liable, in analogous cases to the one at bar, unless it be shown to have had notice, either express or implied, of the defects.

The suit is rot against the municipality, but against its lessees, and,, therefore, we will not concern ourselves about notice, in so far as it may be concerned.

The defendant lessees have contracted to keep the wharf and the incline in good repair.

It is not always essential, to recover, to prove actual notice, or to bring notice to the lessees of municipalities in every case. There are exceptions sustained by our jurisprudence. There are defects that must be seen to at once, and in regard to which the want of notice does not play any figure and is not considered.

2. The next grounds present the difficulty of the case:

The uses of the banks of navigable rivers is public, and every one has the right freely to bring his vessel to unload it, to deposit his goods. C. C. 455.

The authority of the General Assembly to grant to corporations the right to make and maintain wharves, has long been settled, and the construction of the incline, as at present, and its uses, are sanctioned by custom and by law.

The legislation and the ordinances are directed to the importance of offering facilities to navigation.

Mooring ports are provided, fenders, wharves for the public, inclines or approaches. The latter are used by steamboats to launch and land their stages.

The wharf, proper, was safe enough, but it was highly imprudent to leave it and walk on the incline in the night time.

This incline measures thirty-five feet in width and has a fall of nine feet.

It is not a moderate incline. After a rain it is dangerous to walk on it. It had rained on the day of the accident. This apron is built, and has this fall, with unquestioned approval.

Granted that there was a missing plank, as alleged, the plaintiff increased the risk of an accident by venturing on it in the night time.

If in the discharge of a duty, in the performance of any work or service, an accident were to happen, because of a missing plank on this incline, those having it in charge would be exposed to the payment of damages, but the one hazarding himself to gratify a pleasure assumes certain riáks: to recover, it must be shown that the defendants were guilty of negligence; that a dangerous open space was left for some time, prior to the accident, without repair.

No such proof is made in this case.

A case similar in some respects was decided by us not long since; plaintiff’s demand was rejected. Stella Burbank vs. Illinois Central R. R., 42 An. 1156.

Neither of the parties knew of the hole prior bo the accident which befell the plaintiff; in this case “ it is an inevitable accident and the defendant is not responsible.” Beach Cont. Neg., p. 35.

If the plaintiff fell between the stringers, at the end of the apron, near the water’s edge, about the place his son swears he fell, this would to some extent reconcile the difference in the statement of witnesses. The fall between the stringers, as mentioned, would not give a right of action.

Contributory negligence generally presents issiies of facts and of law.

The law applying to this case has been construed by the district judge, as invalidating the verdict in the first trial.

He annulled the jury’s finding.

In the second trial, he adhered to the opinion previously expressed, bub allowed the verdict to stand.

We would remand the case for a new trial, were it not that our construction of the law would make a third trial useless.

Neither party has prayed to have the case remanded for a new trial.

. It is therefore ordered, adjudged and decreed that the verdict be set aside; judgment appealed from be reversed, avoided and annulled, and plaintiff’s demand rejected; and that appellee pay cost of both courts.


author: Fenner, J.

text:
    No 10,783.
    Charles Olivier vs. Louisville and Nashville Railroad Company.
    1. A party voluntarily boarding1 a crowded train, and taking his place on the platform of a car, without complaint, or effort to obtain a seat, or other better accommodation, can not assign the overcrowding of the train as negligence in the railroad company.
    2. On the other hand, when the conductor sees him in that position, and collects his fare without objection, thecompany can not attribute its occupancy asnegligence.
    8. In such case the passenger is bound to conduct himself with the care and caution which his position requires, and the company is bound to guard him from danger incident to the position arising from its own acts.-
    4. A party’s admissions as to the cause of an injury, for which he claims damages, are good evidence against him, and the statements of a companion made in his presence, without contradiction, may have the like force with his own admissions. In this case the latter were also admissible as part of the res gestee, and to impeach his testimony given on the trial, for which foundation was duly laid.
    5. Testimony in the case stated and discussed.
    6. While always disposed to give to verdicts of juries all proper weight, the law of this State imposes on the court the duty of reviewing their findings on the facts, as well as on the law, and when, upon the evidence before us, it appears that a verdict is manifestly erroneous, we are bound to reverse it.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorhieSy J.

      Branch K. Miller for Plaintiff and Appellee:
    A suit can not be dismissed for failure to comply with an order for a bond for costs, under Act 136 of 1880, except upon a motion to that effect, setting forth the failure to file the bond, asking the dismissal. No additional bond for costs can be required, pending the trial. A suit can not be dismissed for failure to fileabond, after judgment; nor in any event after the bond is filed.
    Previous statements, contradictory of the sworn statements of a witness, are received, not as independent proof, but only to impeach the witness. Thompson on Trials, Secs. 480, 490; 1 Wharton on Evidence, Sec. 551.
    It is negligence for a railroad company to allow their ears to become so crowded as to compel passengers to ride on the platforms, When the whistle of an engine is blown for a stop, the speed of the train slackened, and diminished gradually, a passenger lias the right to prepare for leaving the train; in doing this, he may stand np, and if in this position, he is, by a sudde«- start or jerk of the train, thrown from the platform, where the crowded condition of the cars has compelled him to ride, the railroad company is responsible for his damages. 49 Mich. 372; 4 Hum (X. Y.) 409; 34 K. Y. 670, 676, 677; 36 R. Y. 136; 66 N. Y. 50, 52.

      Bayne, Denegre & Bayne, for Defendant and Appellant:
    .Plaintiff, a negro man about forty-three years of age, says that he has been in the habit of going on tlie ears to the Lake, fishing, for about thirty years; that he boarded the train at an intermediate station (Claiborne street); seeing that the cars were crowded, seated himself on the platform, where he was first seen by the conductor at^Gentilly, and then, through his friend Larose, paid his fare, fifteen cents. Near Milneburg, be stood up on the platform, with his basket on one arm. He either fell or jumped from the cars, and his foot was run over by the last wheel of the cars on which he was riding. He admitted at the time of the accident, that it was caused by'his own fault and negligence. The evidence sustains these admissions as true, and being guilty of negligence contributing to the accident, he can not recover. 42 An. 990; 41An.297; 34 An. 1086; 33 An. 156; 32 An. 616; 30 An. 15; 9 An. 441; 4 An. 787; 31 An. 491; Snowden vs. Boston & M. R. R. Co., 151 Mass. Rep., p. 221.
    The claim was only made seven months after the accident, on after thought, and is stale and speculative, and should bo discouraged. 41 An. 864.
    The accident occurred on the Pontchartrain Railroad, an independent corporation, for which the Louisville and Nashville Railroad Company is not liable. The latter railroad company is a largo stockholder of the Pontchartrain Railroad Company, and is interested as such, and not otherwise.' Pullman CarOo.vs. Missouri Pacific Co., 115 U. S. 5596; Morawitz on Private Corporations, Vol. 2, p. 969, Sec. 1009; City of Now Orleans vs. Pontchartrain Railroad Company, 41 An. 519. '
    No damages are recoverable in this case, but, if any, the amount is grossly excessive. There areno special damages alleged or proved. 11 An. 292. Peyton vs. Texas Pacific Co., 41 An. 864, 794; Thompson on Negligence, Sec. 1208, et seq.; Sedgwick on Measure of Damages, Vol. 2, p. 538.
    Section 4 of Act 136 of 1880,'and the orders of the court made thereunder, operated a dismissal of this suit, and there was error in reinstating the case and compelling defendants to defend after the failure of plaintiff to complv with the orders of the court and the law, which operated as a dismissal of the suit. The necessity for the enforcement of the law is shown in this case, where the defendant has paid costs largely in excess of the bond given, more than double the amount for which security has boon given.
   The opinion of the court was delivered by

Fenner, J.

The cause of action is substantially as .follows: That plaintiff became a passenger on defendant’s railroad, having duly paid his fare for passage to Milneburg; that owing to the crowded condition of the train he was compelled to ride on the platform of one of the cars; that on approaching Milneburg, the engineer-sounded the whistle to announce the stop to be made; that the speed of the train was diminished by degrees, inducing petitioner to. believe it was about to stop, when the said train was suddenly put in sudden motion by the engineer thereof, causing a sudden and violent jerk or start, which threw petitioner from the platform under the wheels of the car, which passed over his foot and occasioned in-, juries which necessitated the amputation of his leg below the knee; that said injuries were due solely to the fault and negligence of defendant in this particularly:

<e 1. That he should have been provided with a seat in said train,_ and not have been compelled, by the overcrowding of said ear, to ride on the platform.

“2. That said train should not have been suddenly started after the diminution of its speed and the preparation and apparent intention of the engineer to stop the same.”

Plaintiff avers his freedom from any contributory negligence, and demands $20,000 as damages.

Defendant answered by a general denial.

The case was tried before a jury, resulting in a verdict and judgment in favor of plaintiff for $5000, from which the present appeal is taken.

The first ground of negligence assigned against the company has no weight. According to his own statement, plaintiff boarded the train at a way station, after seeing and knowing that the train was crowded; and lie also knew from his constant habit of traveling on the road that the trains on this day of the week and hour were customarily crowded. He voluntarily took his place on the platform; but he was lawfully there, because he occupied that position when the conductor collected his fare, and the latter made no objection thereto. He was bound to conduct himself with the care and caution which his position suggested and required; and the company was bound to protect him from damages incident to that position arising from its own acts.

The serious issue of law and fact arises under the second assign - ment of negligence, viz., in starting the train, when on the point of stopping, with such a jerk as to throw the plaintiff off.

Plaintiff produces no evidence as ■ to the accident except that of himself and his companion, Larose. Plaintiff says that he and Larose were going out to the lake do fish; that they boarded the train at a way station; they saw the train was full, but got on the platform; plaintiff carried a basket; he took his seat on the platform of one car, with his feet resting on the step, while Larose sat on the platform of the car in front of him; when the car reached Milneburg and the whistle had blown, he got up and stood with his basket on one arm and holding the railing with the other hand to be ready to get down when the train stopped; that, while thus standing, and after the motion of the train had become very slow, the train was suddenly started and gave a violent jerk, which threw him off.

Larose gives a like account with some further particulars. He says:

“ When she got just about a block before the old station, she blew, and Charlie says, ‘ Get ready.’ I says, ‘No, she is going too fast.’ When we reached about the engine house, he says, ‘ Get ready.’ I says, ‘No, we can’t, she is going too quick.’ When we got about the corner she started to slack up, but not enough for us to get down, and when Charlie got right by the hotel, he stood up that way, and he told me to get ready, and I says ‘ Leave the ear stop, I believe she is going to the wharf.’ ”

He adds that at this point the train gave a violent jerk and Olivier was thrown off.'

The engineer denies most positively that he gave the train any forward motion after slowing down, or did anything to cause a jerk.

No witness is produced to show that there was any such jerk except Olivier and Larose.

Welsh, who was one of the conductors at that time, but who is no longer in the employ of defendant, says that he went to where plaintiff was lying, after the accident, and asked Larose, who was with him, how it happened, and Larose said, “It was all his own fault,” and that “ he was in the act of jumping or jumped off and fell.”

Ross, the other conductor, who also is no longer in defendant’s employ, says:

“ I went to Mr. Olivier; he was sitting on the ground, and he says, I went to jump off and fell down and my leg went underneath,’ and he says, ‘ I do that every Sunday,’ and I says, ‘ You ought not to do that; you ought to wait till the train stops.’ ”

Philibert, the clerk and operator at the police station to which plaintiff was carried, says:

“He had been brought in from Milneburg and put in the station, and the ambulance sent for, and while waiting for the ambulance, so as to make a report to the chief officer, as We do in all cases, I asked the man for a statement as to how he got hurt, how his foot got mashed, asked him how it happened, and he said it was his own fault; that he jumped off the car and the train ran over his foot.” .

Habans, a police officer stationed at Milneburg, says:

“ I was on the rear coach of the train when the coach stopped — I mean the train — and I looked out and saw a lot of people congregated around the hotel gate, and I ran down there to see what was the matter, and I saw a man sitting on the ground with his face toward the train, and his friend Larose with him. I says to him, Charlie, how did that happen?’ and he says, ‘ I tried to jump off and I got my foot smashed.’ So I went on and notified the engineer that the man was hurt, and he backed the baggage car down to put him in there.”

He also adds:

‘! His friend told, me that Mr. Olivier had his basket on his arm and the train going in that direction, and when he attempted to jump off with his basket on his forward arm so, the basket struck the hand rail of the platform of the car and it threw him down.”

Olivier and Larose, on re-examination, stoutly deny having made the statements attributed to them. Olivier seems to deny that he was asked any questions or made any answers to anyone. Larose says, “ Olivier said it was only bad luck, and I said so myself.”

It is a significant fact that neither Olivier nor Larose pretend to have said anything at that time about the jerk of the train, rendered more significant by the fact that this suit was not brought until nearly seven months after the accident; and, so far as the record discloses, that was the first time defendant heard anything about a jerk of the train.

It is further shown that plaintiff had been a constant traveler on this train for years, and that he had frequently jumped off the train before it stopped.

Larose’s statement strongly intimates that plaintiff was making preparations to jump, and was only restrained by. his remonstrance. W e can not doubt that the conductors and the police officers did ques-ion Olivier and Larose as to the cause of the accident. It was their official duty to make such inquiries, because they had to render reports to their superior officers. If Olivier and Larose then attributed the accident to the jerk of the train, it would have been natural for them to have said so, and it is passing strange they did not; yet neither of them pretend that they said anything about it. According to their own account, they simply said it was only bad luck.” No motive is suggested why the two police employés should have sworn falsely, and they fully confirm the statements of the conductors. They are supported by all the independent circumstances, negative as well as positive.

We have studied carefully the whole evidence, and have endeavored to state it fairly. Can it be expected that we should affirm a judgment against defendant for ijj>5000 on such proof, in view of the imperative requirement that plaintiff is hound to make his case reasonably certain?

Nothing is more irksome to us than the necessity we so frequently encounter to reverse the verdicts of juries in cases of this character. We are disposed to give their findings all the weight to which they are entitled; but the law of this State imposes on us the duty of reviewing their verdicts both on the facts and the law, and when the evidence submitted to us manifestly fails to support the verdict, we are bound to reverse it. We believe Olivier and Larose did make the statements attributed to them, and that those .statements, made under the circumstances, must be taken as true.

The statements of Olivier are good evidence against him as his own admissions; and the statements of Larose, made in his presence and without contradiction by him, partake of the same character. Moreover, they are all part of the res gestee.

It matters not whether they are considered as independent proof, or merely as destroying the credibility of the witnesses who swore in contradiction of their own prior statements; ip. either case they destroy plaintiff’s action, because it has no other support than the testimony of these witnesses.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside; and that there be now judgment in favor of defendant, rejecting the plaintiff’s demand, at the latter’s cost in both courts.


author: Watkins, J.

text:
    No. 10,697.
    Leeds & Co, Limited, vs. J. N. Hardy, Treasurer.
    1. Tlie privileges and. mortgages securing the payment of city taxes arc prescriptible, but the taxes are themselves imprescriptible.
    2. Notwithstanding tax liens, privileges and mortgages are prescribed, tile property assessed remains subject to seizure in the enforced collection of taxes thereon.
    3. It is a condition precedent to the exercise of the taxpayer’s right of action in a court of justice, that previous and timely effort should have been made, on his part, to have the board of assessors make an alleged correction, while the matter was yet in their hands, and under their control.

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

      B. R. Forman for Plaintiff and Appellant:
    1. Property employed in the manufacture of machinery and agricultural implements, where not less than five hands are employed, is exempt from all taxation for a period of ten years from the adoption of the Constitution (December, 1889), 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 pie-vents the collection. Act 96, 1877,p. 142, Secs. 36 and 102; Act 77,1880, p. 95, Sec.24; Act 96, 1882, p. 130, Sec. 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 the 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. ■ Sommerville, Assistant Oity Attorney, and Garleton Bunt, City Attorney, for Defendant and Appellee:
    1. City taxes are imprescriptible. Rivers vs. City and So. R., 485 Sue.; Mereier, 42 An. 1149; City vs. Wood, 34 An. 733; Sec. 36, Act 96 of 1877; Succession of Stewart, 41 An. 128; 6 So. R. 587.
    2. Property upon which taxes are due may be seized and sold to enforce the payment of taxes, although the lion and privilege are prescribed. Constitution, Art. 211; Sec. 46, Act 85, of 1888; Alexandria vs. Heyman, 35 An. 301; Alexandria vs. Williams, lb. 329; State vs. Meyer, 41 An. 437; Holden vs. Eaton, 7 Pick, (Mass.) 15.
    3. Errors in assessments must bo corrected within the time and in the manner pointed out by law. Courts can not otherwise grant relief. Shattuek & Hoffman vs. New Orleans, 39 An. 206; 1 So. R. 413; Gay vs. Board of Assessors, 34 An. 370; New Orleans vs. St Louis & C. R. R. Co., 37 An. 45; New Orleans vs. Canal* Banking Co., 32 An. 160; Gaither vs. Green, 40 An. 364; 4 So. R. 210; State vs. Meyer 41 An. 437 ; 6 So. R. 679; Red River & Coast Line vs. Parker, 41 An. 1046; 6 So. R. 896; Oteri vs. Parker, 42 An. 378; 7 So. R. 570; Factors & Traders Ins. Co. vs. Levi, 42 An. 435; 7 So: R. 625.
    4. Where a party takes formal notice of assessments and taxes, and assumes the payment of them, he can not afterwards set up objections to their regularity and validity.
    5. City tax of 1880, imposed by ordinance in December, 1879, on assessment rolls furnished by the State Board of Assessors in November, 1879, were notropoaled by the adoption of Art. 207 of the Constitution subsequent thereto. New Orleans vs. Vergnole, 33 An. 36; Succession of Dupuy, lb. 258; New Orleans vs. L’Hote, 35 An. 1177; State ex rel. Stern vs. City, 40 An. 697; 4 So. R. 891; La. Ice Mfg. Co. vs Tax Collector, 42 An. —; 7 So. R. 898.

      G. Where plaintiffs and appellants allege a tax, amounting to less than $2000, to be invalid and unconstitutional, they must plead and introduce the ordinance under which the tax complained of islevied,so as to show affirmatively thatthis court lias jurisdiction, or the appeal will bo dismissed. New Orleansvs. Labatt, S3 An. 107.
    7. State Beard of Assessors required to make assessment rolls for city by November 1, of the year prior to that wherein taxes are collectible. Sec. 2, Act No. 12 of 1S7D, p. 32.
    8. City assessment rolls and taxes shall be known by tlíe year in which the taxes are collectible. Sec. 2, Act No. 73 of 1872, p. 121.
   The opinion of the court was delivered by

Watkins, J.

This is an injunction suit, in restraint of an advertised sale of certain real estate of plaintiffs, for the satisfaction of city taxes of the years 1880, 1884, 1886 and 1887.

The injunction rests on the following grounds, viz.:

■ 1. That the taxes, tax liens and tax privileges and mortgages of said years, respectively, are barred and prescribed by three, five and ten years; and that the plaintiff acquired the property in question free of any such liens, privileges'and mortgages — if not prescribed— because of same not having been so recorded as to affect same therewith.

2. That said property was not lawfully assessed for and during any one of those years, the assessments, as made, not having been made in the names of the true owners thereof.

3. That the property, sale of which is enjoined, embraces that on which is situated the plaintiff’s foundry establishment, and the whole of which is at this time, and has been, continuously since 1880, engaged in the manufacture of machinery and agricultural implements, and is, therefore, exempt from taxation under Article 207 of the Constitution.

The city defends on the grounds (1) that city taxes are imprescriptible ; (2) that, though the tax liens, privileges and mortgages securing the taxes of all of those years, except the year 1887, are prescribed, yet the city is entitled to seize and sell the property that was assessed; (3) that, after the lapse of the time designated by law, it is too late for a taxpayer to be heard to urge complaint of incorrect or erroneous assessments, unless he has complied with the condition precedent; (4) that, in the plaintiff’s contract of purchase, it assumed the payment of said taxes, if 'the property was held not exempt under Constitution, Article 207; (5) that the tax denominated the. tax of 1880 was levied in the month of December, 1879, under an assessment made in 1879, and for that reason it was not affected by the constitutional exemption relied upon.

In Succession of Stewart, 41 An. 128, all of the statutes cited, and the constitutional provisions relied upon, were thoroughly examined and analyzed, and we»decided that city taxes were imprescriptible, though the liens, privileges and mortgages securing same are prescriptible. Succession of Mercier, 42 An. 1135; City vs. Wood, 34 An. 732; Rivers vs. City, 42 An. 1196.

But notwithstanding the tax privileges and mortgages have become prescribed, the city has the right to proceed against the prop - erty assessed for the purpose of realizing the taxes themselves. Oteri vs. Parker, Tax Collector, 42 An. 374; Succession of Mercier, 42 An. 1135; State vs. Meyer, 41 An. 436.

It is not claimed that the plaintiff ever took proceedings in'eonformity to special statutes on the subject to have the assessments of the several years designated altered so as to conform to the facts alleged, and it is now too late for the plaintiff to have it done. It is a condition precedent to the exercise of this right of action in a court of justice, that a previous and timely effort should be made on the part of the taxpayer to have the board of assessors make the correction while the matter was yet in its hands. Shattack & Hoffman vs. New Orleans, 39 An. 206; Oteri vs. Parker, Tax Collector, 42 An. 374; Factors and Traders Insurance Co. vs. Levi, 42 An. 432; Gaither vs. Green, 40 An. 364; Red River and Coast Line vs. Parker, 41 An. 1046.

The only remaining question relates to the constitutional exemption, and as there is a suggestion, made for the first time, that a compromise had been affected pendente lite, between the plaintiff and the city respecting all the taxes, except those of 1880, and without the knowledge of counsel on either side, we are of opinion that the cause should be remanded, particularly in view of the fact that counsel on both sides express a willingness that it should be remanded.

Reserving all the rights of both parties, it is ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the cause be remanded to the court a quo, to be therein proceeded with according to law and the views herein expressed; the plaintiff and appellant to pay the costs of appeal, and those of the lower court to await final judgment thereon.


text:
    No. 10,747.
    New Orleans National Bank vs. Eagle Cotton Warehouse and Compress Company. Eugene Soniat, Syndic of J. B. Lallande, Third Opponent.
    It is of the essence of legal subrogation that the person making the payment should be a third person, in respect to the obligee of the debt he is seeking to prime thereby; and, that he should himself be a creditor of inferiorrank of tlie common debtor whose debt he pays.
    APPEAL from the Oivil District Court for the Parish of Orleans, King, J.

      E. Howard McCaleb for Plaintiff and Appellee:

      1. Plaintiff, pledgee of mortgage notes, has a right to sue thereon in his own name. 36 An. 257; 33 An. 624 ; 30 An. 714; 28 An. 419; 89 An. 322; 21 An. 3. Pledgor’s insolvency does not effect pledgee’s right. 38 An. 864; 1 An. 31; 94 U. S. 734.
    2. Pledgor can never come in competition with pledgee, nor in any way diminish or impair the value of the securities pledged. Troplong, des Priv. et Hyp. v. 1, No. 367; Grenier, v. 1, 93; 2 Rob. 241; 29 An. 548. Assignee of bankrupt has a right to claim property pledged only after paying the debt. 95 U. S. 764.
    3. Subrogation to a creditor’s rights only takes place in favor of a third person who pays him. R. O. O. 2159. The drawer of a note is not a third person, but a party to the contract. It. C. O. 3556.

      Í. Contract of insurance is strictly personal and not an incident to the subject insured. 11 An. 95. Party effecting insurance on buildings, to cover his own interest therein, has no claim on others for reimbursement of premiums paid by him.
    5. No subrogation takes place in favor of creditor paying State and city taxes for 1889, except on compliance with Sec. 88 of Act 85 of 1888, which supersedes prior jurisprudence on the subject. 36 An. 685.

      W. S. Benedict, for Third Opponent, Appellant.
   Watkins, J.

Tlie controversy presented by the syndic’s appeal is Ms right of priority over plaintiff, as seizing creditor, and the New Orleans Canal and Banking Company, in the distribution of the proceeds of the sale of certain hypothecated property of the defendant, said proceeds being insufficient to pay the demands of all.

The following is a summary of the facts, as they appear of record, viz.:

On the 28th of July, 1886, the widow and heirs of Viscount Morand sold to J. B. Lallande several lots of ground situated in the First district of the city of New Orleans, for the price of §11,000, of which §8666.663/3 was paid in cash, and for the balance said purchaser executed three notes of $2444.44f each, to his own order, and endorsed and payable at one, two, and three years after date, and secured by vendor’s lien and mortgage.

On the 21st of May, 1889, Lallande sold said property to the defendant for the price of §40,000, of which $2000 was paid in cash; and for the residue said purchaser executed its five several promissory notes, payable to its own order, a¡nd endorsed for $6133.80 each, one at one year, two at two years, and two at three years after their date, and secured by vendor’s lien and mortgage, and assumed the payment and discharge of Lallande’s three notes, above described, and released him therefrom.

The three notes of Lallande passed into the possession of Henry A. Horine, and he placed them with the American National Bank; and of the five notes of defendant, two were by Lallande pledged to the plaintiff, and three likewise pledged to the Oanal Bank.

On the maturity of the one first falling due, plaintiff purchased the mortgage in executory proceedings against the defendant, and the property was adjudicated at the price of §36,000 in cash, for the account of the plaintiff in execution and the Canal Bank.

On the day of sale, Horine filed a third opposition, claiming the right to have his three notes paid out of the proceeds by preference; ■ and Soniat, syndic, filed a like opposition, alleging his right to be paid by preference, also, the amount he claims to have been paid by Lallande in discharge of the interest on the notes held by Horine; and other amounts he claims to have himself paid in insurance premiums on policies issued on the property mortgaged, and the taxes assessed against it while under the mortgage.

The demand of Horine was sustained and acquiesced in by the plaintiff; but that of the syndic was rejected, and he has appealed.

The question for decision is, whether the District Court erred in refusing to hold that the insolvent estate of Lallande became legally subrogated to the superior rights and privileges of the persons to whom he and his syndic had made payments; and, therefore, in refusing to decree the syndic entitled to be paid by preference over the plaintiff.

From the facts appearing in the precedent statement, Laliande was, at the time he made the payment of interest on the three notes that were held by Horine, still bound as the original obligor thereof, for the capital and interest, notwithstanding the defendant had assumed their payment and had contracted and covenanted to discharge him from his obligation, as a part of the price of the property-mortgaged. There is no proof that Horine had ever consented to Lallande’s discharge ; and the counsel for the syndic concedes that he was not released.

This being the case, it seems to be a very clear proposition of law, that, inasmuch as Laliande volunteered to make a payment of interest on notes of which he was the maker, and on which he was still bound as obligor, he only, pro tanto, discharged his own debt, notwithstanding the defendant was also bound for same. In such case legal subrogation does not take place.

The precepts of the code governing legal subrogation are the following, viz.:

“ Subrogation to the right of a creditor in favor of a third person who pays him, is either conventional or legal.” R. O. O. 2159.
“Subrogation — i. e., legal 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.” Id. 2161.

It is of the essence of the legal subrogation which is defined in the foregoing paragraph, that the person making payment should be a third person, in respect to the obligee of the debt he is seeking to-prime, by making the payment; and, also, that such payor should himself be a creditor of inferior rank, of the common debtor whose debt he pays.

But Laliande was not only not a third person, in respect to the obligee of the debt he sought to prime, but he was himself the original obligor, and more recently, the plaintiff’s pledgor. Laliande was not himself a creditor of the defendant, at the time he made the payment of interest, quood the plaintiff to which he had surrendered, as pledgee, the notes which evidenced his ownership thereof.

Lallande, in making payment of interest due on the notes Horine held, not only discharged, pro tanto, a ranking mortgage over that held by plaintiff as his pledgee, but he at the same time discharged his own obligation to a like extent.

We are of opinion that in this respect the district judge ruled correctly.

Much the same question is raised in respect to the insurances and taxes which the syndic paid. The taxes he paid were those assessed against the property, which was covered by both mortgages; and in making the payment he relieved it of a burden that ranked them both, and which would have sent it to sale — to prevent which all of these payments were made; and one of them would have been inefficacious without the other. As a mortgage creditor of the defendant, he had an interest to subserve in paying the taxes; and, as a vendee, owing a debt to Horine secured by mortgage, he was in equity and good conscience bound to keep down the taxes and prevent the property being sent to sale.

The same is true of the insurance premiums paid. Though be was not contractually bound to do so, yet the syndic doubtless obtained policies for the protection of the interest of Lallande’s creditors, yet to whom the same would have inured in case of loss by fire. The plaintiff can not be held for the restitution of the sums paid.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,727.
    Josephine M. King vs. John G. Grant.
    If the work to be clone on a building is a reconstruction of a part of it, rendered necessary by an original defect, the lessor’s implied warranty is violated and the lessee has the right to demand the dissolution of tho'lease.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Ellis, J.

      Geo. L. Bright for Plaintiff and Appellant.

      W. S. Parkerson for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This is a suit for rent of leased premises. The defendant notified the plaintiff that he considered the contract of ■lease at an end, and that he would move from the premises.

The defence is that the lessor failed to maintain the building in a condition to serve the use for which it was leased, owing to original and inherent defects in the roof.

The building was leased by defendant for a furniture store.

The testimony is that the roof was a batten one, and that it was impossible to repair it to prevent its leaking. The leaks were over the entire roof, and when ever it rained the water in a great number of places went through the roof, and caused considerable damage to the furniture in the building. Repeated efforts were made by the plaintiff to repair the roof, but without success.

On August 7, 1889, the defendant addressed to plaintiff’s agent the following letter:

“ New Orleans, August 7, 1889.
“Geo. L. Bright, Esq., agent of property 30 and82 Baronne street, No. 10 Commercial Place, New Orleans, La. — Sir : I must insist upon the repair of this roof. I have been begging for years that the roof should be repaired, and since I have occupied the building there has nevef been a time during a rain when it did not leak. When the rain is unusually heavy, the gutters overflow and the water pours down from under the slates. I am damaged by this morning’s rain, from this cause, not less than $150, and can not stand this any longer without seeking a remedy. In the present condition of the roof I can not protect my goods.
I insist that there shall be no more patchwork, as has been done heretofore, but that the roof be thoroughly repaired. I will wait a reasonable time to see what you are going to do.
“Respectfully,
“J. G. Grant.”

The plaintiff’s agent replies as follows:

“ New Orleans, August 8, 1889.
“Mr. J. G. Grant — Dear Sir: I have paid $145 to repair the roof of the premises you occupy as my tenant, 50 and 52 Baronne street.
“I paid this, thinking that the repairs were needed from ordinary and natural wear and tear.
“I have since discovered that the repairs were necessary because of the skylight you put in the roof, and because your employés were In the habit of walking ¿n the roof to stop the leaks of your skylight.
“You are notified to remove the skylight and restore the roof as It was before, and you are requested to pay me $145.07.
“ Very respectfully, Geo. L. Bright,
“Attorney for Miss King.”

To which was sent this answer and notification:

“New Orleans, August 12, 1889.’
George L. Bright, Esq., Agent of Miss Josephine King, New ■Orleans, La. — Dear Sir: Your letter to me of the 8th August instant, in answer to my letter of August 7th, has been received.
.“As you refuse to make anew the roof of the property leased to me, and, as without a new roof, it is impossible for me to use said property, I am under the obligation of renting another property, and beg leave to notify you that I consider the lease between us at an •end, and will vacate property Nos. 50 and 52 Baronne street on the 81st August instant.
“ The premises are, therefore, tendered to you from and after said date. Respectfully, J. G. Grant.”

The skylight was placed on the roof by defendant, with the consent of the plaintiff. The roof leaked before the skylight was placed on the roof.

The proof is that the defect in the roof was an inherent defect in its construction. To make it tight and free from leaks would have required its reconstruction and a change in its original design.

The repairs to be made were not of that character contemplated by Art. 2604 of the Civil Code, when the lessee, in default of their being made by the lessor, can make them and deduct the amount from the price of the lease.

By the nature of the contract, the lessor was bound to maintain the premises in a condition to serve the use for which they were leased, and to cause the lessee to be in peaceable possession during the continuance of the lease.

This guaranty extends to the vices and defects of the thing leased, which prevent it from being used, even if it appear that the lessor was ignorant of their existence.

In this case the building was untenantable, totally unfit for the purposes for which it was leased. It was the duty of the lessor to reconstruct the roof, as required by the defendant. The plaintiff not only refused to do this, but demanded a sum of money from the defendant for repairs which she had made to the roof, and the removal of the skylight, to which she had consented should be placed on it. The facts in this case fully warranted the defendant in considering the lease at an end, and abandoning the premises. Civil Code, 2699-2700; Coleman vs. Haight, 14 An. 564; Caffin vs. Redon, 6 An. 487.

Judgment affirmed. ■


text:
    No. 10,786.
    C. W. G. Rareshide vs. Enterprise Ginning and Manufacturing Company.
    In a judgment regulating a seizure, the plaintiff and third opponent must assort all their pretensions. The judgment regulating the seizure having become final, it eannot be disturbed by parties to it, for matters which should have beer, urged in the first instance.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Omer Villeré for Plaintiff and Appellee.

      W. S. Benedict and H. S. Cage for Third Opponent, Appellant.
   The opinion of the court was delivered by

McEnery, J.

In the case of D. T. Weil against the present defendant, the plaintiff David T. Weil, who was interposed for the real plaintiff, Charles Hernandez, sued out executory process against the property of the defendant company, claiming a vendor’s privilege and special mortgage on the same.

, The plaintiff in this case, C. W. Rareshide, filed an' intervention and third opposition as the holder of a mortgage note executed by the defendant company.

He averred in his opposition that the notes held by Hernandez were paid at maturity, or some time thereafter, and extinguished, and that, therefore, the plaintiff, Hernandez, had no vendor’s privilege and special mortgage on the property seized; and that there being no other mortgage priming his, he should be paid in preference.

To this opposition Hernandez answered, and averred “that the two promissory notes upon which executory process has issued herein have not been paid at maturity or thereafter, as alleged by intervenor, but have been transferred in due course of business, ■with knowledge and consent of defendant and of the drawer, Anatole J. Forstall, through whom the plaintiff became the holder thereof: That said transfer carried with it all the privileges and mortgages securing the payment thereof, and was made prior to the execution of the note and mortgage now set up by intervenor in bar of plaintiff’s action.”

On the issues thus made up, on appeal to this court, there was judgment decreeing the extinction of the mortgage of Hernandez, upon which executory process had issued, and recognizing the rights of the third opponent to proceed in the enforcement of his mortgage.

On application for rehearing, which was refused, Hernandez urged the same grounds upon which he now relies for the recognition of his mortgage as the ranking one of the property. 42 An. 492.

Under the decree in his favor Rareshide proceeded to enforce his mortgage.

Hernandez filed a third opposition, claiming priority for his mortgage, alleging^ as grounds therefor that he was a creditor for the defendant company, and as such paid the notes, upon which he had issued executory process in the case of Weil vs. Enterprise Ginning and Manufacturing Company, and that by operation of law he was subrogated to all of the mortgage rights, hypothecations and privileges of the former holder of said notes.

Had this position been assumed by Hernandez, and the facts now alleged shown to. have existed in the first suit, a different decree-might have been the result.

This is stated in the reasons assigned for the refusal to grant a rehearing.

- And it is further said in the opinion, “How can Hernandez, after thus peremptorily repudiating the theory of no subrogation opposed to him and proclaiming that his rights flowed from a purchase made with the debtor’s consent, now claim that he was a creditor, and because such creditor was subrogated?”

This reasoning is applicable to the present case. If Hernandez, by his pleadings in the suit, had precluded himself from urging this matter on the application for a rehearing, the reasons for the estoppel apply with equal force, in another suit, to accomplish the same purpose.

Hernandez, in the suit to foreclose his mortgage, and in the contention between him and third opponent, Rareshide, was bound to assert all his pretensions growing out of the seizure.

The judgment regulating the seizure was final, and Hernandez can not now by urging matters which were within his knowledge, and which occurred before the seizure, disturb the seizure which was regulated by the judgment to which he was a party. Bowman vs. McElroy, 15 An. 66S. .

Judgment affirmed.


author: Breaux, J.

text:
      No. 10,625.
    John Byrd vs. New Orleans City and Lake Railroad Company
    Contributory negligence by a person, walking on the streets, will make it impos sible to recover from defendant sued for damages.
    The carrying a plank on the shoulder, measuring in length about six feet, on a principal thoroughfare, is not wrongful, but the person carrying it should be more than ordinarily careful. If an accident happens to him when attempting to board a steam street railway and the defendant company is not at fault, damages will not be allowed.
    APPEAL from the Civil District Court(, of the Parish of Orleans. Ellis, J.

      Henry L. Lazarus for Plaintiff and Appellant:

      Buck, Dinkelspiel & Hart for Defendant and Appellee:
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to recover damages in the sum of $5000, for injuries received in October, 1889, while attempting to. board the West End steam train in this city.

He alleges that the driver of the street car which caused the accident was grossly negligent and incompetent.

That the accident could have been avoided had he been prudent, and cautious.

That he is more than sixty years of age and enjoyed good health, prior to the accident; that he is a bricklayer and mason by trade,, and was employed in building and making repairs on tombs in the. cemeteries at the Metairie Ridge.

The undisputed facts are, that the plaintiff, at the time of the accident, was attempting to board the cars, the West End train, owned by the defendant company, and that a street car running over a line next to the train struck the wood on his shoulder, threw him down, and caused severe and painful injuries. He was on his way to work, at the cemeteries.

That the distance between the cars opposite each other, one on the West End track and the other on the Esplanade street track, is. about two feet, and the tracks are about four feet from each other.

That plaintiff had frequently travelled on these cars and knew the distance between them.

That Canal street is a busy street, on which there are a number of street cars.

That he had the pieces of wood, measuring from five to eight feet,, on his left shoulder; in his hands, he carried a cane, a bucket and an ax.

The wood was to be used by him in constructing a ladder he-needed in the performance of his work.

Difference of statements arises, and the facts are disputed with reference to the locality at which plaintiff was at the time; the direction he was facing; the rate of speed of the offending car; whether it was stopped at the time; the control of the mule pulling it, and the warning; the wounds and bruises he received, how caused, whether by thrusting him against'the West End train by the blow and pressure from the board on his shoulders, or by his fall on the track; whether plaintiff was walking at the time toward the front of the car or in the act of stepping on the platform at the rear; the direction of the planks on plaintiff’s shoulder; whether parallel with the road or perpendicular to the car lines; the sudden change of; position by plaintiff — are all testified to by the witnesses.

The defendant denied the allegations of plaintiff’s petition, and alleged that the plaintiff contributed to his injury.

The verdict of the jury and the judgment of the court reject plaintiff’s demand.

It would not serve any purpose for us to attempt to reconcile the conflicting testimony of the witnesses, nor to determine the preponderance of testimony with reference to each fact it was sought to prove, as unquestionably the plaintiff had the right to seek conveyance on the West End train. He had the right to carry tools and planks needed by him; to reasonable protection, and not to be exposed to accident.

But when he carries wood or any other material taking up more room than persons generally occupy, on the streets, he should be cautious and more than ordinarily active in his movements.

The jury and the Judge of the District Oourt decided that the plaintiff was not free from carelessness, and had contributed to his injury. After a careful examination of the facts we have reached a like conclusion.

The plaintiff was familiar with the locality and had taken the train frequently at the place of the accident.

It is in proof that, had he stood on the track with his plank parallei with the direction of the road, in the line he was walking at one time, the accident would not have happened.

Instead of standing still, or of continuing in a parallel direction with the track, at the very time the car was approaching the narrow place between the two tracks, he turned with his plank perpendicularly to them, and thereby they were made to project over the two tracks, one end, just opposite the platform of the West End train, touching the fender, the other immediately in'front of the moving street car. The force from the street car and the resistance from the standing train pressed the plank against the plaintiff and caused the accident.

The evidence does not satisfy us that the mule hitched to the alleged offending car was unmanageable, as contended by plaintiff. All of defendant’s witnesses testify that it was in a walk at the time; that it was a gentle mule. Those of the plaintiff testify that it was unmanageable, but it is not shown that the speed was more than ordinary.

The limited space between the ear and the steam train is forcibly represented by counsel as being a man-trap and a negligence per se.

The encumbering planks, suddenly turned as they were, from a parallel to a perpendicular direction to the tracks, do not present as an issue the question of space needful at the place of the accident, for plaintiff is precluded, by his own act, from recovering damages

Judgment affirmed.


text:
    No. 10,845.
    The State ex rel. J. B. Chandler vs. Thomas C. Ellis, Judge of Civil District Court for the Parish of Orleans.
    The functions of the writ of certiorari can not bo invoiced to pass upon the correctness of a judgment of dismissal rendered by a court of competent jurisdiction, in a case in which the proceedings have been regularly conducted.
    Those functions are restricted to ascertaining the validity of proceedings on the face of the record, in point of form.

    A PPLICATION for Certiorari.

    'The Relator in propria persona.

   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for certiorari.

The relator complains that a certain suit which he had brought to annul a judgment against him, having been allotted to Division E of the Civil District Court for the Parish of Orleans, was removed by the judge of that division to Division A, by which the judgment attacked had been rendered; and that, on trial of eertainjexceptions in the case, the judge of the last division ruled, sustaining^them and dismissing the action.

The relator charges, that the judgment thus rendered is erroneous and aggrieves him. He contends that, as the case is unappealable, he is entitled to »a writ of certiorari to test the correctness of the judgment of dismissal.

The division had jurisdiction over the suit to annul, so much so, that no other court could entertain it and pass upon its merits, to .affect, in any way, the judgment attacked. C. P.'608; H. D. 746-2.

The supervisory jurisdiction of this court must not be confounded; with its appellate jurisdiction. 38 An. 968.

Proceedings like the present ones have for their object to ascertain, not the correctness of a judgment, but the validity of the proceedings in the inferior court, on the face of the papers, and do not-perform the functions of an appeal. C. P. 855; T. D. 105.

The proceedings in which the judgment of dismissal complained of' has been rendered are not assailed as irregular in form. They do. not appear so to be.

The relief sought can not be granted.

Application refused.


text:
    No. 10,855.
    The State ex rel. Chandler vs. Fred. King, Judge of Civil District Court for the Parish of Orleans.
    A suit to annul a judgment need not be allotted, as cases before the Civil. District Court' for the parish of Oi'leans are required to be, under the Constitution.
    Such suit must be determined by the division in which the judgment attacked was rendered, which is the only one competent to pass upon it.
    If alloted to another division, it would have to be referred to the division in which the judgment attacked was rendered.

      Mandamus issues for the performance of a ministerial duty, and never to coerce 'the exercise of a judicial discretion, in a pm-tteuldr-teay. The judgment of a competent court can not be controlled in that mode by that of the appellate court, which can reverse it on appeal only, or where grave irregularities of form in the proceedings require it.
    ^PPLICATION for Mandamus.
    The Relator in propria persona.

   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a mandamus.

The Relator complains that the District Judge has dismissed a suit-brought by him because the petition contains insulting and improper expressions, in violation of Article 172, Code of Practice,, and he prays that a writ of mandamus issue, commanding said judge-“to render justice, reinstate the suit, and have it allotted according to. law.”

The suit had for object the nullity of- a judgment rendered in.the succession of Emily Glover, on January 10, 1890, in the division over which the District Judge presided, and by himself. It was instituted in the mortuaria.

The Relator complains that the case had not been allotted to that division, and that the District Judge usurped powers not belonging to him. He avers further that the facts contained in the petition, could not be expressed otherwise by him.

The only irregularity charged is that the case was not allotted to the division presided over by the District Judge.

The Relator does not undertake to swear positively that the case was not allotted, but simply that he verily believes so.

In his return the District Judge affirms that the case was allotted regularly, to his division, on the 27th of April, 1891.

It makes no difference, however, whether it was, or not, for the plain reason that the law requires that a suit to annul a judgment be brought before the court which rendered it, and before no other, and the Constitution has not abrogated it in that respect.

Had the case been allotted to any other division, the judge presiding over it would have had to decline jurisdiction, and to refer it to the division in which the judgment attacked had been rendered. See State ex rel. Chandler vs. Ellis, Judge, recently decided. 43 An., p. —.

Such being the case, it is manifest that the District Judge, defendant herein, not only did not usurp jurisdiction, but was the only one competent to pass upon the suit in nullity. ■'

There is nothing to show that the case was appealable.

If it is, the remedy of the Relator would be by appeal, when the correctness of the judgment of dismissal complained of can be considered and determined. "

If it is not appealable, that correctness can not be tested, either on an application for a certiorari or for a mandamus.

In the first instance, this court would have authority to inquire into the matter only to ascertain the validity of the proceedings in point of form, and in no way to pass upon the intrinsic correctness of the judgment of dismissal.

In the second' instance, this court would likewise be impotent to afford the relief asked, for the reason that mandamus issues merely to compel the performance of a ministerial duty, and that, in the present instance, the defendant has exercised a legal judicial discretion vested in him by law.

His judgment can not be reversed by mandamus. Doing so, would be to substitute ours to his, in a matter which he has the right to determine for himself.

Application refused.


text:
    No. 10,843.
    The State of Louisiana vs. J. E. Warren.
    In a capital case, a separation o£ the jury, part o£ the jurors remaining without a deputy in charge, while the others are led out of the building, is fatal to the prosecution.
    APPEAL from the Twenty-firstDistrict Court, Parish of Iberia. Mouton, J.

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

      It. O. Hacker and D. Todd for Defendant and Appellant:
    Where, in a.capital case, the jury is proved to have separated after they have retired to deliberate — especially where the proof is that a part of . the jury remained for a time out of the court-house, out of sight and out of hearing of the remainder, bad conduct will be presumed, and a verdict of guilty will be set aside. S Rob. 554; State vs. Hornsby, 21 An. 321; State vs. Evans, 23 An. 213; 41 An. 689; State vs. David No churn, Waterman’s Dig. p. 454, Nos. 151, 152, 153, 154, 155; Wharton’s Crim. Law, 789.
   'The opinion of the court was delivered by

Bermudez, C. J.

The defendant was prosecuted for administering poison with intent to commit murder.

He was convicted and sentenced to hard labor for life.

During the trial he took several bills of exception. After verdict he made a motion for a new trial and a motion in arrest of judgment.

Relief having been denied him, he appeals.

It is unnecessary to pass on the bills and on the motion in arrest.

The motion for a new trial charges that, after the jury had retired to deliberate on their verdict, they were separated. The record shows that the sheriff conducted four of the jurors from the jury room, through the court room, into the yard, allowing the other eight to remain in the jury room, up stairs, with no deputy in charge.

They were accessible; misconduct is presumed.

In a capital case, separation of the jury, such as thus occurred, is fatal to the prosecution. 8 E. 554; 4 An. 435; 21 An. 321; 23 An. 213; 41 An. 689.

The dereliction on the part of the sheriff is censurable.

It is therefore ordered and decreed that the verdict in this case be set aside, and the sentence upon it avoided and reversed'; and it is now ordered and adjudged that the case be remanded to the lower court for further proceedings according to law.