text:
    No. 6399.
    Widow Mary Murphy vs. The Factors and Traders’ Insurance Company et al.
    Under our laws and jurisprudence, all parties who do not appeal from a judgment are ap-pellees and the judgment cannot he reversed or amended as to them.
    Hence, in a case brought from this Court to the Supreme Court of the United States, and our judgment is there reversed, none hut the party who took the writ of error can invoke any relief under the judgment of reversal, although the interests of other persons who were parties to the original suit, could he affected by the judgment.
    When this Court is instructed to render a decree so as to conform to the opinion of the Supreme Comt of the United States, it will not render a judgment which militates with the established rules of our jurisprudence. It is an inherent power in the highest court of every State, even while enforcing a judgment of the Supreme Court of the United States, to decide upon its own jurisdiction and upon the jurisdiction of all inferior courts to which its appellate power extends.
    APPEAL from the Fifth District Court for the Parish of Orleans. Cullom, J.

      James D. Coleman for Plaintiff.

      R. L. Gibson and G. L. Hall and Singleton, Browne & Choate for Defendants.
   The opinion of the Court was delivered by

Poché, J.

The present contest grows out of a motion to execute the mandate of the Supreme Court of the United States, reversing the judgment of this Court under a writ of error obtained and brought up by the Factors and Traders’ Insurance Company, one of the defendants and appellants in the ease on appeal to this tribunal.

Our judgment was in favor of plaintiff, and against the Factors and Traders’ Insurance Company and several other defendants; and was to the effect that the prior lien and mortgage claimed by the Insurance Company and the privileges severally claimed by the other defendants had been extinguished by confusion, growing out of the purchase, jointly, by these defendants, of the property on which they claimed their sevei al mortgages and privileges. 33 Ann. 454.

Reversing our judgment, in so far as it rejected said privileges, the Supreme Court of the United States held that although the bankruptcy salé did not affect the mortgage rights of the plaintiff, it had no greater effect on the liens set up by the other parties who had participated in the purchase and who were not thereby debarred of the right of enforcing these liens under a sale which the mandate of that Court authorized to be made at the instance of Widow Mary Murphy. The Court further recognized a prior and ranking privilege in favor of the Insurance Company, for amounts disbursed in the payment of taxes and prior liens and for the preservation of the property since the sale, subject to its accounting for such rents and profits as may have been received by it from said property.

Unfortunately for a speedy administration of justice in the premises, that cxhalted tribunal did not draw its own doPree, but directed this Court to enter a decree in conformity to its opinion.

The contention made by plaintiff is that the writ of error having been taken by one of the defendants only, the decree rendered by the Supreme Court cannot affect the other defendants whose rights were determined and concluded under our decree, which decree could not be revised quoad, the defendants, who had not made themselves parties to the writ of error from the Supreme Court of the United States to this tribunal.

The record shows the existence of the facts as advanced by plaintiff; and we feel great difficulty to reach a proper solution of this complication which we sincerely regret.

The language used in the opinion which we are called to interpret, and from which we are required to frame a proper decree, unmistakably impresses the mind with the conclusion that the opinion has reference to all the defendants who had set up liens or mortgages to, and had participated in the purchase of, the property at the sale in bankruptcy. Hence, the natural conclusion would favor a decree affecting the rights of all these parties. But in this process of reasoning we are met with two unalterable rules of law and practice which effectually prohibit such an application.

One of those rules emanates from the practice in the Supreme Court of the United States, under which judgments are held to be conclusive only between the parties and their privies. None of the defendants, besides the Insurance Company, are parties to the writ of error which culminated in the reversal of our judgment. And it is too plain for controversy that there is no privity between the other defendants and the plaintiff in error. The nature of their demands is that they severally claim privileges on the property, superior or prior in rank to the lien and to the mortgage claimed by the Insurance Company. Ear from being identical in interest with the latter, they are actually and legally in antagonism to the company.

Under our practice the rule on this subject is elementary and is coeval with our jurisprudence. All parties who do not appeal or do not perfect their appeal are appellees and the judgment cannot be amended as to them. The rule has been applied to the following extent. In a suit against two partners, judgment was rendered against them in solido. One of the defendants alone appealed and this Court reversed the judgment of the lower court, and rendered a judgment in favor of the defendants, and in a subsequent proceeding it was held by this Court that the judgment of reversal could not be invoked by the defendant who had not appealed, and that the judgment rendered against him in the lower court remained in full force and vigor, notwithstanding the release therefrom of his co-debtor and co-defendant. Howard vs. Waggaman, 28 Ann. 99.

We, therefore, consider the rule as equally well established under both systems of practice, to the effect that a judgment is conclusive only between the parties, and that a judgment of reversal by an appellate court of final resort, cannot avail a party who has not participated in the appeals or in the writ of error as the case may be.

But movers contend that as the title to the property was in the Insurance Company alone, when the suit was instituted, the corporation was the only defendant sought by plaintiff, and that, as it held the property in trust for the other privilege creditors, the decree must redound to the benefit of all of said parties.

Pretermitting a discussion of the right of the Insurance Company to thus champion the rights of these parties, and conceding such right for the sake of argument, we find in the record that in its answer to the original suit, the Insurance Company disclosed the names and the interests of these parties, and asked that they be cited to appear and defend their respective interests. Thus we see that the company had severed its connection as the agent or trustee of these parties, and formally declined to further represent them in the contest.

The record shows that the creditors thus called, who had been the co-adjudicatees at the bankruptcy sale, all came into court and made their own respective defenses— and that with one solitary exception, they severally and separately took and perfected their appeals to this Court from the district court. We need not argue the proposition which is deeply imbedded in our jurisprudence, that as to the defendant who was not an appellant before us we were powerless to grant him any relief from the judgment which had been submitted to our action by his co-defendants.

The same obstacle lies in the way of defendants, appellants, who were cast in this Court and who failed to make themselves parties to the writ of error from the Supreme Court of the United States.

Until otherwise informed, we cannot presume for a moment that the highest tribunal in the land intended, by its judgment, to reach, either by burden or relief, persons who were not parties or privies to the proceedings under which the matter was brought to its revision.

We must therefore hold, as we believe, that under the legal meaning and import of the decision, none of the parties in this controversy, besides the plaintiff in error, can successfully invoke any relief under the effect of the opinion which now occupies our respectful attention.

We would feel great diffidence to construe an opinion of that exalted tribunal in a manner apparently conflicting with the literal meaning of the language used, did we not understand, under our sense of duty, that the authority to thus proceed has been sanctioned by that Court itself. t

In the case of Davis vs. Packard, 8 Peters, 320, the Court dealing with a kindred matter, announced the following proposition:

Though, the highest Court of a State to which a writ of error goes from this Court, cannot re-examine a reversal or affirmance here, and though the judgment of'this Court, that the judgment of the State Court be reversed, does ipso facto reverse it, yet if the mandate does not direct any mode of proceeding thereon the State Court must judge of its own jurisdiction and proceed accordingly.”

In that case the' plaintiff in error had been sued in a State Court, and his plea having been rejected in the court of the first instance as well as in the highest court of the State, he sought relief in the Supreme Court of the United States, where the judgment of the State Court was reversed and the case remanded to it, with instructions to conform its judgment to the opinion rendered. In due course the mandate of the Supreme Court was ordered filed in the State Court, but the latter Court, after reversing its previous judgment, dismissed the appeal from the court of the first instance, on the ground that the error complained of not being apparent on the record, the Court, which was a court for the correction of errors, was without power to pass on an alleged error not apparent in the record. On a writ of error to correct the latter judgment, the Supreme Court refused to interfere, and justified the course of the State Court.

Owing to the importance of the doctrine there established, we make it our pleasant duty to herein transcribe the following language which fell from the pen of Chief Justice Marshall, the organ of the Court in that case: It is not to be admitted that the Court whose judgment has been reversed or affirmed, can rejudge that reversal or affirmance; but it must be conceded that the court of dernier ressort in every State decides upon its own jurisdiction and upon the jurisdiction of all the inferior courts to which its appellate power extends.” * * * Neither the judgment nor mandate of this Court prescribed, in terms, the judgment which should be amended by the court of errors of New York. This Court proceeded to order that the cause be remanded to the said court for the correction of errors with direction to conform its judgment to the opinion of this Court. * * *

“ The judgment rendered in the court of errors being thus reversed, because of this exemption, it was for the court of errors to inquire and decide in what manner it should conform its judgment to this opinion. Had the Court re-entered its former judgment, the direct opposition of this proceeding to the mandate would have been apparent. But this was not done.” * * ,"

If the jurisdiction of the court for the correction of errors does not, according to the laws by which the judicial system of New York is organized, enable that court to notice errors in fact in the proceedings of the Supreme Court, not apparent on the face of the record, it is difficult to perceive how that court could conform its judgment to that of this Court otherwise than by quashing its writ of error to the Supreme Court. Had that been its original judgment, it is not believed that this Court would have reversed it; and we do not think that, as now rendered, it can be held to be erroneous.”

The similarity between the two cases is made apparent by the foregoing quotations. In the present instance, as no judgment rendered 'by us on appeal could affect or benefit parties who Were not appellants in the case, it is difficult to conceive how we could attach such an effect as to parties similarly situated in a judgment rendered by the Supreme Court of the United States.

Hence, we have concluded to order the following decree:

Considering that the judgment rendered in this Court against the Factors and Traders’ Insurance Company in this cause has been reversed and set aside by the Supreme Court of the United States on a writ of error obtained by said Insurance Company, it is ordered, adjudged and decreed that our said judgment rendered against the Factors and Traders’ Insurance Company is now reversed and set aside; and that in order to conform with the opinion of the aforesaid Supreme Court, the judgment rendered against said Insurance Company in the Fifth District Court for the parish of Orleans in the case entitled Widow Mary Murphy vs. The Factors and Traders’ Insurance Company et al. be and the same is hereby annulled, avoided and reversed; and that said cause be remanded to the Civil District Court for the parish of Orleans, now vested with jurisdiction over the same, to be therein proceeded with according to law and the views herein expressed.

It is further orcmled that Widow Mary Murphy be allowed to proceed under the mortgage to a sale of the mortgaged property, and that the funds realized from said sale, as well as from the accounting which the Factors and Traders’ Insurance Company is hereby ordered to make of the rents and revenues which said company has received on account of said property, be brought into court for distribution and that the same bo applied as follows:

1. To the payment of the costs incurred and to be incurred in order to effect said sale.

2. To reimburse the Factors and Traders’ Insurance Company in all disbursements made for the payment of taxes and prior liens and for the preservation of said property from loss and deterioration.

3. To the payment in equal shares of the mortgage of said Widow Mnrphy and of the Factors and Traders’ Insurance Company.

It is further ordered that all costs incurred by the appeal of the said Insurance Company to this Court, and by the writ of error from the Supreme Court of the United States, and all costs incurred in the lower court in the case of Widow Murphy vs. Factors and Traders’ Insurance Company, except as hereinabove provided for to effect the sale of the mortgaged property, be paid by said Widow Mary Murphy.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9168.
    Marie L. Budd et al. vs. James D. Houston, Tax Collector, et al.
    Though tho State cannot ho sued in a State court, yet whore an adjudication of immovable property at a tax sale has "been made to the State, in a suit against the tax collector malting the sale, and the recorder of mortgages who had recorded the assignment alleged to he void, aud the register of conveyances charged with tho duty of recording the tax title, brought by the original owners in possession, the proceedings connected with the sales from the assessment to the sale may be reviewed by tho court and judgment rendered maintaining or annulling the sale and ordering tho erasure of the inscriptions.
    Tho State may not be concluded by an adverse judgment in the premises from assorting her rights to the property in a diret action or other proper proceeding.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      B. R. Forman for Plaintiffs and Appellants.

      Blanc & Butler for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

Tho plaintiffs allege in substance that they are the owners of certain property in the city of New Orleans, described in their petition ; that said property has been illegally sold at a tax sale and adjudicated to the State in 1875, and had again been exposed to sale in 1883 ior taxes and a second time adjudicated to the State.

The nullity of said sales and adjudications is averred on account of radical defects in the proceedings unnecessary to mention specifically.

It is further alleged that these sales, though null, cast a cloud on the title of the petitioners to the property, and the tax collector, J. D. Houston, by whom the last apjudication was made, was sought to be restrained by an injunction from recording any conveyance of the property under such adjudication, and he, and the recorder of conveyances, and the recorder of mortgages, and the city of New Orleans, were cited as defendants j and it was prayed that said sales and adjudications be declared null and their registry be forbidden and erased if already made, etc.

Janies D. Houston, the tax collector, appeared and filed an exception, to the effect that the court was “without jurisdiction to hear and determine the validity of the title of the State to the property in the absence of consent on the part of the State.”

This exception was sustained and the suit with respect to Houston, tax collector, was dismissed, and from this judgment this appeal is taken.

The evident meaning of the exception is, that this is a suit against the State, and that the State cannot be sued without her consent.

The State is not sued in this case, though it is asked that the Attorney G-eneral be notified of the proceeding; but no appearance has been entered for the State and no claim set up by the State herein to the property in question. The State may have an interest in the suit, as it was doubtless under the authority of the State that the tax collector proceeded in making the sale complained of. The State, however, is no party directly to the suit.

The question then arises, whether a suit of this character can be brought against the officer or officers whose acts are charged to be illegal and enquiry made into the alleged irregularities of their proceedings, and the same judicially determined, where the State is no party to the suit, although the State apparently may be interested therein.

It is well settled that where an officer is proceeding to collect a State tax illegally, either on account of a void assessment or irregularity in the mode of collecting, or for other cause, though the State is interested in such proceeding and the officer is acting under the direct authority from the State, that the proceedings maybe arrested by injunction in a suit against the officer alone. Blackwell on Tax Titles, p. 553 et seq.

It seems equally clear that where the sale has been consummated and the property has been adjudicated to the State, but the tax collector has not registered the sale, that the owner may enjoin the officer from registering the sale to prevent a cloud being cast on his title by such registry.

We think the doctrine niay be extended further, and that, even where the adjudication has been made to the State and the sale recorded, that judicial inquiry may be made into the character of the proceedings in a suit against the officers whose acts are complained of and the nullities charged, if they exist, declared and the proceedings annulled and set aside.

The true doctrine, as wo gather from frequent adjudications, seems to be that although a State cannot be sued without her consent, yet an action can be maintained against individuals without such consent, though the judgment rendered in such case may involve the right or title of the State to property held by such persons as the State’s agents, and the existence and evidence of such title depend on the acts or proceedings of such persons acting as officers of the State.-

This whole question has been recently thoroughly considered and discussed in the celebrated case of the United States vs. Lee, 107 U. S. 196, being an action to recover the Arlington estate, which had been sold at tax sale and bought at such sale by the United States, and the suit was instituted against the custodians of the property. In that case all the authorities and decisions bearing on this important question were critically reviewed, and judgment rendered annulling the tax sale, evicting of those in charge of the property and restoring the original owner to the possession of the same. It was therein announced that the principle on which that decision rested was equally applicable to each of the States, where the title of a State to property might be involved. See also Miegs vs. McClung, 9 Crunch, 11; Osborne vs. Bank, 9 Wheaton, 738; Grisar vs. McDowell, 6 Wall. 363; Brown vs. Huger, 21 Howard, 305.

It is, however, urged that the instant case differs from that of United States vs. Lee and other cases above cited, in this respect: that the persons made defendants in these cases were in the actual possession of the property, although holding for the government; whereas, in this case, the parties against whom the suit is directed are not in possession.

We do not think that this distinction or difference is material. In those cases, as stated, the parties sued were but custodians or occupants of the property for the government, which claimed title to the property, and therefore but nominal defendants. Yet the entire proceedings, upon which the claim of the government was founded, were reviewed by the court and declared void, and the title under them pronounced a nullity, the keepers in charge evicted, and the original or true owners put in possession.

We think these cases are even stronger in favor of the principle in question than a case like the present one, where the original owners have never been divested of possession by the State, and where, being-in possession, they are but seeking to remove a cloud on their title, resulting from the acts of persons deriving their authority from the State,

It is charged here that tlxis cloud is produced by the registry of a void assessment by the recorder of mortgages, by the several illegal adjudications and the threatened registry of the same, and the Court is asked to review these alleged illegal tax proceedings and acts of those several officers, and if the complaint of the petitioners is well founded, to apply the corrective and declare the acts null.

We are satisfied that under the precedents cited the court is authorized to do so. We are not called on to determine now what effect such action on the part of the court may have on the right or title of the State under these adjudications, or whether the right or claim of the State may be concluded or even prejudiced thereby. That is a matter to be determined should the State, disregarding the proceeding and judgment against these officers or individuals, assert her title to the property by a direct action or otherwise.

In conclusion, it seems to us if the State can take the property of one of her citizens without warrant of law or under proceedings that are absolutely null, according to the allegations in this case — which allegations, for the purpose of the exception, we must assume to be true— and that the party thus despoiled is precluded from making any complaint or having his grievance settled, on the technical plea that the State cannot be sued and is thus absolutely without a remedy for the wrong suffered, then the solemn guarantee in the Constitution of the United States and of the several States, that no person shall be deprived of his property without due process of law, and that the same shall not be taken for public use without due compensation, would prove to be the veriest mockery. Constitution of the U. S. art. 5 of Amendments; Const, of La. art. 156.

The doctrine of the immunity of a State from suit is derived from that principle of the English law formulated into a maxim, “ that the king cannot be sued in his own courts;” but the principle has not been rigidly and technically applied in American jurisprudence, though never literally controverted. Even in England, however, it is no longer a truism that the “king cannot be sued,” for there, at the present time, the proceeding known as the “petition of right” affords a subtle method by which, as in other instances, crude aphorisms adopted in the early'dawn of British civilization, and standing out as so many legal hydras in the way of justice, may be circumvented. And now, by means of this piocess, the sovereign may be reached and the property rights of the crown be made the subjects of judicial inquiry and determination.

It is therefore ordered, adjudged and decreed that the judgment of the lower eonrt be annulled, avoided and reversed j that the exception filed by J. D. Houston, tax collector, be overruled and the cause remanded to the lower court, to be proceeded with according to law, at the cost of the appellee.

Judgment reversed.


author: Manning, J. Tobd, J.

text:
    No. 9200.
    Succession of John Geddes.
    Where an appeal has been granted, under a mandamus from this Court, in conformity to our ruling, a motion to dismiss, based upon the same grounds as was the refusal of the lower court to grant the appeal, cannot prevail.
    Where three separate issues are made in the settlement of a succession, all tending to one conclusion, and are the subjects of separate judgments, they may be all brought up in a single appeal, and one appeal bond is sufficient.
    The functions of an executor are at an end when he has discharged the debts and legacies and rendered his account. He cannot afterwards prolong his administration for the purpose of effecting, by suit, a liquidation of the conjugal community that existed between the testator and his surviving spouse, and a partition of the community property, not even if joined by the heirs in such suit.
    When his duties have terminated and his account homologated he cannot properly refuse the demand, made by the widow in community or heirs, to surrender the property in his hands to them. The settlement of the community and partition of the property must be left to them.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. Gilmore & Sons for the Appellant.

      J. Ad. Rozier and W. B. Lancaster for the Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

There are two appeals — tbe first embracing three several judgments — one on a rule taken by Mrs. Geddes on the executors to pay legacies, etc. and close their administration; tbe second, decreeing a liquidation of tbe community in order to determine tbe respective rights of tbe widow and tbe heirs of tbe deceased; tbe third for tbe taking of depositions of witnesses before a notary. Tbe other appeal is from tbe final judgment discharging tbe rule taken by Mrs. Geddes on the executors to surrender tbe property, assets, and funds of tbe succession.

1. The first ground for dismissal is that one of the judgments is interlocutory, did not need the signature of the judge, and not having been taken at the same term at which it was rendered, the appeal should have been taken by petition.

The appeal was granted under a mandamus from this'.Court, and in the opinion therein rendered we said the judgment was final as to the matter therein embraced. The appeal was taken during the term iu which the judgment was signed.

2. Objection is made to the certificate of the clerk, but ive find it in form, and the clerk has copied all the record. That he did not specify to which order or judgment each paper or document was applicable doubtless creates confusion, but that fault is not imputable to the appellant.

3. That the record and certificate were made under, the instructions of the appellant’s counsel appears to be an error of fact. None were given.

4. That three separate bonds should have been given for the appeal from the three several orders. The bond was given in conformity to the order of the judge rendered upon our mandamus, and also in conformity to the ruling in Sue. Clark, 30 Ann. 801.

5. We said in the opinion on the mandamus that the suspensive appeal necessarily suspended also the order for taking depositions.

Had the movers attentively read that opinion, they would have found most of the objections they now raise already answered.

The motion is denied.

On the Meeits.

Tobd, J.

John G-eddes died in the city of New Orleans, on the 17th of January-, 1883, leaving a last will which made special legacies to the surviving wife and several other persons, and bequeathed the remainder to his next of kin under universal title, and appointed J. A. Shakespeare and Alden McClellan, executors.

The property left by the testator was inventoried at $147,910 84 and was all community property acquired during the marriage between him and his surviving spouse. There were no debts except those of the last illness and the funeral charges.

The debts and special legacies have all been discharged.

There are appeals before us from four judgments :

1. One discharging a rule on the executors to pay the legacies and erect a tomb over the remains of the deceased.

2. A second decreeing a liquidation of the community between the deceased and his surviving widow, in an action for that purpose instituted by the executors.

3. A third ordering the taking of depositions to be used in the partition or settlement of the community, and

4. Fourth and lastly a judgment discharging a rule taken by Mrs. Geddes on the executors to surrender the property and assets of the succession to herself and the residuary legatees.

Mrs. Geddes is appellant from these several judgments.

Inasmuch as it appears that the executors have discharged the legacies and erected the tomb, and since the order providing for the taking of the depositions mentioned depends on the determination of the suit for the liquidation and partition of the community, we shall confine our attention to the consideration of the judgment and proceedings of this last named case and of that rejecting the widow’s demand for the surrender of the property.

Mrst — As stated before, the debts and legacies have been discharged. The property in the hands of the executors belongs jointly to the widow and the legatees under universal title. There was no necessity for the executors to prolong their possession of it till the liquidation of the community and partition of the property thereof could be effected. Their continued possession of it was not required for such purpose. Even if it be true that upon a settlement of the community the widow would be largely indebted to the heirs or legatees, such fact would not justify any action on the part of the executors looking to the benefit of the latter. It is to be presumed that without the aid of the executors they would be able to take care of themselves and secure their own rights, and the law affords every means and facility for doing so that it does to other parties similarly situated.

In point of fact the functions of the executor ceased when the debts were paid and the special legacies discharged. Nor does it affect the question that the heirs joined the executors in this settlement or partition suit. The institution of such a suit was wholly unauthorized and the irregularity was not cured by action of the heirs. They could not legally join the executors in such an unwarranted action. C. C. Arts. 1668 to 1671; 4 Ann. 571; 6 Ann. 61; 32 Ann. 321.

It is however urged that Art. 1135 of the Civil Code furnishes a justification for such a suit. This article is found in the chapter of the Code which treats of the administration of vacant successions, and it might be well doubted whether it refers even indirectly to the duties of executors, but apart from this, a careful reading of the article and comparing it with the French text fully satisfies us that the word “community” in the article has no reference to the conjugal community.

Second — It follows as a corollary from the foregoing that the legal functions of the executor having terminated and all the purposes of their appointment having been accomplished, and their account having-been filed and homologated, nothing more was left for them to do but to surrender the property to the joint owners, leaving them to make all necessary settlements between themselves. Sue. Baniugarden, 36 Ann. 46.

It is, therefore, ordered, adjudged and decreed that the judgments of the lower court appealed frofii be annulled, avoided and reversed, and proceeding to render such judgments as should have been rendered, it is further ordered that the exception of Mrs. G-eddes to the suit for the liquidation and partition of the community be sustained and said suit dismissed, and that the rule taken on the executors for the surrender of the property in their charge to the widow and heirs of John Geddes be made absolute. Appellees to pay costs of both courts.


author: Fenner, J.

text:
    No. 9219.
    Mr. and Mrs. John Shea vs. E. S. Reems.
    "Where a person with his horse and wagon, is employed hy another to perform services for the latter at a fixed wage of so much per week and certain additional commissions, the payment of wages establishes the relation of master and servant, implies subjection of the latter to the control and direction of the former, and gives rise to the responsibility of the master for the servant’s negligent injuries in the course of his employment.
    "Where the servant who is employed to peddle goods for the master in a horse and wagon is driving to the latter’s store to get goods, such driving is in the discharge of his duty and in the course of his employment, though he then had none of the master’s goods in his wagon ; and injury inflicted by negligent driving is subject to a rule of respondeat superior.

    The defense of contributory negligence on the part of the injured plaintiff is not sustained by the proof, and the damages allowed is not excessive.
    PPEAL from the Civil District Court for the Parish of Orleans. f\ Monroe, J.

      E. E. Moise for Plaintiffs and Appellees.

      Jonas & Nixon for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is an action for damages for injury to plaintiff, Mrs. Shea, resulting from being knocked down and run over by ahorse and wagon driven by one Rickert, the servant, as is claimed, of defendant, and occasioned, as alleged, by his negligence, without fault on her part.

From a verdict and judgment awarding $1000 damages against defendant he prosecutes the present appeal.

He assigns as grounds of error:

1. That Rickert was not the servant of defendant.

2. That, if such servant, the damage claimed was not done by him while exercising the functions for which he was employed.

8. That Mrs. Shea was guilty of contributory negligence.

4. That, in any event, the damages awarded are excessive.

I.

The evidence leaves no doubt that Rickert was employed by defendant, Reems, to peddle goods for the latter at a fixed wage of six dollars per week, with an additional compensation of two per cent on the price of all goods sold, and with the privilege of keeping any excess of price for which he sold the goods, over and above the prices limited by Reems.

Under the textual provisions of the Code this contract established the relation of master and servant.

Servants, says the Code, are those “ who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation for the benefit of him who has contracted with them, for a certain price or retribution, or upon certain conditions.” Art. 163.

There are three kinds of servants, viz.: 1. Those who hire out their services by the day, week, month or year, in consideration of certain wages; 2. Those who engage to serve for a fixed time, etc.; 3. Apprentice, etc.” Art. 163.

Rickert clearly belonged to the first class of servants, and Reems bore to him the correlative relation of master.

There seems little need to refer to common law authorities on the subject, but, were we to do so, they would afford defendant no relief. In that system the test of the relation of master and servant is found in the question whether one person has placed himself under the direction and control of another in such manner as to confer upon the latter the power of discharge for disobedience. Cooley on Torts, p. 532 ; 2d Thompson on Neg. p, 892, and authorities cited.

Our Code ordinarily infers such power of control and discharge from the payment of wages. We find the same rule to prevail at common iaw, where, in discussing the distinction between servants and independent contractors, it is thus stated by Mr. Thompson: Perhaps the most usual test by which to determine whether the person doing the injury was a servant or independent contractor, is to consider whether he was working'by the job or at stated wages — so much per day, week or month. A person who works for wages * * * is a servant, and the master must answer for the wrongs done by him in the course of his employment.” Thompson on Neg. p. 912, §39.

And, indeed, it would be difficult to imagine one person’s binding himself to pay a fixed compensation weekly for the service of another, if the latter were to be emancipated from the former’s direction and control and left free to perform the service or not at his whim, or to perform it in a manner opposed to the employer’s will, and, perhaps, yielding him no benefit. If the term of employment had been for one year and at a fixed annual compensation, the incongruity of such a construction would be more striking ¡ but the principle is identical.

The attempt to pervert the relation between Reems and Rickert into a mere bailment to sell goods upon commission like the relation between a cotton factor and his shipper, is entirely negatived by. the contract for wages, which placed Rickert’s time and labor at the exclusive service and control of Reems within the scope of the employment.

The fact that, under the laws of the United States, Rickert, in order to peddle tobacco for himself or anybody else, was compelled to take out a license in his own name does not affect the case. Suppose the Constitution permitted and the law required clerks in mercantile houses to take out a license on their occupation : would that destroy the relation of master and servant between them and their employers ?

Nor is the case affected by the fact that Rickert was the owner of the horse and wagon which he was driving. It is not denied that the horse and wagon were essential to the service for which he was employed. In fact, at the date of the employment they belonged to Reems, who sold them to Rickert on credit, and who took them back, after the termination of Rickert’s employment, on refunding such part of the price as the latter had paid. The service for which Rickert was employed was to x^eddle goods for Reems with that horse and wagon; in driving the same in that business he was acting as a servant in the course of his employment, and for injury done by him the rule of respondeat superior applies, independent of the ownership of the horse and wagon.

II.

It is claimed, however, that at the time of the injury Rickert was not exercising the functions for which he was employed. This is based on the fact that at that moment he had none of Reems’ goods in his wagon. But it is clearly proved that he was on his way to Reems’ store to get goods. Whether he was going after goods for the first time that morning or returning for more afteT having sold out those first taken does not clearly appear. But what matters it? Was it not his duty and within the scope of his employment to drive the horse and wagon to the store in order to get goods ? The significant fact is, that he was the servant of Reems to peddle goods and to drive a horse and wagon for that purpose. Why was he driving on that day? Obviously in the discharge of his duty as such servant, which hound him to do so. Whether he had Reems’ goods in his wagon or was driving to get them, if his driving was in the discharge of the duty of his service, it was, in the eye of the law, the master’s driving, and for negligent injury the rule of respondeat superior applies.

We never apply this rule without a sense of its hardships on the master; but it has been settled on a broad balancing of reason and equities, and judiéis est dicere, non donare, legem.

III.

The charge of contributory negligence is not sustained by the evidence. Mrs. Shea was crossing Annunciation street at the corner of Calliope. She had a sun-bonnet on and was crossing diagonally from the upper side of Calliope to the lower. Hence, not only was her vision obstructed by her bonnet, but her back must have been partially turned towards up-town, the direction from which Rickert, with his wagon, was coming. The street-was clear, as far as appears, except for that wagon, which, at the time when she started across, was a considerable distance off. There was no reason for her to anticipate that, in crossing, under such circumstances, the wagon would be driven so rapidly as to reach her, or so carelessly as to run over her. It was, therefore, not contributory negligence on her part not to have continued her looic-out on the approaching wagon. Summers vs. Railroad, 34 Ann. 139.

On the other hand, the negligence of the driver was of the grossest character. According to his own account, he saw her and saw that she had on a sun-bonnet. It was broad day and there was ample room for him to have passed on either side of her. He was driving rapidly. He ran over her so carelessly and recklessly that, even after it was done, he was ignorant that the accident happened until called back by bystanders. His own account is a curious one: “On the morning that this supposed accident happened I was coming down leisurely Annunciation street, and when near the corner of Oalliope I saw some woman cross-mg with a sun-bonnet on. I kind of hollowed at her and she didn’t observe me, and she went on. I stopped and then pulled to my right by Walshe’s grocery store. I saw then that this woman had been lying down on the track of the Annunciation cars.” This is all he has to say on the subject, so that he seems to have been so negligent as to be ignorant whether the woman was standing up or lying down when lie ran over her. The testimony of by-standers convicts him of inexcusable negligence.

IV.

As to the quantum, of damages, a fractured thigh, six to eight weeks motionless confinement between sand-bags, with attendant bed-sores and sufferings, a short leg, liability to neuralgic troubles, aud other injuries indicated by the medical testimony, seem to us not excessively compensated by a verdict of one thousand dollars.

Judgment affirmed.


author: Poché, J.

text:
    No. 9194.
    Zuberbier & Behan vs. R. S. Morse et als.
    In a revocatory action tlie test of the jurisdiction of the Supreme Court is in the amount claimed of the original debtor, and not in the value of the property the sale of which is sought to be revoked.
    The judgment, if the action is maintained, is that the contract is avoided only as to its effect on the complaining creditor. As to third persons it remains in full force. Lobe & Bloom vs. Arent, 33 Ann. 1086. Affirmed.
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.
    A. B. Philips and Albert Voorhies for Plaintiffs and Appellants.

      A. C. Lewis and T. M. Gill for Defendants and Appellees.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellee urges that we have no jurisdiction over this case, because the matter in dispute does not exceed in amount the sum of two thousand dollars.

Plaintiffs brought this suit for judgment against S. W. Sawyer, in the sum of $1,491 77, and to that suit he joined a revocatory action against R. S. Morse, for the nullity of a sale of property, amounting to $45,000, made to Mm by Sawyer, on the ground that the sale was made in fraud of the latter’s creditors.

The allegations of the petition embrace matters which point both to the action “ en dédla/raiion de simulation,’’ hud to the revocatory action, but the nature of the relief which they ask unmistakably characterizes their suit as a revocatory action. This is conceded by their counsel, who treat the suit as a revocatory action throughout the whole discussion, in three briefs.

But they contend that as between plaintiffs and the defendant, Morse, the matter in dispute is the validity of his title to property amounting in value to $45,000, and that, therefore, this Court has jurisdiction, at least over that branch of the case which involves the interest of that defendant. Their proposition has no sanction in law, and finds no support in jurisprudence.

The effect of the judgment in a revocatory action does not absolutely affect the validity of the whole title of the vendee in the sale alleged to have been made in a fraud of the vendor’s creditors.

The effect of the judgment in such cases is defined by the textual provisions of our code where it treats of this subject. Art. 1977 reads: The judgment in this action, if maintained, shall be that the contract be avoided as to its effect on the complaining creditors, and that all the property or money taken from the original debtor’s estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff.”

It follows, therefore, that the utmost effect which can result to Morse from a judgment in favor of plaintiffs would be to subject the property which he has acquired of Sawyer, to the execution of the judgment obtained by them against their debtor, Sawyer, in the sum of $1,491 77 exclusive of interests and costs. His title to the property quoad, third persons would not be in the least affected by the judgment in favor of plaintiffs. And the latter could only seize as much of the property transferred to Morse as would be sufficient to satisfy their judgment.

The identical question of jurisdiction has already been before us, and was decided in the sense indicated by our present reasoning. Lobe & Bloom vs. Arent et al. 33 Ann. 1086.

In that case the amount of the judgment against the original debtor was less than $1000, the lower limit of our jurisdiction at that time, and the property subj ected to the revocatory action exceeded that amount in value. We held that the amount of the original moneyed demand against the debtor, and not the amount of the property transferred was the trae test of our jurisdiction, because the real issue between the plaintiff and the defendant in the revocatory action was the right of the former to enforce the execution of his judgment in a sum less than $1000 against property held* by the latter, and acquired from the former’s debtor.

This is practically the case in hand.

Appellants’ reliance on the case of the State ex rel Bloss vs. Judges, 33 Ann. 1351, cannot avail them. In that case the suit against the holder of the mortgage was an action “ en declaration de simulation," and the effect of the judgment on the mortgagee would have been the cancellation of his entire mortgage which was in a sum of $12,000. Hence we held that, although the claim of plaintiff against the original debtor did not exceed $1000, the amount in dispute, quoad the mortgagee, was within our jurisdiction.

We, therefore, conclude that we h^ve no jurisdiction over the present controversy. But we cannot dismiss this appeal, because we had jurisdiction at the time it was brought to this Court, in April, 1884, before the adoption of the constitutional amendment which changed the lower limit of our jurisdiction. Walmsley vs. Nicholls, 36 Ann., not yet reported.

An appellant cannot be punished by the dismissal of his appeal, because the jurisdiction of the tribunal to which lie had properly returned his appeal, is divest'ed by subsequent legislation.

On the face of the papers it appears that the jurisdiction belongs to the court of appeals.

It is, therefore, ordered that this appeal be stricken from our docket and that it bo transferred to the court of appeals for tire circuit of New Orleans. Costs to abide the final decision of the cause.


text:
    No. 9208.
    Lichtenstein Bros. & Co. vs. Gillett Brothers.
    'Where the right of plaintiffs to maintain an attachment against the property of the defend, ants has been put at issne hy an intervenor who claims possession of the property under seizure as a receiver appointed by the court of another State, and one of the defendants, a member of the commercial firm sued, confesses judgment for plaintiffs’ debt in behalf of his firm, which confession is questioned as to its effect, and the cause has been submitted after evidence introduced and argument heard, and been taken under advisement, the judge should not replace the case on the docket in the same condition 'as when submitted. There were issues to be determined and ho should have tried them.

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

      T. J. Semmes & Payne for Plaintiffs and Appellants.

      Gibson, Hale & Montgomery and B. Titche for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs attached a stock of merchandise alleged to belong to the defendants, non-residents of this State, found in the city of New Orleans.

E. A. Augier, a receiver appointed by t^e Fulton County Court of Georgia, in the course of insolvency proceedings in said court against the defendants, intervened in the suit, denied the right of the plaintiffs to proceed by attachment against the said Gillett Bros, and claimed by virtue of his receivership to be entitled to the possession of said property or the proceeds of the same.

One of the members of the firm of Gillett Bros., in the name of said firm, filed an answer acknowledging the correctness of plaintiffs’ demand and confessing judgment therefor.

A curator ad hoc was appointed to represent the defendants, but he does not appear to have been cited, though after the cause was submitted he filed an answer containing the general issue.

The plaintiffs answered the intervention of Augier, receiver, by denying Ms right go stand in judgment, and alleged that the goods attached had been removed to this city before his appointment, and had been seized and sold under this and other attachments before his intervention had been filed.

The following formal submission of the cause appears in the record:

“This case came up this day, * * * and after hearing the pleadings, evidence and counsel having been submitted, the court took the same under advisement, with leave to file testimony taken by consent” —the same being filed on the 13th of February.

On the 5th of March following, the judgment was rendered (quoting):

“For the reasons assigned in the written opinion of the court this day delivered and filed, it is ordered that this case be remanded to the docket, to be proceeded with according to law.”

From this judgment or order the plaintiffs, and Augier intervenor, have appealed.

Tliere was another intervention on the part of the Queen City Cigar Company, claiming a preference on a portion of the funds derived from the sale of the property attached, hut there was no appeal taken by this intervenor and no appearance in behalf of the intervention in this Court.

A reading of the above judgment shows that it was not a final judgment in the case. It decided no issue raised by the pleadings. It did not pretend to do so; but on the contrary the judge a quo declined to try or determine the cause and virtually, under the terms of the alleged judgment, set aside the order of submission and reinstated the case in the condition it was before submitted.

Under these circumstances this Court cannot undertake to try the case on its merits, for that would virtually bo exercising original jurisdiction. There is no motion to dismiss the appeal on the ground of the judgment or order in question, being merely interlocutory. The transcript, however, shows that there were distinct issues raised between the plaintiffs and the intervenor, Augier, by their resj>ective pleadings, calling for determination, even should we leave out of view' the formal answer filed by the plaintiffs to this intervention.

In regard to the effect to be given to the confession of judgment by one of the defendants, and whether this confession affected the firm of Grillett Bros. or the property attached, or even the member of the firm making the confession, personally, we cannot now determine; but it was a matter that should have been determined by the lower court.

There appears, as stated above, to have been an answer filed by the curator ad hoc after the order or judgment in question was signed, and though too late to be taken into consideration by the judge before rendering his order, yet in the event of another trial it may be regarded as creating an issue between plaintiffs and defendants. Our conclusion is to remand the ease which we find at issue.

It is, therefore, ordered, adjudged and decreed that the decree appealed from he annulled and set aside, and the cause be remanded with instructions to the judge of the lower court to try and determine the issues presented by the pleadings, the costs to abide the final determination of the case.


author: Manning, J.

text:
    No. 9164.
    G. A. Lanaux vs. Recorder of Mortgages et als.
    The object of the writ of mandamus in our practice is to prevent a denial of justice or to avert the consequence of a detective remedy. It must be issued when there is no ordinary legal relief and justice requires that a mode of redressing the wrong shall be found. It may be issued even where there are other means of relief, if the ordinary legal forms will produce such delay that the public good will suffer or the administration óf justice be hindered.

      This writ has become the ordinary legal relief for a party who seeks to obtain the erasure of mortgages upon his property.
    \Yhere the prooí' is that the mortgage has been paid actually or legally, the writ will be made peremptory, and the court will order the erasure even though the State is holder of the mortgage or a beneficiary of it.
    The fact that the U. S. Court has taken cognizance of the liquidation of an Association whose mortgages have perempted or been paid will not prevent the State Court from ordering the erasure of such mortgages upon sufficient proof administered contradictorily with all parties interested.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Chas. B. Claiborne for the Delator, Appellant.

      J. C. Bgan, Attorney General, ancl John XcBnery for the Recorder of Mortgages, Respondents, Appellees.

      Henry B. Kelly and Henry Denis on the same side.

      X. J. Cunningham, Attorney General, on Application for Rehearing.
   The original opinion and decree in this case were, on rehearing, set aside.

ON REHEARING-.

The opinion of the Court was delivered by

Manning, J.

The object of a mandamus in our practice is to prevent a denial of justice or to avert the consequence of a defective remedy. It must be issued when there is no ordinary legal relief and justice requires that a mode of redressing the wrong shall be found. It may be issued even when there are other means of relief, if the ordinary legal forms will produce such delay that the public good will suffer and the administration of justice be hindered. Code Prae. arts. 830-1.

This writ may be said to be the ordinary legal relief for a party wishing to obtain the erasure of mortgages upon his property. This Court said in Savage v. Holmes, 15 Ann. 334 that the daily practice was to use it for that purpose, and in that case compelled the erasure of a building contract where the builder had abandoned his partially finished work. A similar use of the writ was justified in State ex rel. Deblieux v. Recorder, 25 Ann. 61.

If this has become the ordinary legal form for this particular purpose, the objection" that it cannot be employed when relief can be had by the ordinary means falls, since judicial sanction of daily practice” has converted what was a means of averting the consequence of a defective remedy into a perfect and ordinary remedy of itself.

If this be not so, what is the ordinary legal relief for one whose property is apparently encumbered by mortgages ? Must he wait until he who holds the apparent mortgages sues to euforce them, and then plead prescription or payment or other ground of non-existence or extinction 7 In that case there would be such delay as to hinder the administration of justice, and thus he would come within the provision for the permissive use of the writ even where there are other means of relief.

Now in this caso the proof is that all the instalments have been paid except one, and that is only ninety dollars and lias been due since 1862. There is therefore nothing due and exigible, and we were incorrect in saying on the first hearing that the plaintiff did not appear to be in con-simiU easu with Lord. And as we then held that if he were in the same condition as was Lord the principle of that case would be effectual for his release, the ascertainment of that fact furnishes occasion for the application of the same remedy.

A condition precedent to the use of the writ for the purpose of compelling the erasure of mortgages is that all the parties in interest must be brought before the court. Sue. Hearing, Manning’s Unrep. Cas. 38.

The Attorney General excepted that the State cannot be made a party to any suit without her consent. If this were a suit against the State in any proper sense the objection would be good, but it is a proceeding to compel a ministerial officer to do what is alleged to be Ms manifest duty in a matter wherein it has been judicially declared the State has lost all interest where the proof is similar to that produced in this case. Besides, if the other branch of the exception be true, viz that her rights can be tested only in a plenary suit via ordinaria, the plaintiff would be powerless to bring such suit, and the mortgage would remain on his property uncancelled notwithstanding his right to its cancellation was apparent.

The point made that this court is without jurisdiction because Receivers have been appointed for the Consolidated Association by the U. S. Circuit Court is untenable when the object of the proceeding is to erase from the mortgage-book of the State an encumbrance created by her law and which the Circuit Court of the U. S. would have no authority to order.

We are thus constrained to take a view of this matter different to that we first expressed and must change our ruling thereon.

It is therefore ordered and adjudged that our former decree be set aside, that the judgment of the lower court is reversed, and that a mandamus issue as prayed at the respondent’s costs.

Fenner J. recuses himself.


text:
    No. 9305.
    The State of Louisiana Ex Rel. Mr. and Mrs. Walter Regan vs. Judge of the First City Court of New Orleans.
    In an application for a writ of certiorari, tlie record of tlie proceedings below makes ful proof of itself, and is conclusive if not assailed and proven to be incorroct or untrue.
    Tlie unsupported affidavit of tlie Telator, of facts and proceedings, when contradicted by-counter affidavits, and negatived by the record, cannot avail the applicant.
    PPLICATION for Certiorari.

      F. Michinard for the Relators.
    Respondent in propria persona.

   The opinion of the Court was delivered by

Poché, J.

Relators, who are husband and wife, complain that in a suit pending before the respondent, a final judgment was rendered against them, in their absence, and without service of notice of trial.

They stated that, although notice was served on them on the 10th ol November, 1884, informing them that the trial was fixed for the 13th of the same month, the case was called for trial on the 11th, and from that day continued to the 13th; and that on the 12th, one of the relators, Walter Regan, who had called at the court, was informed of that fact by the judge and by the clerk thereof, and that he was further informed by them, that no trial would take place before service of another notice of trial on the defendants.

The record of the case, which was sent up in obedience to our preliminary writ of certiorari, shows that notice of the trial for the 13th was duly served on the defendants, relators herein, on the 11th of November, and that on the 13th the cause was regularly tried, resulting-in the judgment rendered against the defendants.

The assertion that the case was called for trial on the 11th of November, and that on the next day, assurance was given by the judge and by his clerk to the relator, Walter Regan, that the case would not be called on the 13th or before additional notice would be served on the defendants, finds no support outside of the affidavit of that relator, and is flatly contradicted under oath by the judge and by his clerk.

The assertion is further and thoroughly negatived by the record itself 5 and no complaint is made by either relator of any untruth or omission in said record.

Under this state of facts we have no hesitation to conclude that no irregularity, illegality or injustice can be truthfully charged against the proceedings, and that this application is entirely devoid of any merit. We are compelled to earnestly discountenance all such applications.

It is, therefore, ordered that the preliminary writ herein issued be set aside,' and that the application for certiorari and prohibition be denied, at relators’ costs.


text:
    No. 9232.
    The State of Louisiana vs. Marius Victor.
    When a party is indicted for murder and convicted of manslaughter, the judgment should he arrested if the crime had not been denouuoed to a public officer having the power to direct a prosecution within one year previous to the finding of the grand jury, and the accused had not fied from justice. $Tor could proof bo offered of these causes o Í the suspension of prescription unless the same are averred in the indictment. The arrest of judgment in such a case^ does not debar another prosecution for manslaughter under a sufficient and proper indictment.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Hahn, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      R. G. Dugué for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, tried and convicted of manslaughter and sentenced to eight years imprisonment at hard labor and has appealed.

He presents several reasons why the sentence should be reversed, only one of which we deem it necessary to notice.

In Ms motion in arrest of judgment, among other grounds in support of it, the accused averred that the offense, of which he was convicted, was .prescribed.

The indictment charged that the crime was committed on the 8th of November, 1879, whilst the indictment itself was not found until the 3d of June, 1884.

Section 986 of Revised Statutes says: “No person shall be prosecuted for any offense wilful murder,’ etc., excepted, unless indictment for same be found within one year next after the offense shall have been made foioion to a public officer having the power to direct the investigation or prosecution.” With the proviso: Nothing in this section shall extend to any person absconding- or fleeing from justice.”

Manslaughter is not one of the excepted offenses and, therefore, unless the conditions existed suspensive of prescription, the prosecution for such crime was barred by .the statute. But the indictment contains no averment that the crime was not discovered and denounced to the proper officer within a year before the finding of the grand jury or that the prisoner had absconded or fled from justice, the conditions mentioned in the statute required to suspend prescription.

To admit-proof on the trial touching the existence of the facts necessary to a suspension of prescription it is essential that these facts must be averred in the indictment. State vs. Bilbo, 19 Ann. 76; State vs. Pierce, Ib. 90; State vs. Bryan, Ib. 435; And this is necessary even where the indictment charges murder only, and the jury convict of manslaughter. State vs. Foster, 7 Ann. 255; State vs. Freeman, 17 Ann. 69; State vs. Morrison, 31 Ann. 211.

It appears, however, that when the motion in arrest of judgment was on trial, evidence in relation to said facts were offered ahd admitted against the objections of tire defendant’s counsel, as we learn from bills of exception in the record.

It is clear that such testimony was not admissible at that stage of the proceedings, or in fact at any stage of the proceedings, in the absence of the required averments in the indictment; but it was particularly objectionable on the trial of a motion in arrest /or the reason that such motion rests and must be determined by the face of the record, and also for a more vital reason that the motion presented questions of fact pertaining to the merits of the cause, which could bo passed on alone by the jury. This point has been expressly decided in one of the cases cited above. State vs. Foster, 7 Ann. 255.

The evidence was, therefore, improperly admitted and the motion in arrest improperly overruled.

This conclusion, however, does not operate as a bar to a prosecution of the accused for manslaughter. He cannot be tried for murder, for he stands, by the effect of the verdict, acquitted of that charge, but following the precedents established in the case of State vs. Foster, 7 Ann. 255, and Same vs. Same, 8 Ann. 290, we shall, while annulling the verdict and sentence and arresting the judgment, do so without prejudice to a legal prosecution for the crime of manslaughter.

The principle upon which this and the previous rulings in the cases cited rest, is that, where a conviction is had upon an indictment upon the face of which the offense is prescribed, such indictment is insufficient and illegal in not containing the averments required to show a suspension of prescription, and the bill being thus defective it did not bar another prosecution for the same offense under a valid indictment ; and that such further prosecution on account of such insufficiency-in the first indictment would not be pntting the accused twice in jeopardy for the same offense.

It is, therefore, ordered, adjudged and decreed that the verdict against the prisoner be set aside, and the judgment and sentence arrested without prejudice to a legal prosecution for the crime of manslaughter.


text:
    No. 9243.
    The State of Louisiana vs. J. J. Cotten.
    A motion for a new trial on tlie ground of newly discovered evidence must be refused wlion the affidavit of the accused shows that the evidence, so far from being newly discovered, was known to him all the while. Such motion must be supported by other testimony in addition to the affidavit of the accused. His alone will nob suffice.
    When four days have elapsed between the conviction and the sentence and the defendant’s counsel complains that he wants more time to prepare a motion in arrest, he is without excuse and further delay was rightly refused.
    APPEAL from the Tweuty-third District Court, Parish of Iberville. Talbot, J.
    M. J. Cunningham, Attorney General, for the State, Appellee.

      Chas. O. Lauve for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

From a conviction of larceny and a sentence thereon to six months’ hard labour the defendant appeals. There are two bills;—

1. The first is to the refusal of a new trial that had been moved on the ground of newly discovered evidence.

The lower judge refused it because the defendant had had ample time and opportunity to have obtained the evidence. He had been at large on bond some time, and both of the witnesses whose evidence is said to he newly discovered are within easy reach of the process of the court. In fact one of them had been summoned by the defendant who willingly went to trial without even intimating that the absent witness was necessary to his defence or that his presence was desired.

Besides these reasons of the trial judge, it is manifest from the motion and affidavit that the wanted evidence was not newly discovered, but the whole of it was known to the defendant all the while. No effort was made to obtain the affidavits of these witnesses in support of the motion for a new trial. The affidavit of the defendant is its only support. It should have been corroborated by others and none other is usually so effectual as the affidavits of the witnesses whose testimony is said to be so important, and in the present instance they could readily have been obtained. But these affidavits would doubtless have disclosed, as does that of the defendant, that he knew of the evidence though his counsel did not. State v. Edwards, 34 Ann. 1012; State v. White, 35 Ann. 96.

2. When the judge was about to pass sentence, the defendant’s counsel asked that it be deferred to give him time to prepare a motion in arrest which was refused for the reason that the counsel had had ample time to prepare it, and the judge believed it was merely a pretext for delay.

On the matter of time the judge was certainly right. The conviction was on the 16th — the sentence not until the 20th. Four days is time enough to prepare the most elaborate motion.

Judgment affirmed.


text:
    No. 9257.
    The State ex rel. Z. E. Hearsey vs. E. B. Talbot, Judge Twenty-third Judicial District.
    A writ of mandamus will issue to compel the judge of the lower court to grant an appeal 'from a judgment rendered by him homologating the account of a receiver appointed under his authority to receive and account for the proceeds of the sale of succession property, preparatory to a judicial partition between the heirs of the succession.
    Such a judgment, which determines the responsibility of the receiver, and fixes the basis of the partition, could not be reviewed in the partition proceedings, and would, if erroneous, work irreparable injury. It is, therefore, appealable.
    APPLICATION for Mandamus.

      K. A. Cross for the Relatrix.
    Respondent in propria persona.

   The opinion of the Court was delivered by

Poché, J.

This is an application for a mandamus against the judge of the Twenty-third Judicial District, sitting in the place of the judge of the Seventeenth District Court of the Parish of East Baton Rouge-It is predicated on the following facts and judicial proceedings:

At the instance of relator, a sale of the property depending upon the succession of her father, Gabriel Gusman, had been made under the order of the court, with a view to a partition of the same among the heirs of the deceased; and a receiver had been appointed and qualified to take charge of the property, and to receive the proceeds of the sale pending the proceedings for partition.

On a rule taken by some of the heirs, the receiver presented his account to the court, with a prayer for the homologation thereof and fol-láis discharge.

The account was opposed by the relator herein, who urged, among other objections, that the account did not embrace all the property of the succession, and that the receiver claimed more credits than he was entitled to. Judgment was rendered, adversely to relator, homologat-ing the receiver’s account as presented, andU-eferring the parties to a notary for final partition. Relator then moved for an appeal from said judgment, which was refused by the judge. Hence this application for a mandamus to compel him to grant the order of appeal prayed for.

Although the judge has formally accepted service of our alternative writ, he has not filed his answer, or filed a brief, or favored us with his views in any shape in justification of his course in the premises.

We gather from the record that the judge rested his refusal of relator’s prayer for an appeal on the ground that the judgment complained of is u a mere interlocutory order and not ajjpealable.” The legal effect of the judgment is to fix and determine the active mass of the succession as a preparatory step to the final partition and distribution of the same among the heirs. The amount shown by the judgment to remain in the hands of the receiver to the credit of the succession, will be the basis on which the notary will proceed to effect the partition under the. authority of the court.

His proceedings and his acts maybe the subject of future opposition or contention between the heirs, and may be the subject of future investigation and adjudication by the court. But these contentions and probable adjudications cannot involve or affect the issue of the correctness of the receiver’s account, which has already been judicially tested and approved.

The receiver, as such, has no connection with, and is not a party to, the proceedings before the notary for the final partition, and therefore the errors of his account will not and cannot be the subject of judicial inquiry in the partition proceedings. The judgment complained of is, therefore, final as to the receiver’s accounting, and the errors which may exist in his account would thus operate an irreparable injury to this relator. Hence, the judgment which was signed in open court and which deals with an account exceeding in amount twenty thousand dollars, is clearly appealable and falls within the jurisdiction of this Court.

In the case of the State ex rel. Ikerd vs. Judge, 35 Ann. 212, we compelled an appeal from a decree dismissing part of a plaintiff’s petition and part of the prayer thereof, on the ground- that the decree would work irreparable injury to the complainant.

The rule should apply with much greater force to a case in which the judgment complained of judicially settles and determines the responsibility of a fiduciary agent for large sums entrusted to his care and custody, and fixes the basis of the partition of such funds among all the parties in interest.

The judge manifestly erred in refusing the appeal prajmd for in this matter.

It is therefore ordered that the alternative writ of mandamus issued herein be made peremptory; and the judge a quo is hereby commanded to grant a devolutive appeal to relator from the judgment rendered and signed by him on October 21, 1884, homologating the account of John McGrath, receiver of the proceeds realized from the sale of the property depending on the succession of Gabriel Gusman; and it is finally ordered that he be condemned to pay the costs of these proceedings.


author: Bermudez, C. J.

text:
    No. 7567.

    White, Richards & Co. et al. vs. Waggaman, Sheriff, et als.
    A sheriff cannot he held responsible for refusing to collect the vents of real property under seizure, where the third party in possession claims to he the owner under a recorded title, where he is refused an indemnity bond and whero it is decided that such third party was really the legal owner of the property. He fulfilled his duty by registering the seizure. By acting as required, he might have exposed himself to damages,
    PPEAL from the Fourth District Court for the Parish of Orleans. 1A Houston, J.

       This case was decided in April, 1883.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to hold a sheriff and his sureties liable for rents not collected by the former from a property under seizure by him.

The defense is, that the sheriff did not collect the rents besause ho was notified by the wife of the alleged owner of the property, one of the defendants in the suit, that title thereto was in her, under a duly recorded act; because he was not furnished an indemnity bond, which he had called for; because by proceeding, as requested, he would have exposed himself to damages; because he did all the law demanded of him and followed the instructions of counsel of plaintiffs.

Prom a judgment in favor of the defendants, the plaintiffs have apxiealed.

The evidence establishes the correctness of the main facts urged in defense. The property in question was subsequently recognized by this Court as belonging to Mrs. Jackson. 33 A. 160.

The sheriff did his duty by registering the seizure in the mortgage office. He was justified in declining to seize the rents and compel payment of the same by a party in possession, who was the real owner of it. He is not responsible.

This case cannot be distinguished from that of the same plaintiffs against Handy, sheriff, to whom the same writs had been transmitted by Waggaman, and in which it was sought by them for the same reason to fasten a liability on him for his failure to collect the rents of this identical property. N. R. — ; O.B. 56, fo. 388. See 34 A. 862, Coste vs. Handy.

Judgment affirmed.

Fenner, J., recused, as of counsel.


text:
    No. 8779.
    Daniel Moriarty vs. Andrew J. Downey.
   This case presents questions of fact only.


text:
    No. 8974.
    The State of Louisiana vs. Eliza Riddle.
   In this case, no defense is made by bill of exception or motion or any point within the province of the jurisdiction of the Supreme Court. The j udgment is affirmed.


text:
    No. 8899.
    Elizabeth Michero, wife, etc., et al. vs. George A. B. Hays.
   Tax sale annulled. Assessment in name of one deceased Taxes paid by purchaser recovered by him.


text:
    No. 8672.
    Domingo Azcuenaga vs. Murphy & Sisa.
   This oase presents only questions of fact.


text:
    No. 4792.
    In the Matter of Board of Administrators praying for recognition of Mortgage and recovery of Assessments in Fourth Drainage District. Appeal of Crescent City Live Stock Landing and Slaughterhouse Company.
   This case is identical with that of same title reported at page 97 of 34th Annual.


text:
    No. 9018.
    Ophelia E. Schiller, wife, etc., vs. New Orleans City Railroad Company.
   This oase is identical with No. 9016, reported.


text:
    No. 8732.
    William Mattle vs. New Orleans City Railroad Company et al.

   This case presents only questions of fact.


text:
    No. 8032.
    Mrs. Ann McConnell vs. John Pasley.
   This ease presents only questions of fact.


text:
    No. 9088.
    The State ex rel. Troisville Sykes vs. Houston, judge, etc.
   Tli© amount fixed for suspensive appeal in this case, not excessive. Mandamus and prohibition refused.


text:
    No. 8999.
    Jurey & Gillis vs. New Orleans Insurance Association.
   This case presents only questions of fact.


text:
    No. 9048.
    City of New Orleans vs. Miller, Finney & Miller.
   The professional income of a lawyer is not taxable under the present Constitution.


text:
    No. 8846.
    J. S. Ikerd vs. Sheriff et al.

   Case similar to No. 8844, reported.


text:
    No. 9109.
    Eli Tullis & Co. vs. P. J. Kennedy.
   This case presents questions of fact only.


text:
    No. 8834.
    S. W. Davis vs. Joseph Kuber.
   This case presents questions of fact only.


text:
    No. 9011.
    C. B. Hauk vs. Nicholson & Co.
   In a suit for damages on account of libel, plaintiff cannot recover when defendant was not actuated by malice and the main facts of tuo charge were substantially true.


text:
    No. 8908.
    Mississippi, Terre-aux-Bœufs and Lake Borgne Railroad Company vs. Marx Bonzano.
   This case is identical with that of same plaintiff vs. L. H. Wooton, No. 8909, reported.


text:
    No. 8603.
    City of New Orleans vs. Martin Wolf.
   Constitutionality and legality of City Ordinance prohibiting private markets within six squares of any public market, and punishing violations thereof, have been settled by this Court, 31 Ann. 544.


text:
    No. 9061.
    The State ex rel. Emile Gauche vs. Board of Assessors.
   Reduction of assessment ordered by mandamus.


text:
    No. 8387.
    J. P. Macheca vs. Hardy St. Martin et al.

   This case presents only questions of fact.


text:
    No. 9046.
    D. Hughes & Co. vs. N. Frichon et als.

   This case presents only questions of fact.


text:
    No. 9023.
    Joseph Codifer vs. L. Schwartz et al.

   Only actual damages can be recovered In case of sequestration without malice.


text:
    No. 9169.
    The State of Louisiana vs. Lottie Hoffman et als.

   The right of the Assistant District Attorney in the Parish of Orleans to institute criminal proceedings, affirmed.


text:
    No. 7546.
    City of New Orleans vs. H. W. Benjamin et als.

   This caso is identical with that of the same plaintiff vs. H. I. Seixas et als.. reported.


text:
    No. 9120.
    W. D. Brown vs. W. B. Harelson.
   A sheriff’s sale of mortgaged property with the pact de non alienando, divests the title of a third possessor, though he was no party to the proceedings.


text:
    No. 9136.
    M. M. Ada Lane and Husband vs. R. S. Cameron.
   The DistrictCourt should have granted a new trial, as asked, on the ground of new evidence discovered. Case remanded.


text:
    No. 9226.
    The State ex rel. Charles Brown vs. Judge of Twenty-sixth District Court, etc.
   A mandamus does not lie to compel a District Judge to grant an injunction at the instance of a citizen against a police jury, to prevent the latter from changing the building in which the court is held.


text:
    No. 9012.
    Board of Administrators praying for Recognition of Mortgage and recovery of assessments in Fourth Draining District. John Crowley & Sons, Plaintiffs and Appellants.
   Judgments which arc «absolute nullities, cannot be revived.


text:
    No. 9087.
    Aloysius Werner et al. vs. Succession of A. Werner.
   Children of first marriage entitled to the §1000 homestead under the circumstances of the case.


text:
    No. 8706.
    Thomas A. Madden vs. Henry T. Lawler.
   This case presents only questions of fact.


text:
    No. 8987.
    No. 8409.
    J. W. Demarest vs. W. J. Beirne.
   A devolutive appeal cannot be dismissed on the ground that appellant has not complied with an amended order of appeal to furnish au additional bond, whilst a suspensive appeal from such amended order is pending.

Right of the widow in community to execute a moitgage on any specific property of the community whilst the succession of her husband is under administration. The question considered under the peculiar circumstances of this case.


text:
    No. 9017.
    Succession of Edward Burke.
   This case prosents only questions of fact.


text:
    No. 8920.
    Joseph C. Howard et al. vs. John L. Sterry.
   This case presents only questions of fact.


text:
    No. 9013.
    J. H. Oglesby and J. Cassard vs. New Orleans Gas Light Company.
   A judgment conclusively affects only those who are parties thereto.

The plea of res judicata cannot prevail where the demand is not the same and the judgment is different, though the parties be identically the same.


text:
    No. 9014.
    George E. Sears et al. vs. Same Defendant.
   This case is similar to the one just preceding.


text:
    No. 9178.
    The State of Louisiana vs. Harry J. Elsie.
   Where the transcript contains no motion to quash, no bill of excepción, no motion in arrest and no assignment of errors, and the proceedings appear to have been regularly conducted, the judgment will' not be disturbed in a criminal case.


text:
    No. 8921.
    M. Scooler vs. J. H. French et als.

   Claims for damages clearly asserted to give the Supreme Court jurisdiction. Appeal dismissed.


text:
    No. 9188.
    The State of Louisiana vs. Charles Kirby.
   Right of Assistant District Attorney in the Parish of Orleans to institute criminal proceedings, affirmed.


text:
    No. 9095.
    Simon Z. Darrodes et al. vs. Bridget Murphy and Husband.
   The purchaser at a tax sale, which is annulled, is entitled to recover the portion of the price of adjudication which went to the payment of taxes on the property.


text:
    No. 9186.
    McLellan Dock Company vs. Union Sanitary Excavating Company.
   This case presents only questions of fact.


text:
    No. 9079.
    Succession of Joseph Leichliter.
   A succession sale, though voidable, should not be set aside when most of the heirs have ratified it and the rest of the heirs have expressed their willingness 'to ratify it also. Thepurchaser should be allowed to retain the portion of the price going to the heirs who have not yet ratified the sale.


text:
    No. 9240.
    The State ex rel. Cazalot vs. Judge First City Court, etc.
   Certiorari and prohibition refused because complaint against defendant judge is only that his judgment is contrary to the law and evidence.


text:
    No. 1218.
    Frank G. Ulrich vs. C. C. Duson, Sheriff, et al.

   A judgment creditor, who resorts to a direct action to annul an outstanding title made by his debtor to a third person, cannot disregard such title during the pendency of his action and proceed by seizure and sale of tho property, A judgment perpetuating an injunction until the determination of the direct action of nuliityAwill be maintained, although the judgment of nullity has beeu pronounced in the direct action.


text:
    No. 9281.
    The State of Louisiana vs. Thomas Sweeney.
    This Court has no jurisdiction to review facts submitted to a jury in a criminal case, «o as to determine-of the correctness or incorrectness of their verdict.
    Applications for a new trial, on the ground of newly discovered evidence ought not only to set forth the proper averments, hut should also ho verified by oath.
    Objections to the charge of the trial judge to the jury, unless made at the time when the same is given and unless properly presented by bill of exceptions, will not be considered on appeal.
    A PPEAL from the Criminal District Court; for tho Parish of Orleans. .LJL Balcer, J.

      M. J. Cunnimjhmi, Attorney General, for the State, Appellee,

      Henry C. Castellanos and A. Gastinel, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for murder and convicted of manslaughter. Prom the verdict and judgment thereon sentencing him to fifteen years at hard labor, he appeals to this Court.

The record contains one bill of exception, taken to the refusal cf the District Judge to grant a new trial.

The bill sets forth no right and no grievance. It does not even aver that the motion for a new trial was well founded and that the judge erred in overruling it.

The motion, which is attached to the bill, is based on six grounds, four of which attack the verdict of the jury and relate to matters of fact, which were exclusively within the province of that body, with whose action this Court has no power to iuterlere.

If it were true, as charged, that the jury disregarded the testimony of unimpeaclied and disinterested witnesses and the charge of the court, and did not give the defendant the benefit of any reasonable doubt, the defendant, on satisfying the District Judge, would have been allowed a new trial. It seems, on the contrary, that although his complaint was urged by able counsel, he failed to convince the judge that the jury had not done him justice.

The District Judge could have granted anew trial, if the verdict was contrary to the evidence, for he lias authority to consider the verdict aud review the facts, to test its correctness. Although he cannot comment upon the facts before the jury, prior to verdict, still lie has the right after verdict to decide whether the facts proved, justified or not the verdict; and, accordingly, to refuse or grant a new trial. Where he refuses such motion, this Court, in the exercise of its appellate jurisdiction, is powerless to grant any relief from the effect of such ruling, even if the same were erroneous.

The constitutional prohibition lies to the exercise of the jurisdiction of this Court to find questions of fact which were submitted to and found by the jury. As this Court was never designed to pass upon questions of fact, as a jury tis called upon to do, in other words, to pass upon the guilt or innocouco of the accused, it cannot, under any circumstances, review tlie veidict of a jury touching such guilt or innocence. This Court has already so held at least twice—32 Ann. 844; 33 Ann. 1016.

To say that the District Judge erred in overruling the motion for a new trial, would actually he sitting on the case as the jury has dono, taking cognizance of the facts proved on the trial—acquit or convict— which cannot be doue.

The fifth ground is that, since the trial, the defendant has been placed in possession of evidence, represented as material, and that had the same gone to the jury, the verdict which they returned would not have been brought in.

Tlie motion is not sworn to in this particular. Tlie averment is not even made, that the evidence could not have been procured by due diligence for the trial: that the witness named is within the reach of the court and, if heard, would swear to the fact stated in the motion, as newly discovered. Specific averments, verified by oath, were indispensable.

The sixth and last ground is, that the District Judge erred in charging the jury as he did.

If the charge be, as claimed, insufficient or erroneous, it should have been objected to, when given. This the accused did not do. It seems to have been complained, of for the first time, only in the motion for a new trial, which was too late.

Judgment affirmed.


text:
    No. 9199.
    F. A. Lambert vs. Pierre Saloy.
    Tn a pursuit, by numerous creditors of their common debtor’s property, tbe creditor, who baa recourse to a revocatory action in order to annul a fraudulent transfer of his property by tbe debtor, will obtain no preference over the other creditors, by reason ofliis revocatory action, if it appears from tbe evidence that the attacked transaction was not only fraudulent but also simulated and unreal. In such a case tlie creditors who ignored tlie pretended transfer and who proceeded by attachment ysúll have priority.
    A’credilov’s claim for vendor’s privilege will not be recognized if he has allowed the goods on which he claims tbe same to be sold confusedly with a mass of other things belonging to bis purchaser, and if be tails to identify bis goods.
    A PPEAL from the Civil District Court for the Parish of Orleans. ./A Houston. J.

    Singleton, Browne and Choate for Plaintiff' and Appellee.

      Chas. Louque on the same side.
    F. D. Cretien, A. Voorhies, B. G. Harris and A. Sham contra.
   The opinion of the Court was delivered by

Poché, J.

This controversy involves the question of a proper distribution of the funds realized from the sale of the defendant Saloy’s property, consisting of a piece of immovable property and of a stock of goods, which had been attached by several of his creditors, and which was sold by tbe sheriff in execution of numerous judgments rendered against said defendant.

The main contention hinges on the claim of the appellant Firmin Pintat who urges a right of priority over the proceeds by reason of a revocatory action which he had instituted for the nullity of a fraudulent transfer made by the defendant of all his property to his brother-in-law, a few days before the first legal proceedings were instituted against him.

Pintat’s action resulted in a judgment annulling the sale, on the ground of its fraudulent character; but, in the meantime, the other creditors of Saloy, treating his pretended transaction to his brother-in-law as a bald simulation and as an absolute nullity, had proceeded against the property, some by attachment and others by sequestration.

The pivotal question in that branch of the case involves a decision of the real character of the transaction between the defendant, Saloy, and his brother-in-law.

The appellant, Pintat, contends that tire transaction was a real but a fraudulent sale, by the effect of which the property went out of the possession of the debtor, and beyond the reach of his creditors, until it was returned to his ownership, and became subject to his creditors action, under the effect of the judgment rendered on his revocatory action. Hence, his contention for payment by preference over all the other creditors.

Appellees, on the other hand, contend that the transaction between the debtor and his pretended vendee was a mere simulation and conveyed no title to the pretended purchaser, and that, therefore, the attaching creditors should be paid, as the District Judge decided, in the order of their respective attachments.

This contention finds ample support in the evidence which shows to our entire satisfaction, that the transaction of September 23, 1883, between Saloy and his brother-in-law, was a mere scheme to screen the dishonest debtor’s property from the pursuit of his creditors, and that neithfer party ever intended that the pretended sale should transfer any part of the property to the ownership or possession and control of the pretended purchaser. We are thoroughly satisfied that there was no valid consideration for the pretended sale, and that the ostensible purchaser never considered himself as the owner of any portion of the property which he himself values at $6,000, and which he pretends to have purchased for $1,000, represented by a promissory note of Saloy, whicli he held. The District Judge correctly held the transaction as an absolute nullity, the fraudulent character of which can only be equaled by the boldness of the conception.

It is, therefore, clear that, as the debtor had not been divested of his ownership, or of his possession of the property, no effect could follow the revocatory action of appellant, and that he was entitled to no preference in consequence thereof. The property was, therefore, duly and legally affected by the other creditor’s attachments, in the order of their dates, and appellant’s only privilege is derived from the attachment which he himself sned out after the property had been formally surrendered to Saloy’s creditors by the pretended purchaser, who discovered that it was not safe for him to carry further the weight of Saloy’s iniquitous and fraudulent designs.

We find no error in the judgment appealed from on the score of the preference which is allowed to the suing creditors over Pintat, the appellant.

But his complaint of the erroneous recognition of a vendor’s privilege in favor of John Jacob is well founded. Under our analysis of the evidence it is clear that Jacob utterly failed to legally identify the goods on which he claimed a vendor’s privilege, which he had sold to Saloy, and which were sold by the sheriff confusedly with a mass of other things belonging to Saloy. (C. C. 3228). As Jacob, who intervened for the purpoee of enforcing his alleged vendor’s privilege, had sued out no attaciiment or other conservatory writ, he is an ordinary judgment creditor, and must yield to Pintat under the effect of the latter’s attachment.

The judgment appealed from is therefore amended in so far as it gives any preference to John Jacob over Firmin Pintat; the claim of said Jacob is hereby reduced to the rank of an ordinary judgment, to he paid after the claim of the appellant, Pintat, in case there he sufficient funds for the payment of the same. And it is ordered that said judgment as thus amended he affirmed, costs of appeal to be paid by John Jacob.

Rehearing refused.


text:
    No. 9271.
    The State of Louisiana vs. Philip Reilly.
    Where a party convicted of stealing certain movable property of a railroad company, appeals from tbe sentence imposed therefor, ana bases his appeal solely op the ground that the corporate existence of such company was not proved on the trial, though averred in tbe indictment, it amounts in effect to a contention that he was convicted on insufficient evidence, and in the absence of a bill of exception taken on the trial with‘respect to said alleged omission, or of any charge asked of the judge touching tbe effect of said omission, this Court is without power to inquire into this matter of fact, and to consider evidence on the point where taken on a^motion for a new trial.

      APPEAL from the Criminal District Court for the Parish of Orleans. Balear, J.

      M. J. Cunningham ancl Lionel Adams, for tlio State, Appellee.

      Wm. JR. Whittalcer, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of stealing- a caddy of tea from the Texas and Pacific Railway Company and sentenced to one year’s imprisonment at hard labor, and appeals.

His complaint- is that no proof was made on the trial of the existence of such a corporation; or in other words we are asked to relieve him because he was convicted, as ho alleged, on insufficient evidence.

Considering that our jurisdiction does not extend to questions of fact in criminal cases, it is difficult to perceive how we can determine the issue thus presented.

Upon the trial of the case no question was raised as to the admissibility or sufficiency of the evidence on this point. It was only in a motion for a new trial that the alleged omissions was first urged and sought to be established.

In order to give this matter a proper judicial consideration we would first have to address ourselves to a question of fact, that is whether there was any proof upon the trial touching the existence of this corporation, and if from an examination of the evidence we found that there was no evidence or insufficient evidence on this point, then we would be in a position to determine the next question—whether the absence or insufficiency of this proof invalidated the verdict.

We are satisfied that under the constitutional restrictions we cannot go into this inquiry with respect to the fact in question with the record as it now presents the matter at issue. State vs. Polite, 33 Ann. 1016.

Nor do we see how the legal question which we are asked to determine can be properly considered by us in the absence of any proceeding or motion during the trial to so shape the matter as to make it present but a question of law for the determination of this Court.

This we conceive could only have been done by asking the trial judge, to instruct the jury that, unless the, existence of the alleged corporation in which the' ownership of the goods was laid was proved, the jury must acquit. Had such instructions been asked and refused, and a bill of exceptions taken to such refusal, a legal question would have been properly before us for decision.

We have no power to go into an examination of the evidence to arrive at the fact upon which this question of law purports to be founded. And under the circumstances we are powerless to afford the relief asked.

Judgment affirmed.