text:
    No. 12,437.
    State ex rel. Joseph L. Courtney, Praying for Habeas Corpus.
    The District Court had jurisdiction over the case. This court, upon an application for a writ of habeas corpus, declined to oust the District Court of jurisdiction.
    The court is without authority in these proceedings to determine whether the jury was discharged with cause sufficient, or without cause. The law presumes that there was sufficient cause until the contrary appears. The writ of habeas corpus is not the proper remedy to bring up the questions involved for review. It was within the power and duty of the District Court to discharge the jury for gross irregularities which would have vitiated the verdict. The irregularities charged can not be reviewed on habeas corpus. For the purpose of discharging the applicant, the court will not on habeas corpus consider the sufficiency of facts relied on as evidencing former jeopardy.
    This court may inquire, under a writ of habeas corpus, into the jurisdiction of the court over the one condemned, but cannot correct errors in proceedings and vacate an order under which the accused is held for trial. *
    In a ease presenting similar issues, this court discharged the rule nisi and denied the application. 45 An. 816; Church on Habeas Corpus, Sec. 254; 60 H. Y. Court of Appeals, 570.
    Our statutes have not enlarged the functions of the writ as interpreted under the common law. The assignment of errors does not add to the functions of the writ of habeas corpus.

      Pujo & Moss and Edward L. Wells for Petitioner.

      M. J. Cunningham, Attorney General, and A. B. Mitchell, District-Attorney, for Respondents.
    Argued and submitted March 8, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Breaux, J.

The relator being in confinement in the jail of the parish of Calcasieu applied for a writ of habeas corpus, alleging that his imprisonment was without authority of law.

An order nisi was issued upon the petition in the usual form.

The trial judge in his answer controverts the grounds upon which the relator claims to have been placed in jeopardy.

The prominent facts are that a jury had been empaneled, the evidence had been heard when the court adjourned on Saturday night to the following Tuesday. The two intervening days were dies non. A copy of the minutes shows that on Tuesday, after the jury had returned into court, by order of the court they were discharged “on account of gross irregularities on the part of the jurors and the officers in charge, pending the sequestration, brought officially to the attention of the court by the officers thereof.”

It also appears of record that defendant’s counsel objected to the discharge of the jury and denied that there were any irregularities.

The charge against the accused, for which he was being tried when the order was issued, was murder. He was remanded to jail.

It is alleged by the defendant that the order of the judge recommitting him to jail was illegal, and he assigns as reason that the record fails to prove that any evidence was taken by the court from which the fact was adjudged that it became necessary to discharge( the jury.

The sheriff, in compliance with the order nisi issued by this court,fstates that he was requested by the relator to release him from further custody; that in obedience to the order of the trial judge be refused.

The trial judge in his answer disagreed with counsel for defendant in regard to certain facts alleged by them. It does not appear of record that the defendant applied to the District Court to be released, on the grounds urged on the application for the writ of habeas corpus.

Before this court, on behalf of the State, it is urged that habeas corpus is not defendant’s remedy.

A similar question was before us for our determination in the case of State ex rel. Emma Williams vs. Remy Klock, 45 An. 816, in which case we decided not to discharge a prisoner on habeas corpus (while an indictment is pending), on the ground of autrefois convict and autrefois acquit. That decision was carefully discussed by us at the time it was rendered. Notwithstanding, we will not rest our decree upon that decision alone. The ground, in our view, is amply supported by authority and the texts of writers. We have before us the second edition of the work of Mr. Church on Habeas Corpus, from which we quote in extenso upon this point, as it has a direct bearing upon the issue here involved:

“In a late California case, the petitioner for a writ of habeas corpus had been convicted for killing one Madden. On appeal a second trial was ordered, and after both the prosecution and defence had introduced their evidence, the District Attorney moved the court that the jury be discharged from the further consideration of the case, on the ground that it appeared from the evidence that an offence of a higher nature than that charged in the indictment had been committed. The indictment, as it then stood, was for manslaughter. The court granted the motion, and made an order that the defendant be committed to answer any indictment which might be found against him for murder. On habeas corpus, the Chief Justice of the Supreme Court said: ‘ The order was made by the District Court, the judge of which court is a magistrate vested with authority to hold accused persons to answer — and was entered aftor hearing the" evidence touching the alleged killing of Madden by the prisoner. Whether the order was irregularly entered, was erroneous, or what defence or advantage it may possibly afford the prisoner, should he be again put upon his trial for the killing of Madden, are questions which it is not the office of the writ of habeas corpus to present for our consideration.’ ” See. 238.

The facts and the law involved in the cited case are quite similar to the fact and law in the case before us for our determination. We fully agree with the doctrine of the cited case.

In another section the text writer announces: “ Neither will once in jeopardy be reviewed or inquired into on a habeas corpus. If pleaded and disregarded, it is an error to be corrected by an appeal ” Sec. 253. .

In the note on the same page we read: Where there has been a legal jeopardy it is equivalent to a verdict of acquittal, and the proper course for the prisoner to pursue is to move in the trial court for his discharge, as he is entitled to it. Habeas corpus is not the proper remedy,” citing a number of decisions.

The text writer from whose work we have quoted refers to a Michigan case involving the foregoing principles, also to an Indiana case, Sec. 254; and adds that no authority can be found in any way countenancing a contrary doctrine. Sec. ib. (Italics ours.)

The court had the authority to discharge the jury for gross irregularities which would have affected and vitiated the verdict. We refer only to such irregularity as might disqualify jurors for the proper discharge of their duty.

The correctness or incorrectness of the order depends upon the existence of certain facts, upon which the lower court has passed. To correct the ruling habeas corpus is not available. The facts are not before us which would enable us to determine whether the jury was discharged without cause, neither was the method followedby the trial judge in the matter of ascertaining these facts before us in proper form for our review of the questions involved.

Great prominence is given to the fact alleged on the part of the defence, that counsel although present in court were not given an opportunity to be heard, or to cross-question witneses to the irregularity.

This statement as made has met with denial on the part of the respondent.

Be it as it may, in case of the discharge of a jury, in absence of defendant, a much stronger case for defendant than the one before us, it was advanced as correct and as supported by several cited cases that “ conceding that the court erred in discharging the jury, and that the alleged error was cognizable in a court of review, it could not be reviewed without the record in the cause was properly before the court of review in such a way “as to give it a revisory power under its appellate jurisdiction.” But such an error “is a mere irregularity and should not be reviewed under this writ. It does not affect the question of jurisdiction, and where a court has jurisdiction it is within its power and authority, and is clearly its duty to entertain, hear and determine every question that may possibly or legitimately arise during the progress of the trial to final judgment of conviction or acquittal. The fact, therefore, if it be one, that the court has improperly discharged the jury in the enforced absence of the prisoner does not dispossess the court of its jurisdiction over the cause.” Sec. 254.

The fact, even if it be as urged by defendant, can not be invoked by habeas corpus, in the absence of a complete record in the cause.

From a well reasoned case we quote: “ If the judgment is merely erroneous, the court having given a wrong judgment when it had jurisdiction, the party aggrieved can only have relief by writ of error or other process of review. He can not be relieved summarily by habeas corpus.” People ex rel. Tweed vs. Liscomb, 60 N. Y. (Court of Appeals) 570.

There is nothing as we read the article of the Constitution which detracts from the force of the authorities we have cited. The provisions of the article upon the subject are that this court shall have power to issue writs of habeas corpus at the instance of all persons in actual custody in cases where it may have appellate jurisdiction. These provisions do not add to the common law remedy by habeas corpus. The extent of the application of the writ is not enlarged. The weight of decisions in other jurisdictions regarding the relief it (habeas corpus) offers, is not lessened by our Constitution or by our statutory enactment.

The Code of Practice of this State adopts, in effect at least (and •does not enlarge), in criminal cases, the functions of the most celebrated Writ in the English law and the constitutional writ in this country. 2 Kent, 23; 3 Cooley’s Black. 129. Tn adopting the substance of the habeas corpus act there is. nothing in the language of the Art. 822 of the Code of Practice denoting that it was ever designed to trench upon the functions of other writs or upon jurisdiction on appeal.

The “indictment creates a presumption of guilt for all purposes except the trial before the petit jury.” Church on Rabeas Corpusf p. 440 (note).

While under indictment an imprisoned accused is deprived of his liberty under due process of law.

In the case before us the accused is held according to the law of the land.

The discharge of an accused after the evidence has been closed before verdict without necessity operates an acquittal. .

On the other hand, the discharge of a jury, rendered necessary for the purpose of justice, does not operate an acquittal.

We do not think we are authorized on this application for habeas corpus to vacate the order of the District Judge under which the accused was imprisoned.

It is therefore ordered, adjudged and decreed that the rule nisi which issued in the case be discharged and the application for writ of habeas corpus denied.


source: Caselaw Access Project

author: Nicholas, C. J.

license: Public Domain

text:
    No. 12,371.
    E. C. Drew vs. His Creditors. Slayden Kirksey Woolen Mills et als., Opponents.
    The failure of a party applying for a respite to deposit in the office of the clerk of the court of his domicile, to whom he presents his petition for calling his creditors, a true and exact schedule sworn to by him of all his immovable as well as his debts, warrants the court in rejecting the application. Phelps vs. His Creditors, 36 An. 909.
    Where a respite has been refused by the court on the ground of defects in the proceedings the cession of property does not follow under the terms of the Code, but the relief sought by applicant is simply denied, and the ease terminates. Id.

    A PPEAL from the Second Judicial District Coart for the Parish of Bienville. Watkins, J.

      J. C. Theus for Plaintiff, Appellant.

      Dorman & Dorman, C. A. Reynolds, and W. U. Richardson for Opponents, Appellees.
    Submitted on briefs January 23, 1897.
    Opinion handed down March 1, 1897.
    Statement of the Case.
    E. C. Drew presented to the District Court for Bienville parish a petition to which was annexed a sworn list of his assets and liabilities, with names of his creditors, praying that a meeting of his creditors be called for a day fixed, and that after due proceedings there be judgment granting him a respite for one, two and three years from date. Upon this petition an order was granted for a meeting of creditors to be held on the 28th of February, 1896, before the clerk of the District Court, ex-officio notary public. The clerk was directed to give all legal notices. J. A. Dorman was appointed attorney for absent creditors, and judicial proceedings against the person and property of petitioner were ordered to be stayed.
    The meeting of creditors ordered was held and the proces verbal thereof returned on the 8th of May, 1896. The notary closes the proces

      verbal with the statement that the total amount of liabilities as shown by list of liabilities on file was twelve thousand four hundred and eighty-five dollars. That the number of creditors was one hundred and nine; that out of this number eighty-four appeared either in person or by proxy; appeared and voted, representing in amount twelve thousand five hundred and seventy-one dollars.
    That fifty-four of said votes, representing in amount seven thousand five hundred and eighty-one dollars, voted for “granting the respite,” and the balance, or remaining votes, thirty in number, representing the amount of four thousand nine hundred and ninety dollars, voted “ against granting the respite.”
    That the majority of votes cast in number and amount was in favor of the respite as prayed for.
    On the 15th of May, 1896, twenty-eight of the creditors who had voted against the respite united in a petition to the District Oourt opposing the homologation of the proceeding, assigning as reasons:
    1. That there was no legal order, for the same. That the one granted was inadvertently granted by the court without requiring the plaintiff, Drew, to make a proper legal showing.
    2. That the schedule presented was not sworn to and there was no legal affidavit to procure the order of court.
    8. There was no legal and proper schedule presented, and fictitious values were placed thereon. All in fraud of the rights of opponents.
    4. The parties named as creditors were not all creditors, and a great many of them were not creditors for the amount placed on the list. That there were names placed on the list in order to procure them to vote for the respite.
    5. The showing made by the debtor was false and fraudulent, giving fictitious values to his property to make a showing of solvency to procure votes in favor of the respite.
    6. The debtor is hopelesly insolvent and not entitled to a respite under the law.
    7. He has made false and fraudulent offers of payment to some of, his creditors to procure their votes in favor of the respite, and has induced them to do so by promising to pay their debts in preference to the others, or to pay fifty cents on the dollar in cash as soon as the respite was granted, thereby purchasing votes in favor of the respite, all in fraud of the rights of opponents.

      8. Applicant, shortly prior to the filing of his pretended schedule, fraudulently disposed of a great portion of his property and converted the same into money or evidences of debt, with the view of placing same beyond the reach of his creditors, and has not accounted for samé in his pretended schedule — all in fraud of the rights of opponents.
    9.' Applicant has voted arid caused to be voted for his respite fictitious claims through which false and fictitious votes the notary returned his prooes verbal with a majority in number and amount of creditors as being in favor of the respite to the fraud and injury of opponent.
    10. That just prior to the filing of the schedule Drew colluded with and procured attachments to be run on his property, based on fictitious claims and claims secured by mortgage and personal securities, collaterals, pledges, etc., for the purpose of forcing his honest creditors into a compromise of their claims at a large discount, and seeing that said attachments would be set aside and dissolved as in fraud of his real creditors filed this petition for a respite for the purpose of getting his property out of the jurisdiction of the court and the reach of his creditors, and especially of opponents.
    11. That Drew fraudulently procured votes for his respite by promise of cash settlement in case his respite, was granted by paying the expenses of getting up the affidavits and powers of attorney of the creditors to vote for the respite and by giving security to the creditors voting for the respite and by statements made on circulars and private letters sent out by himself and his attorney, giving a false and fraudulent statement of his financial condition.
    12. That Drew obtained credit from opponents Preston & Stauffer to the amount of his indebtedness to them, by making personal statement to them of his assets and liabilities, showing him worth, net, twenty-seven 'thousand three hundred and fifty dollars, said statement having been dated October 10, 1895, which statement was false and fraudulent, Drew being at that time in an embarrassed condition, if not insolvent.
    13. That he obtained credit from all of the opponents by means of statements made by him to the commercial agencies (Bradstreet and Dun), showing his assets above all liabilities to be about twenty-three thousand three hundred dollars, which was false, said statement being made during the month of October, 1893.

      14. That it would be against good morals and public policy to permit him to obtain their goods in the fraudulent manner set forth, and then force them to submit to his respite of one, two and three years voted .by friendly creditors.
    15. That a majority of the'bona fide creditors in number and amount voting in said meeting was against the granting of the respite — that the Bank of North Louisiana was not a creditor of Drew at the time of the filing of his schedule, or if a creditor for only a small amount. That the claims voted by Mrs. Hobbs, Tooke and Atkins and Windman were not just debts; that they had been extinguished by payment or prescription, if they ever existed. They prayed that the opposition be sustained and the orders granted be set aside. That the meeting of the creditors and proceedings thereon be annulled and set aside. That the debtor be debarred from claiming a respite and he be adjudged insolvent and the respite proceedings be converted into insolvency», proceedings, a cession of property ordered and a meeting of creditors be called to elect a syndic.
    Plaintiff moved to dismiss the opposition on the ground (1) that opponents were different firms and individuals located in the different States, having no business in common, and their opposition could not be joined or consolidated in one action; (2) because it was filed at Chambers without any order; (3) because the allegations were too vague to give proper notice; (4) it showed no cause of action.
    After trial the court rendered judgment sustaining the opposition filed and disallowing the respite asked for; the court further decreed that the applicant, E. C. Drew, was insolvent and ordered him to make a surrender of his property within ten days. It ordered that a meeting of his creditors be held for the purpose of electing a syndic and attending to such other matters as might be necessary in the premises, such as providing for the sale of property, fixing terms of sale, etc. Attorney for absent creditors was appointed and B. M. Manning, sheriff of the parish of Bienville, was appointed provisional syndic. The applicant, Drew, appealed devolutively from the judgment.
   The opinion of the court was delivered by

Nicholas, C. J.

The case before us exhibits forcibly the indefinite and unsatisfactory provisions of our law on the subject of respite. Art. 3092 of the Civil Code, while recognizing the right of creditors to make opposition to the homologation of the proceedings of the meeting of creditors, does not specify what the character of the objections to be made should be, nor what judgment should be rendered in the event of their being sustained. The District Court under the evidence reached the conclusion that the estimate placed by Drew upon his assets was too large and that a comparison of their real value with the amount of his liabilities disclosed the fact that he was not only “unable to satisfy his debts at the moment” (C. C. 3084), but that he was actually “insolvent” — that is, “he was in the situation of a debtor who found himself in the impossibility of doing so.” C. C. 3556, No. XI. Starting with this premise and acting upon the declaration made in several decisions of this court that in respite proceedings solvency was presumed while proceedings in matters of voluntary or involuntary surrenders were based upon the very reverse theory, the court evidently deduced the consequence that a judgment decreeing a respite in a case where insolvency had been affirmatively shown was utterly inconsistent with the doctrine upon which the whole matter rested. That therefore the court would not be justified in decreeing the respite “ even though a majority of creditors in number and amount ” should declare in favor of such a judgment (C. C. 3086), when there were opposing creditors resisting on the ground of insolvency. When the court reached this conclusion, it went further — it decided that not only was a respite not permissible, but that the logical outcome of the situation was, that the applicant should be ordered to make a surrender of his property and judgment was rendered accordingly.

Philips vs. Creditors, 36 An. 909, presented features in all essential respects similar to those of the present case. There, as here, the applicant received in favor of his application the vote requisite for obtaining a respite; there, as here, there were opposing creditors resisting, on the ground of the absence of “a true and exact schedule sworn to,” and there, as here, the District Court refused the respite, and forced the applicant into a surrender. This Court affirmed the judgment, in so far as it refused the respite, but reversed it in so far as it forced a cession. In the opinion rendered, we said: “ The question remains whether the portion of the judgment enforcing the cession and appointing a provisional syndic should be sustained. The Code, Art. 3098, provides: ‘ when the creditors refuse a respite, the cession of property ensues, and the proceedings continue as if the cession had been offered in the first instance.’ ”

“This is the only warrant for continuing the proceedings as in case of cession. The law grants to a majority of creditors the option of either granting the respite or of refusing it, and therefore gaining the advantage of a cession of property. They have not availed themselves of the last alternative. They have not refused the respite, and therefore, under the express terms of the law, the condition upon which the cession ensues has not arisen. The respite is denied, not by reason of the refusal of the creditors to grant it, but by reason of defect in the proceedings having the effect to invalidate it. By ordering the matter to proceed as in case of cession, we should act without warrant of law, and, moreover, the defective schedule would be as grave an obstacle to the validity of the proceedings as a voluntary surrender or cession as it is to the respite proceeding.”' (Burden vs. Creditors, 20 An. 1384.)

The decree of the District Court as it stands is a decree for a “ forced surrender,” inasmuch as the applicant made no offer to make a cession. This judgment was made in the face of a vote of the applicant’s creditors according a respite, and therefore necessarily (for the present, at least) a vote in direct opposition to a forced surrender. The court, in our opinion, was without warrant to issue the decree it did at the instance of the opposing creditors. The circumstances and conditions under which a forced surrender can be ordered are specially provided for by law. Had the present proceedings originated with judgment creditors who had issued executions which had been returned “ nulla bona,” and had, at their instance, a meeting of the creditors of the debtor been ordered by the court, as provided for in Sec. 1781 of the Revised Statutes, “to determine whether the surrender of his property shall be made to his creditors,” the forced surrender would have been refused “if a majority of the creditors in number and amount opposed the surrender” (see the provisos to the section). The court was in error in holding that it was authorized at the instance of the opposing creditors at the time and in manner and form as their application was made to decree a cession of property. Upon an examination of the record and of the allegations of Drew’s petition, which he verified by his oath, we find that he did not deposit, as required by the law, in the office of the clerk of the District Court, a true and exact schedule, sworn to by him, of all Ms movable and immovable property.” The averment of his petition which he swore to was this: “ Petitioner herewith presents with this petition-a ‘ sworn list of ‘ his creditors ’ and ‘ list,’ as below, of his debts and assets.” In point of fact, the list of assets was not sworn to and the assets therein mentioned were, in the opinion of the District Court, overvalued. We are not able to say that its conclusions on the subject of the assets of the applicant were incorrect.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the application of E. C. Drew for a respite be and the same is dismissed, costs of the District Court to be borne by Drew, the applicant; costs of appeal to be paid by the opponents, appellees.


author: Nicholls, C. J.

text:
    No. 12,421.
    State ex rel. Christopher Sintes vs. N. H. Rightor, Judge Civil District Court.
    While it is true that the interrogatories propounded under the articles of the Code of Practice are designated as “Interrogatories on facts and articles,” it does not follow necessarily from this that all the rules governing interrogatories propounded under Art. 851should also apply and control those propounded u-'der Arts. 246 et seg. It may be that the District Judge would have the “ power ” to order in some particular case that the garnishee’s original answers be mode oral.y in open court, and enforce liis order by way of penalty, but this is something other than that a creditor should have an absolute right to require him to take such action and to force him to do so through a mandamus when he declines.
    APPLIOATION for Writ of Mandamus.

      Benjamin Ory and B. R. Forman, JV., for Plaintiff, Relator:
    Article 246, C. P., provides: “ The party thus made a party to the suit is termed a garnishee.”
    Article 245, G. P., provides: “A creditor may also annex to his petition interrogatories on facts and articles to be answered categorically under oath by such garnishee.”

      Article 851, O. P., provides: “The party propounding the interrogatories may require' the party interrogated to answer in open court, and in his presence on the day appointed to that effect by the judge, if the party interrogated reside in thp parish where the court holds its sittings.”
    It is plain that as the garnishee under Art. 246 of the O. of P. is a party to the suit, and as interrogatories on facts and articles, under Art. 247 of the C. of P., may be propounded to the garnishee, and as under Art. 851 of the C. of P., the party interrogated on upon interrogatories on facts and articles may be required to answer in open court that the garnishee made a party may be likewise required to answer in open court.
    The ease of Petway vs. Goodin, 12 R. 445, the court decides expressly “ that a garnishee can b.: required to answer in open court, both in case of attachment and in case of garnishment upon fi. fa.

    In the case of Petei’s vs. Gibson, 11 An. 97, the x’eason of the law is given, to-wit: That the party has a right to interrogate a garnishee as a witness in open court in the presence of the parties and the judge, the right to compel him to answer in his own language.
    In the case of Derbes vs. Deeuir, 5 R. 491, the court held: “That the answers of the garnishees were properly required to be in open court, if the plaintiff so desired it.”

      Farrar, Jonas & Kruttschnitt for Respondents.
    Submitted oxx briefs February 6, 1897.
    Opinion handed down February 17, 1897.
    Rehearing refused April 12, 1897.
   On Application for Writ of Mandamus. .

The opinion of the court was delivered by

Nicholls, C. J.

Relator avers that he filed in the Civil District Oourt for the parish of Orleans, a petition against William J. Commerford, asking judgment for forty-eight hundred dollars; that he caused a writ of attachment to issue against him and made one Brainard Rorison, residing in New Orleans, and the Barber Asphalt Paving Company, a corporation domiciled in said city, garnishees; that the petition and interrogatories, and the citations and notices of seizure were duly and personally served upon the garnishees, and they were ordered by the court to answer said interrogatories under oath and in open court, on Monday, January 4, 1897, and the answering in open court was regularly continued until Monday, January 25, 1897, when the said garnishees, through their respective counsel, objected to the right of the plaintiff to require said garnishees to appear in open court, and, thereupon, the Honorable N. H. Rightor (judge of the court) sustained the objection of said garnishees and rescinded the orders, requiring them to answer the interrogatories in open court, and denied the relator the right to have said interrogatories so answered; to which ruling relator reserved a bill of exception. He avers that it was the ministerial duty of the judge to require said answers to be made in open court, and it was relator’s right, under Arts. 246, 247 and 351 of the Code of Practice, and the case of Petway vs. Goodin, 12 Rob. 445, and other decisions fixing the jurisprudence of the State, to have said interrogatories answered in open court in order tljat the truth might be ascertained, and that relator might make use of the answers so obtained in support of relator’s demand against Commerford. He averred that neither of the garnishees came within any exception to the law giving relator the right to require said questions to be answered in open court; that it was important for relator, in advance of going to trial, to discover what property rights and credits were in the hands of the garnishees. He prayed that an alternative writ of mandamus issue to said judge, commanding him to order the said garnishees to answer said interrogatories propounded to them in open court at an early date to be by him fixed in the presence of relator or his counsel, and that after due proceedings said writ be made peremptory. He prayed for such other orders in the premises as this court would be able to grant and deem appropriate.

A rule to show cause having been served upon the District Judge, he answered. He submitted to the court that the matter did not fall within its supervisory jurisdiction; that relator was fully protected in all of his rights by a right of appeal to the Supreme Court, if, indeed, said order complained of was one subject to review, in any form or manner, which he denied. He denied all of relator’s allegations, except so far as he specially admitted them. He filed the record of the suit of Christopher Sintes vs. William J. Commerford, which was duly allotted to the division of the court presided over by himself. He declared that said record, including the bill of exceptions reserved by relator, fully and correctly set forth all the facts in reference to the matters and things complained of by relator, except as to such matters as were by him thereinafter alleged.

He declared that true it was that the time fixed for the answering of the interrogatories under oath in open court was originally fixed for Monday, January 4, 1897, and that the time to answer was regularly postponed until January 25, 1897, when the proceedings set forth in relator’s bill of exceptions took place.

He averred that exercising his best judgment he decided the question whether or not the said answers should be made in open court in the negative, for the reason that, in his opinion, the laws of the State did not authorize an order requiring garnishee to answer in open court,- but that the right to such answers in open court was preserved to relator upon a traverse of the written answers to interrogatories on file, if relator should desire to obtain such answers to interrogatories on facts and articles in open court. That his decision of the question was one rendered in the performance of his judicial duties, and was not the performance of a mere ministerial duty, and that the writ of mandamus did not lie to compel him to rescind the said order by him rendered. He prayed that the writ asked for be refused.

The bill of exceptions recites the different documents filed and orders given and proceedings had in Sintes vs. Commerford up to the calling of that case on January 25, 1897. It recites that upon that day the garnishees appeared in open court, through their attorneys, and objected to the right of the plaintiff and the court to require said garnishees to answer in open court upon the grounds:

1. That there was no law in any case warranting an order requiring such answers in open court; and
2. That even if there were such law it did not apply to those particular garnishees who were not residents. That thereupon the court, without hearing any evidence, sustained the garnishees in their first objection and rescinded the order of December 15 and 25, requiring said garnishees to answer said interrogatories in open court and denied plaintiff the right to have them so answered.

Relator relies upon the articles of the Code of Practice, cited in Ms petition upon Petway vs. Goodin, 12 R. 445; Derbes vs. Decuir, 5 R. 491, and Peters vs. Gibson, 11 An. 97.

An examination of the pleadings in the suit of Sintes vs. Commerfordshows that thejiplaintifif filed a supplemental petition to which he annexed interrogatories, which he' desired answered by the parties therein named, but that in his prayer asking that the court order them to be answered he did not ask that they be ordered to be answered “ in open court.” For some reason not explained, the order signed by the judge required the interrogatories to be answered on the 4th of January, 1897, at 11 o’clock. Brainard Rorison on that day filed in court written answers. It does not appear that the Barber Asphalt Company answered at all.

Counsel for defendants press upon us that the suit is an appealable one, and that any erroneous ruling made in the course of the proceedings could be corrected on appeal; that we should not detach a special ruling from the main case and dispose of it by anticipation. The orders which issued in this case were based upon the theory that the right claimed by relator might on examination be found to be an absolute one which, if not granted now, might be entirely defeated by delay, either by the removal of the parties from the jurisdiction of the court or by death. Relator, would have presented on this hypothesis a very strong case for exceptional action on our part. In State ex rel. Chism & Boyd vs. Judge, 34 An. 1178, where the judge referred a case before him to be tried by a jury, which under the law was triable by the court itself, we said: “A mandamus is often sought and obtained to set in motion a judicial officer who is unwilling to proceed with the decision of a cause instituted before his court, the plaintiff therein having an absolute right to a determination of his action in the form and manner prescribed by law. State ex rel. Leeds vs. Judge, 32 An. 542; State ex rel. Cobb & Gunby vs. Judges, 32 An. 774; La. Ice Co. vs. State National Bank, 32 An. 597; State ex rel. Merchants’ Mutual Insurance Company vs. Judges, 33 An. 1070; State ex rel. Winter & Hunter vs. Judges, 33 An. 1096; State ex rel. Bloss vs. Judges, 33 An. 1351; High on Extraordinary Remedies, par. 250. A distinction is recognized between cases where it is sought by mandamus to control the decision of the inferior court on the merits of a cause, and cases where it has refused to go into the merits of a cause and cases where it has refused to go into the merits of an action upon an erroneous construction of some question of law or practice preliminary to the whole case, High on Extraordinary Remedies, par. 151) . * * * In the exercise of the powers conferred upon it by Art. 90 of the present Constitution, this court feels justified in interfering in the present case, in which, otherwise, the ruling made might prove a denial of justice. Its appealable character is of no significance.”

We have on a number of occasions referred to our power under Art. 90 of the Constitution to grant exceptional relief (see State ex rel. Murray vs. Judge, 86 An. 578; State ex rel. Whitney Iron Works vs. Judge, 44 An. 1091, 1092; State ex rel. Lehman vs. Judge, 46 An. 168; State ex rel. Saizan vs. Judge, 48 An. 1501.

As the ruling complained of was one made on an issue raised and contradictorily disposed of between the parties in interest, in a case appealable to us, we are to inquire whether the matter, as presented, be of a character such as to call for the supervisory control over the action of District Courts which we only exceptionally exercise in that class of cases.

In Derbes vs. Decuir, 5 R. 491, plaintiff was appellant from a judgment rejecting his claim against the defendant on an alleged assumption of the latter of one-half of a sum due to the plaintiff by defendant’s father-in-law. The demand was for a sum of overfive hundred dollars. Plaintiff claimed that evidence of the promise was to be. found in the deposition of one Delahoussaye and resulted from his neglect to answer the interrogatory of the plaintiff in this respect. The precise relation which he (Delahoussaye) occupied in the litigation, the report of the case does not disclose. It would seem, however, that he had been cited into court to answer in open court one or more interrogatories, and that having failed to do so, they were taken for confessed. The Supreme Court held that this order taking the interrogatories for confessed was improvidently rendered. It said: “ The neglect to answer would have been sufficient if the interrogatory had been required simply to be answered, but being required to be answered in open court it was the duty of plaintiff’s counsel to call on the court to appoint a day for that purpose. This was not done (C. P. 351.) In Stewart vs. Carlin, 2 La. 73, we held that “ if a party be ruled to answer interrogatories in open court and his opponent does not move for and fix a certain day on which to answer, they will not be taken for confessed if the party interrogated fail to answer.

In Petway vs. Goodin, 12 Rob. 445, plaintiff, who had obtained a judgment against defendant, caused a ft. fa. and garnishment process to issue against two defendants. The application to the court was “that each of the garnishees separately and each for himself be cited to appear and answer separately and each for himself annexed interrogatories in open court under oath in ten days from the service thereof.” The order of the court was that they “ answer the interrogatories as prayed for and according to law.” One of the garnishees filed written answers, the others failed to do so. Judgment by default was taken against them, which was subsequently made final, they being condemned to pay each the amount of the judgment, on the only ground that having been cited to answer the interrogatories and having failed to do so they should be taken for-confessed. On appeal the court said there was one objection sufficient to cause the judgment to be annulled, an objection that destroyed its very foundation — in fact the only ground upon which it rested. It announced as this fatal objection that no day had been appointed by the court on which the interrogatories were to be answered and declared that this was essentially necessary to have been done. That though the garnishees wers found to be in court when the court should fix a day prepared to comply with the prayer of -plaintiff’s petition, they were not concluded until a day had been fixed, and they had failed to answer. The court was of opinion that although the garnishees were not parties to the original suit, they were properly parties to the controversy that arose between them and the defendant’s creditors with respect to the object of the proceeding; that they were parties to the litigation, adversaries of the seizing or attaching creditors and that Art. 351 of the Code of Practice, making no distinction, said: “The parties propounding interrogatories may require the party interrogated to answer in open court,” etc.; that there was nothing in Arts. 247 and 263 which dispensed them from answering in open court; that the article did not indicate in what manner the answers should be taken or received, and that the garnishees would have been bound to have answered in open court if a day had been appointed by the judge for that purpose. We have found no other decision of this court bearing upon the question presented for the reason doubtless that it is exceedingly unusual that the answers of a garnishee as originally made should be sought to be forced to be made in open court. The practice has almost invariably been for garnishees to answer under oath before a notary public the interrogatories propounded to them, to have those answers written out and signed and then filed in the case in which they were asked. Garnishees are generally regarded, until they shall have filed their answers and until a traverse to the same having been made, an issue has been raised between the plaintiff and themselves, in the light of stakeholders rather than “parties” or “ contesting ” parties.

One of the garnishees (Rorison) has filed written answers to the interrogatories propounded, the other, a corporation (the Barber Asphalt Co.), has taken no action whatever so far as the record discloses.

Article 246 of the Code of Practice authorizes a creditor who suspects that a third person has in his possession property belonging to his debtor, or that he is indebted to such debtor, to make such third person a party to the suit by having him “ cited to declare on oath ” what property belonging to the defendant he has in his possession, or in what sum he is indebted. The article does not point out the precise manner in which this “declaration under oath” shall be made.

The next article (Art. 247) authorizes the creditor to likewise annex to his petition interrogatories on facts and articles to be answered categorically under oath by the garnishees, but is still silent as to how or in what mode the interrogatories are to be answered.

Article 248 provides for the special case where the creditor has reason to believe that the person to whom he has caused interrogatories to be propounded is “about to depart from the State without having” filed His ANSWERS to such interrogatories. In such a case the creditor may have the party interrogated a;rested.

This article Shows that it was in contemplation of the lawmaker that the answers should be “ filed” in court, not that they should be taken down by the clerk in open court. The person so arrested is declared by Art. 249 to be entitled to be discharged if he immediately, in presence of the court, answer in writing and pertinently the answers propounded to him, and file such answers in the office of the clerk of the court.

It will be seen from this that even where there may be reason to apprehend that the party interrogated is about to leave the jurisdiction of the court, the answers may be written and filed.

Article 262 declares that the garnishee who has been cited in a suit must “ put in his answer” within the usual delay, declaring “in the same” what property he has belonging to the defendant * * * and if interrogated on facts and articles he must answer under oath clearly and categorically each question put to him touching such matter.”

The article 'does not direct that the answers thus ordered to be “ clearly and categorically ” made should be.made orally in open court.

The articles of the Code which we have cited are found under the special heading of attachment and garnishment. No reference is made to the later Art. 351, nor does this latter article refer back to them. It is true that the interrogatories propounded under all of the articles are designated as “ interrogatories on facts and articles,” but it does not follow necessarily from this that all the rules governing interrogatories propounded under Art. 351 should also apply and control those propounded under Arts. 246 et seq. It may be that the District Judge would have the “power” to order in some particular case that the garnishee’s original answers be made orally in open court, and to enforce his order by way of penalty, but this is something other than that a creditor should have an absolute right to require him to take such action, and to force him to do so through a mandamus when he declines.

The case at bar is one where the judge having inadvertently given an order when not asked, and having rescinded the same when called to his attention, is sought to be compelled to adhere to his original order.

The case is not one which calls for the relief asked.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the order hereinbefore granted be set aside, and relator’s application be and, the same is hereby rejected.


author: Nioholls, C. J.

text:
    No. 12,427.
    The State of Louisiana vs. John Reed and Anais Parks.
    The verdict oí a jury is not vitiated by the misspelling of the word foreman on the indictment or the finding of the jury, State vs. Sheppard, 33 An. 1216.

      Act No. 113 of 1376 authorizes the clerk to open a note of evidence so as to show the facts upon which a bill is taken, hut the “Statement of Facts” therein referred to is directed not to stand “in lieu of” a bill, but to be “ annexed to” a bill of exceptions which it is contemplated should be reserved and filed.
    A party jointly indicted with defendant was placed on the stand on behalf of the defendant. On cross examination a confession made out of court by the witness implicating himself (the witness) and the accused was brought to the knowledge of the jury under an acknowledgment by the witness that he had made such a confession. The witness having made this admission the court left it to the jury to say which of the two statements made by the witness was correct.
    Held : This was error. When the State proposes to impeach or attack the credibility of one of defendant’s witnesses by proof of statements made by him out of court, conflicting with those given on the stand, it is the duty of the District Attorney to state to this witness what those prior statements were and when and where made, and inquire of him whether or not he made the same. If the witness acknowledges to have done*1 so, the prior statements so admitted by him to have been made should not be permitted to go to the jury as criminative evidence against the accused.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, and James Simon, District Attorney, for Plaintiff, Appellee.

      Edward Simon for Defendants, Appellants.
    Submitted on briefs March 20, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Nioholls, C. J.

John Reed and Anais Parks were indicted jointly for murder. A severance having been obtained, Reed was tried -and found “ Guilty as charged.” He has appealed from the sentence of death pronounced against him. The indictment charged that “they” (the parties indicted) “in and upon one Jacques Comeau, in the peace of the State then and there being feloniously, wilfully and of their malice aforethought, did make and assault and him, the said Jacques Comeau, feloniously, wilfully and of their malice -aforethought then and there kill and murder.”

Defendant moved in arrest of judgment for the reasons:

1. Because the juror appointed as foreman of the petit jury did not sign the return of the finding of that body with the addition of the word “foreman,” but with the addition of words of a different meaning and spelling, to-wit: the words “ for-man,” or “ forman” if joined together.
2. Because the return of the so-called verdict does not couple the name of the defendant with the words “ Guilty as charged,” his name merely figuring at the top of the back of the document, disconnected with the said finding.
3. Because nowhere in the indictment is the word “unlawfully” used in connection with the crime charged.
4. Because the minutes of the court do not show that defendant was present when he is said to have' pleaded to the indictment.
5. Because the court- allowed the former District Attorney to assist the newly appointed District Attorney on the trial and have the same carried on the minutes, which was equivalent to. an illegal appointment by the court of an Assistant District Attorney to represent the State, when no one had so requested except the District Attorney.
6. Because the term of court at which the so-called verdict was returned on the 15th of January, 1897, lapsed for the reason that the court having adjourned its session on the 23d of January to the following Monday, the 2§th of the same month, the presiding judge did not come into court on the 25th to open and adjourn his court to another day, but simply wrote to the sheriff of the parish to adjourn the court on that day from New Iberia, owing to illness. That this course was illegal and unauthorized, said judge having omitted to instruct said sheriff to open said court on said day and then adjourn it, in consequence of which omission said sheriff merely adjourned said court on said day to another day, the 28th of January, 1897, as instructed, without first opening the court, which had been closed by adjournment on the 23d instant. That said proceeding was a bar to any further proceeding in the case, and to the passing of sentence upon the defendant.

The court overruled the motion.

The motion in arrest was correctly overruled. The misspelling of the word “ foreman,” in leaving out the letter “ e,” is an insignificant fact. The pronunciation of the word was not changed, and besides, in State vs. Sheppard, 33 An. 1216, it was held that the verdiet of the jury is not vitiated by the fact that it is signed by the foreman without the usual addition of “foreman” appended to his signature.

The minutes of January 15th show under the title of the present ease that “ the jury returned into court and through their foreman, Fred. Schmidt, brought and delivered the following verdict, viz.:

‘ John Reed guilty as charged,’ signed Fred. Schmidt Forman, and that on motion of counsel of the prisoner the court ordered that the jury be polled, which being done each juror answered that the verdict of ‘ guilty as charged,’ was his verdict.” The verdict might have beenrendered orally, and practically it was so rendered independently of the writing. State vs. Sheppard, 33 An. 1217; State vs. Walters, 15 An. 648; State vs. Ross, 32 An. 854.

The verdict as rendered could have referred to no one other than the party on trial at the time. If there had been any possibility for mistake (which there was not), the writing of the name “ John Reed ” before the words “ guilty as charged ” fixed beyond question the identity of the person to whom the verdict referred.

There was no necessity for the word “ unlawfully ” to appear in the indictment. The latter was drawn in accordance with the requirements of Sec. 1048 of the Revised Statutes.

The minutes show that the accused was present in court and pleaded to the indictment.

There is no good cause for complaint that the former District Attorney should have been permitted, at the request of the new District Attorney to assist the latter in the prosecution of the case. The fact that an entry to that effect was made on the minutes did not make the assisting attorney an “ assistant District Attorney” by appointment of the judge.

We find in the record, minutes as of the 25th of January, 1897. They read as follows:

“ State of Louisiana,)
“ Parish of St. Martin, )
“ Monday, January 25, 1897.)
“ By virtuein accordance with the following order viz.:
“ ‘ New Iberia, January 25, 1897.
“ ‘ Sheriff David Reese, St. Martinsville, La.:
‘ ‘ Dear Sir — Being confined to my bed with fever and unable to-go to-day to St. Martinsville, you will please adjourn court until Thursday morning, the 28th instant, at 9 A. M. You will cause this order to be spread on the minutes of the court.
Very respectfully,
“ ‘ (Signed) F. Voorhies,
“ ‘ Judge Nineteenth Judicial District.
“Which said original order is hereto annexed and made a part hereof. Sheriff David Reese and Clerk of Court William B. Easton, proceeded to the court room, and then and there Sheriff Reese opened and adjourned the court until Thursday the 28th instant, at 9 o’clock A. M.
“ (Signed) Wm. B. Easton,
Clerk of Court.
“ Approved:
“ (Signed) F. Voorhies, Judge.”

The judge was authorized to give this order to the sheriff and the court stood properly adjourned by the sheriff acting under it. (Revised Statutes, Sec. 1934.)

We find in the record a “ statement of facts ” signed by the District Clerk which is declared to “ stand in lieu of a bill of exceptions ” and which has been treated as such by all parties evidently under the impression that Act No. 113 of 1896 authorized such a statement to be made by the clerk and that being so made a formal bill of exceptions was dispensed with. In this there is error. The •act authorizes the clerk to open a note of evidence so as to show the facts upon which a bill is taken, but the statement of facts is directed not to stand “ in lieu of ” but to be “ annexed to ” a bill <of exceptions which it is contemplated should be reserved and filed. Under a strict application of the rules of practice governing appeals in criminal cases, matters complained of by an appellant when attempted to be brought to our attention in the irregular manner in which this case has been presented would not be considered, but it being one involving life and the statute one only recently enacted, we have, in view of those facts, coupled with the grave character of the errors charged, felt justified in dealing with this as an exceptional one. When the State proposes to impeach or attack the credibility of one of defendant’s witnesses by proof of statements made by him out of court, conflicting with those given on the stand, it is the duty of the District Attorney to state to the witness what those prior statements were- and when and where made, and inquire of him whether or not he made the same. If the witness acknowledges to have done so, the prior statements so admitted by him to have been made, should not be permitted to go to the jury as criminative evidence against the accused. This admission should not carry the prior statements to-the jury as “ substantive evidence ” against the prisoner, but on the contrary, the court should specially and expressly caution the jury from giving to it that effect. In .the case at bar we gather from the-statement of facts that when Anais Parks (who was jointly indicted with Reed) was on the stand as a witness for defendant, a confession made out of court by the witness, implicating the witness and Reed,, was brought to the knowledge of the jury under an acknowledgment by Parks that he had made such a confession, and that the-witness having made this admission, the court left it to the jury to-say which of the two statements made by the witness was correct.

If the confession in question was admissible against the appellant it should have been placed before the jury at a different time and under different conditions.

For the reasons herein assigned it is ordered, adjudged and decreed that the verdict of the jury and the judgment of the court therein rendered be and the same are hereby annulled, avoided and reversed, and it is ordered, adjudged and decreed that this cause be remanded to the District Court for a new trial.


author: Nicholls, C. J. Nicholls, C. J.

text:
    No. 12,346.
    Succession of Mrs. Helen C. Haley.
    On Motion to Dismiss.
    An appeal from the orders of court appointing and confirming a tutrix is not a collateral attack upon sueli orders of appointment; it is a direct method of reviewing them authorized by law.
    On the Mekits.
    Applications for natural tutorship are usually acted upon as “ of course ” on the hypothesis there are no conflicting rights. Under Art. 256, C. C., the natural mother is declared to be entitled, under the circumstances therein stated, to be “of right” the tutrix of her child; but though she be entitled to that “of right” she is not necessarily to be appointed as “ of course.”

      When a child has been unquestionably adopted by a person, as appears from pleadings which admit the fact, the adoption will be held as made not only presumably with the mother’s consent, but under the conditions required or permitted by law, and the mother of the adopted child, advised of the death of the adopting mother, and that in her will she had appointed a testamentary executor, under whose control said child should remain during its minority, should not be permitted to obtain an appointment as tutrix, ignoring the adoption and its possible legal results, and the claims and pretensions of the executor under the will.
    Since the decision in Tutorship of Upton, 16 An. 175, and Succession of JTorstall, 25 An. 130, legislation in respect to adoption has gone forward, and recent adjudged cases will indicate that this court views the rights of adopting parents as having been broadened by that legislation beyond what it was.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Horace E. Upton and Farrar, Jonas & Kruttschnitt for Anatole A. Her, individually, as testamentary executor and as applicant for ■appointment as testamentary tutor, for Appellant, cite:
    Succession of Hossa, 37 An. 841.
    Succession of Yollmer, 40 An. 594.

      James B. Rosser, Jr., for Jeannette Prescott, Natural Tutrix, Appellee, cited:
    ■“ Succession of Forstall,” 25 An. 430, and “ The matter of the Tutorship of Ellen Wilson Upton,” 16 An. 175; to Art. 256 (274) of the Civil Code; to Succession of Gorrison, 15 An. 27; Succession of Hawkins, 35 An. 591; Nugent vs. Stark, 34 An. 631, and “In re Fazende & Seixas praying for a monition,” 35 An. 1145.
    •Submitted on briefs March 18, 1897.
    Opinion handed down March 29, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Mrs. Helen C. Taite, widow of Cornelius C. Haley, died in June, 1895, leaving a last will and testament.

In this will the testatrix, after stating that “ she had neither ascendants nor descendants, but that she had an adopted child named Charles Mandeville Taite, aged about eight years,” and after making special legacies, declared “that she gave and bequeathed to her said adopted child the balance or remainder of all her estate of whatever nature or description, constituting him her sole and only universal legatee, and appointed Anatole Ker her testamentary executor and detainer of her property and also testamentary tutor of the said child without bond.” She declared that during his minority the said child should remain in charge of and under the control of her executor.

Shortly after the death of Mrs. Haley, her will was, upon the petition and prayer of Anatole Ker, probated and ordered to be executed in the Civil District Court, Division “A.” Ker then presented a petition in which, after reciting the fact that Mrs. Haley had died leaving said will, that the same had been probated, that he accepted the trust of testamentary executor, that deceased had left property which it was necessary to have inventoried, he prayed that an inventory of the succession be made, and that he be confirmed as executor. An order was granted as prayed for. An inventory was made and Ker qualified as testamentary executor on the 25th of June, 1895. The inventory showed property valued over twenty-four thousand dollars. In October of 1896, a petition was filed in the District Court by Miss Jeannette Prescott, in which she alleged she was the mother of the minor child, Charles Mandeville Taite, who was adopted by the late Mrs. Helen C. Taite, widow of C. C. Haley and who was constituted universal -legatee of said deceased by her last will and testament herein probated and ordered executed. That her minor son, Charles Mandeville Taite, was without a tutor; that as the mother of said minor she was entitled to qualify as his natural tutrix and desired to so qualify. That an inventory of all property belonging to her said minor son, or in which he had an interest, in so far as she was informed and believed, had been taken by the testamentary executor of Mrs. Haley and filed herein, and petitioner was willing to accept said inventory for the purpose hereof and to qualify as natural tutrix on the basis thereof. She prayed that after all due and legal proceedings that she be permitted to qualify, and that letters of tutorship be issued to her as the natural tutrix of her said minor son, Charles Mandeville Taite.

On the 29th October, 1896, the judge of Divison “ A” signed an order to the effect that petitioner be permitted to qualify as natural tutrix of her minor child, Charles Mandeville Taite, upon the basis of the inventory taken by the testamentary executor of this estate and that letters issue to her upon her taking the oath prescribed by law.

On November, 16, 1896, the court issued an order that Miss Jeannette Prescott be confirmed as tutrix of her minor child above named, and that letters of tutorship issue to her, basing the same upon a certificate of the Recorder of Mortgages that an extract of the inventory of the minor’s property and notice of the application for tutorship had been duly recorded in the recorder’s office in New Orleans. Letters of tutorship accordingly issued to her.

On November 23, 1896, Anatole Ker filed a petition in Division “ A ” of the court in which he averred that he had duly qualified as testamentary executor of Mrs. Haley; that her will had been probated and ordered to be executed; that he had been appointed testamentary tutor of the minor Charles Mandeville Taite, the adopted child and sole heir of Mrs. Haley; that he desired to accept said trust and to qualify as such; that by the will he was exempted from giving bond. That one Miss Jeannette Prescott had filed a petition in court unsupported by any proof and without any notice to petitioner, and she had on said petition procured an order qualifying her as natural tutrix of said minor, but that said order so appointing and so qualifying her was erroneous, null and void and improvidently granted. That simultaneously with the filing of the petition he was then presenting to the court, he filed a motion of appeal from the ordersappointing and qualifying Miss Jeannette Prescott as tutrix of said minor. He prayed that after due proceedings he be permitted to qualify and that letters of tutorship issue as testamentary tutor of said minor and that an under-tutor be appointed.

On the same day Ker, in his capacity as testamentary executor of Mrs. Haley and an applicant for appointment as testamentary tutor for the minor, applied for and obtained an appeal from the orders complained of. Miss Jeannette Prescott moved in this court to dismiss the appeal on the ground:

1. That appellant was without any appealable interest. That appellee, being the mother of said minor, has been and alone was entitled to be recognized, confirmed and appointed natural tutrix to the exclusion of every other person.'

2. That notwithstanding the nomination of Anatole Ker as testamentary tutor by Mrs. Haley by her last will, said nomination was absolutely null and void, did not and could not deprive appellee of her right to be appointed and confirmed by the court as natural tutrix of her minor child.

On the Motion to Dismiss.

Nicholls, C. J.

We are of the opinion that under the circumstances of this case appellant had a sufficient legal interest to appeal-Occupying the position which he did under the will of Mrs. C. C. Haley, she herself holding the relations which she had toward the child, we think it was incumbent upon him to take legal steps to have enforced her last wishes in respect to the minor, if they were legally enforceable. The course adopted by the appellee stood directly in the way of his qualifying as testamentary tutor. We do not consider an appeal from the orders of the District Court, appointing and confirming appellee as tutrix, a eollateral attack upon them; it is a direct method of reviewing them, authorized by law. The propositions asserted by appellee, that the appeal is not maintainable, because she, being the mother of the minor, had been and was alone entitled to be recognized, appointed and confirmed as his natural tutrix, and that the appointment of Anatole Ker as testamentary tutor, by Mrs. Haley, was an absolute nullity, because the latter could not deprive the mother of the tutorship, involve questions of fact and law not proper to be determined on the motion to dismiss. Among the points sought to be presented by the appellant, we find it questioned whether appellee was appointed and confirmed under evidence before the court that the person appointed was, in fact, the mother of the child, or if such was the case, that the conditions under which the mother could have claimed the tutorship had been shown to exist. We find it also urged that under the facts of the case, all known to appellee, it was appellant’s right to have been made a party to the application for tutorship, and it was appellee’s duty to have legally notified him of her intended legal proceedings. We think the answer to these questions should be made, if they can be made at all, upon consideration of the merits.

On the Merits.

Appellee claims that the court must presume, in the absence of an affirmative showing to the contrary, that when the court acted on her application it had before it evidence of all the facts necessary to have been shown to authorize the order. Nugent vs. Stark, 34 An. 631, and “Ira re Fazende & Seixas praying for a monition,” 35 An. 1145, are cited in support' of this contention. The order was granted upon a petition with no documents annexed thereto and no affidavit as to the truth of the allegations of the petition. It was evidently an ex parte order given upon the hypothesis that there were no conflicting rights. Applications for natural tutorship are usually acted upon “as of course” on that supposition, but the party obtaining them, under such circumstances takes the risk of their being appealed from if, in fact, there should be opposing interests. We think the present case of that character. The child in question was unquestionably adopted by Mrs. Haley — appellees pleadings admit that fact. If appellee be its mother the adoption was not only made presumbably with her consent, but under the conditions required or permitted by law for adoption. The mother was -fully advised that the adopting mother was dead, and that in her will she had appointed Ker as testamentary tutor. With this knowledge on her part we do not think she should have been permitted to obtain an order appointing her tutrix, ignoring the adoption and what were, at all events its possible, legal results and ignoring the pretensions and claims which she must have known Ker could have set up adversely to her claims.

It is by no manner of means clear that the mother would have been appointed tutrix in a contest raised between herself and Ker claiming as a testamentary tutor appointed by Mrs. Haley. It is certainly not sufficiently clear to have been assumed or to be now assumed as an undeniable uncontrovertible legal proposition. It is true that the cases cited in the 16th and 25th Annuals strongly support the views taken on that subject by appellee’s counsel, bub legislation in respect to adoption has gone forward since those decisions were rendered, and recent adjudged cases will indicate that we view the rights of adopting parents as having been broadened by that legislation beyond what it was.

We note the second section of Act No. 64 of 1868, as declaring that when the person whose adoption is solicited is a minor, the consent of such person’s surviving father or mother, or both, if living, shall be required by the judge, and the said father or mother, -or both, as the ease" may be, may, in the act of adoption, surrender the entire parental authority to the person or persons adopting said minor. What the legal scope of such a surrender may be, we are not now called on to examine or say. We have no knowledge whatever of the facts and circumstances connected with the child. We do not know in whose hands it was prior to Mrs. Haley’s connection with it. We do not know who were the parties to the act of adoption, nor what the térms of the adoption were. We know nothing as to what would or would not be for its best interests, as there is no testimony before us. It is true that the natural mother, as a general rule, is declared in Art. 256 of the Civil Code to be entitled, under the circumstances therein stated, to be “ of right” the tutrix of her child, but, though she be entitled to that “ of right,” she is not necessarily to be appointed as “ of course.” Even the legitimate child is not necessarily to be placed under the tutorship of its father or its mother — the facts of a special case would make it sometimes improper that it should be so placed. What modification Art. 256 may have received in special cases, through special legislation, is an open question.

We have reached the conclusion that justice to all parties requires that the orders of court, appointing appellee natural tutrix of Charles Mandeville Taite, should be annulled and set aside, and that the rights of all parties in the premises be set at large.

For the reasons herein assigned it is hereby ordered, adjudged and •decreed that the orders of the District Court appealed from be and the same are hereby annulled, avoided and set aside; and it is now ordered that the case be remanded to the lower court for further proceedings according to law, with reservation to both parties of all legal rights in the premises.