author: MoRgak, J.

text:
    No. 665.
    H. M. Hyams vs. M. Baer.
    The plea that the subject of this controversy was a Confederate money transaction, which was therefore void, can not be maintained. Confederate notes were not the consideration of the obligation. The consideration was land.
    Defendant had the privilege of paying in Confederate money so long as there was any Confederate currency to pay with. But that privilege he lost by not taking advantage of it when it was in his power to do so.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Seay, J.

      Nutt & Leonard, for plaintiff and appellant.

      JDunaan & Moncure, for defendant and appellee.
   MoRgak, J.

Plaintiff sues on the following obligation:

“Shreveport, June 30,1864.
“ I, Marx Baer, acknowledge myself to be indebted to H. M. Hyams in the sum of twelve thousand dollars, being unpaid balance due to him by me for the purchase money of the tract of land in the parish of Bossier sold by said Hyams to me, béfore Thomas H. Pitts, recorder, this day.
“I have the privilege of paying the above sum in the new currency of the Confederate government, about to be issued, by paying eight thousand dollars in satisfaction of the same (but not in bills of one hundred thereof).
“In the meantime, the sum of twelve thousand dollars is to carry interest at the rate of eight per cent per annum, from the date until paid, and to be calculated upon twelve thousand dollars, and not on eight thousand dollars, and said interest to be paid in new currency; said principal and interest demandable at any time by said Hyams or his agent or transferee, after one month from this date, and if not paid, to bear a lien and privilege on said land in same manner as if the same had been expressed in the deed of sale, and to have same force and effect as if mortgage thereon had been declared therein.
•‘(Signed) M. BAER.”

The defendant pleads that the obligation is for Confederate money, and, therefore, null and void; .alleges that he has the privilege of discharging the same by the delivery of eight thousand dollars in Confederate notes of the new issue; pleads payment and the prescription of five years.

The acknowledgment sued on is dated thirtieth June, 1864. Service-of petition was accepted on the twenty-ninth of June, 1869, so that five years had not elapsed from the date of the acknowledgment of the debt to the filing of the suit. Even if the jDrescription relied upon would protect him, upon which we express no opinion, five years had not elapsed. The plea of prescription can not, therefore, be maintained. The plea of payment is not sustained. He had the privilege of paying in Confederate money so long as there was any Confederate currency to pay with. But that privilege he lost by not taking advantage of it when it was in his power to do so.

As to its being a Confederate money transaction, and, therefore, void. Hyams sold to Baer a certain property. The price was $42,979 50. Nothing is said as to what currency was to be used. The deed recited that the payment was made in cash. This, however, was not so. Twelve thousand dollars remained due. For this amount the acknowledgment, now sued on was given.

In the case of Spyker vs. Hart, 22 An. 534, we said: “ Wegather from the evidence, as a whole, that, in 1864, Cummings and Mrs. Pauline Pickett-sold to Hart a valuable tract of land near Shreveport, for the price of seventy-five thousand dollars, which sum is said by the act of sale to-have been paid in cash. It appears, however, as a matter of fact, but-sixty-one thousand dollars were paid, and this in Confederate notes. For the balance of the price of the land, fourteen thousand dollars, the obligation in suit was given. Confederate notes were undoubtedly the standard of value, but they were not the consideration of the obligation. The consideration was land.”

The decision in that case controls this.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the plaintiff, H. M. Hyams, and against the defendant, M. Baer, for twelve thousand, dollars with eight per cent interest per annum thereon from the thirtieth June, 1864, until paid, with vendor’s lien and privilege upon the property described in the act of sale which is attached to and made part of plaintiff’s petition. Defendant to pay costs in both courts.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 670.
    Cazeaux & Vergnole vs. L. B. Filliquier.
    It is not shown that the custom is universal among dealers in goods to insure the articles they are ordered to ship. Plaintiffs prove that- they never insure goods sold by them, unless specially ordered to do so, and this court thinks that their dealings with defendant indicates this fact. Moreover, defendant was clearly informed that plaintiff had not insured the goods sent, and did not remonstrate. Hence, defendant is liable to plaintiffs for the claims sued upon.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Egan & Wise, for plaintiffs and appellants.

      Nutt & Leonard, for defendant and appellee.
   Howell, J.

Plaintiffs sue defendant on two accounts for $343 60 each, alleged to be for wines sold and delivered to defendant, one dated March 10,1874, and the other March 19,1874. Defendant admits that he received the goods charged in the account of March 19,1874; avers that he is willing and has offered to pay for same; and makes tender in his answer; but denies that he is in any manner bound for the bill of March 10,1874. Judgment was rendered against defendant for the amount of account of March 19, with interest from said date, and plaintiffs appealed. , Defendant asks that judgment be amended by releasing him from all interest.

On the tenth of March, 1874, defendant, by telegraph, ordered plaintiffs, who are dealers in wines and liquors, in New Orleans, to ship him by steamer La Belle six casks claret and a half-cask white wine. On the same day plaintiffs delivered the goods on the steamer La Belle and forwarded by mail the invoice and bill of lading to defendant. On the seventeenth of March the defendant sent the following dispatch to the plaintiffs: “ La Belle has not come. Inquire where are my wines. Answer.” To which plaintiffs answered on the same day : “ La Belle leaves only to-night.” On the nineteenth of March they sent this dispatch: “Your goods transferred from La Belle to Southwestern. Are you insured ? Answer, shall we duplicate order.” To which defendant on the same day answered: “ Shippers always insure my goods when not paid for. Duplicate order at same price.”

The plaintiffe sent the goods. The defendant contends that he is not responsible for the loss of the first shipment; that plaintiffs should, according to custom, have insured, unless instructed not to do so ; and that such custom is shown. If it be admitted that a “ custom ” on this point between plaintiffs and defendant would be binding on both parties and render them respectively responsible, such custom is not established; nor does the evidence show that such custom is universal among other dealers in goods, not including factors and agents. Defendant, previous to this one, had made two bills with plaintiffs. The first was not insured. The second was by special order. When this, the third, was ordered, no instructions to insure were given. Plaintiffs prove that they never insure goods sold by them, unless specially ordered to do it, and we think their dealings with defendant indicate this. They obeyed all orders given them; shipped the goods on the boat designated by the purchaser; and forwarded the invoice (which contained no charge for insurance) with the bill of lading. It is shown that letters usually go from New Orleans to Shreveport in three or four days.' In this instance seven days intervened before defendant made inquiry about the s/ripment. When he did so, the telegram of plaintiffs indicated clearly that they had not insured, and he did not then complain.

We conclude that defendant is responsible on both accounts.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs recover-of defendant $687, with five per cent interest on one half from the tenth of March, 1874, and on the other half from the nineteenth of March, 1874, and costs in both courts.


text:
    No. 643.
    Succession of John P. Spears. Application to seize and sell Property.
    The proceeding is irregular and inadmissible. It is not regular to issue an exparte, order in favor of one or more creditors, without notice or proof, for the sheriff to sell property under administration to pay said creditors. Proceedings should be taken contradictorily with the administratrix, to have property sold to pay all the debts of the succession.
    APPEAL from the Parish Court, parish of Union. Lewis, J.

      J. C. Egan, for plaintiff and appellee.
    (7. II. Ellis, for administratrix, appellant.
   Howell, J.

The plaintiffs in the suits of J. B. Spears vs. Mrs. M. J. Spears, administratrix, and W. L. Spears vs. Mrs. M. J. Spears, admin-istratrix, alleged that they -had judgments against the succession of John P. Spears, deceased, which had been under administration for more than a year, and upon their joint prayer obtained an order from the probate court directing the sheriff to seize and sell, after due legal formalities and advertisements, a sufficient amount of property to pay said debts. From this order, when notified of the seizure, the administratrix appealed.

The proceeding is irregular and inadmissible. It is not regular to issue an ex parte order in favor of one or more creditors, without notice- or proof, for the sheriff to sell property under administration to pay said creditors. Proceedings should be taken contradictorily with the administratrix, to [have property sold to pay all the debts of the succession.

It is therefore ordered and decreed that the order appealed from be set aside and annulled, appellees to pay costs in both courts.


author: Ltjdeling, C. J.

text:
    No. 652.
    M. Gillis vs. B. E. Carter et al. J. Byrne et al., Intervenors.
    The costs for which an appellant must-give bond to secure a devolutive appeal, are the costs of both the inferior court and those of appeal.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Taliaferro, J,

      Boatner & Mam, for plaintiff and appellee.

      James B. Corkern, for intervenors and appellants.

      Preston Hampton, in pro-pria, persona, defendant and appellant.
   Ltjdeling, C. J.

The appellee has moved to dismiss this appeal on the ground that no bond has been given to secure the costs of this suit. The bond is for fifty dollars to secure the payment of the costs of appeal alone.

The costs for which an appellant must give bond to secure a devolu-tive appeal are the costs of both the inferior court and those of the appeal. The English text of the Code says to secure the payment of the costs;” the French text is “ pour sureté clu palement des frais, tant en premiere instance gu’en cas d’appel.” Both the English and the French texts show that the bond is to secure the judgment for costs.

In this case the appellant has failed to give such a bond as the law requires, and his appeal must be dismissed. 3 An. 135; 4 An. 3; 13 An. 417.

It is therefore ordered that this appeal be dismissed with costs.


author: Morgan, J.

text:
    No. 630.
    D. C. Morgan et al. vs. D. T. Locke et al.
    Vaughn’s appointment as public administrator was made by a court o£ competent jurisdiction.' The validity ol his appointment can not be inquired into .collaterally.
    It is immaterial whether the representative oi the succession designated himself as curator or administrator. The point to be determined would be, not the title by which he designates himself, but the power which he has to represent the succession.
    The defendants set up title to the property in controversy, which, they say, was acquired by them from their father, John Turner, and in support of their claim present the following document: “ One day after dale, we, or either of us, promise to pay to John Turner or bearer the sum of six thousand two hundred dollars for a tract of land known as the Dockey place, with eight per cent interest from date until paid. August 23, 1869. Signed: Jackson Turner, Obadiah Turner.”
    This note is certainly no title. It is not an act of sale, and it transfers no property. The fact that it was recorded gives to it none of the forms required for the transmission of real estate, nor does it change the character of the instrument, which is nothing more than an unconditional obligation to pay a certain sum of money.
    The will of Turner, their pretended vendor, is not evidence of any sale; it is not even a donation, for the document expressly says that the proceeds of the note aforesaid, when paid, are to be distributed equally among all the^children. The most that can be said of defendants’ title is that they, perhaps, hold under a verbal sale. But a verbal sale or other disposition of real estate is only proof against the vendor or vendee who confesses it when interrogated on oath. The document relied on is neither a confession under oath nor an answer to interrogatories. It can not, therefore, as to third parties, be of any force.
    The succession of Turner being under administration, the heirs in this condition of affairs were not competent to make deeds one to the other of property belonging to the estate in which they had only a residuary interest.
    The payment of the aforesaid note to the administrator of the succession did not make their title good, as they claim, because they had no title. The payment could not create a title or even complete a defective one.
    APPEAL from tlie Fourteenth Judicial District Court, parish of More-house. Say, J. Jury trial.

      Todcl <&' Brigham, for plaintiffs and appellants.

      Newton & Hall, for defendants and appellees.
   Morgan, J.

This is a petitory action. Plaintiffs claim title under a sale made by the public administrator under an order from the parish court. Defendants deny the validity of the title set up against them, and also claim title from the original owner, in whose succession the property was sold.

The land ip dispute belonged to John Turner, who was a citizen of the State of Arkansas. He died, and his succession was opened in the parish of Morehouse, in the latter part of the year 1869. Rival applicants for the administration of his estate laid claim to the right of administering thereon. Pending their contest, William H. Vaughn, public administrator, applied to he appointed administrator until another administrator should be appointed and qualified. He also asked that an inventory might be taken of the property of the deceased. The judge ordered that Vaughn be appointed to take charge of and administer the succession until superseded by an order of court, and that an inventory be taken, which was done. Upon the inventory figures the property now in dispute. These orders were granted on the thirteenth of February, 1870. On the eleventh of May, 1871, the public administrator asked for and obtained an order to sell the lands inventoried, in order to pay debts.

No decision seems to have been arrived at in the contest between the parties who originally claimed the right to be appointed administrator, and on the thirteenth of May, 1873, the public administrator, alleging that more than two years had elapsed since he was appointed to take charge of the estate; that since that time the contestants had made no effort to close their contest, but had, in fact, abandoned it; and that he, the public administrator, was in charge of the estate, and unable to settle it for the reason that he had no authority to sell property, which it was necessary to do, the succession being in debt; prayed to be confirmed as administrator, with power to sell property and pay debts, and that the contest between the rival applicants for the administration be declared abandoned.

The order was made as prayed for. Mrs. Mary A. Bisor, alleging herself to be a creditor in her capacity as administratrix of the estate of her former husband, Halloway, prayed the parish court to order the public administrator to sell the property of the succession. Service was made on the administrator, who accepted the same and said that he made no objection to the demand. Whereupon the court ordered the administrator to sell as much of the property of the succession as might be necessary to pay the debts thereof. The order was made on the eighteenth of August, 1873.

The sale was made pursuant; to this order, and not under the order of the eleventh of May, 1871, above referred to. At the sale the defendants, through their counsel, notified the parties present that the administrator was selling their property and that the purchaser would acquire no title.

At the sale the present plaintiffs became the purchasers. The defendants are in possession. Plaintiffs claim under the deed from Vaughn, public administrator. Defendants say that Vaughn was without authority to sell, because his appointment as administrator was an absolute nullity. Vaughn’s appointment was made by a court of competent jurisdiction. The validity of his appointment can not be inquired into collaterally. They next object to Vaughn’s title, because it purports to to be from Vaughn, curator, instead of from Vaughn, public administrator. But it seems to us immaterial whether the representative of the succession designated himself as curator or administrator. The point to be determined would be, not the title by which he designates himself, but the power which he had to represent the succession, and whether the deed comes from one who calls himself curator or administrator is of little consequence. The defendants next set up title to the property which, they say, they acquired from their father, John Turner, before his death.

The first evidence which they produce in support of their claim is a note, which is as follows:

“$6200. Line, Louisiana.
“ One day after date we, or either of us, promise to pay to John Turner or bearer the sum of six thousand two hundred dollars for a tract of land known as the Dockey place, with eight per cent interest from date until paid.
“ August 23,1869.
“(Signed) “JACKSON TURNER,.
“OBADIAH TURNER.”

This note was recorded in the notarial book in the parish of More-house. This note is certainly no title. It is no act of sale, and it transfers no property. The fact that it was recorded gives to it none of the forms required for the transmission- of real estate, nor does it change the character of the instrument, which is nothing more than an unconditional obligation to pay a certain sum of money.

The next evidence of title which they bring forward is a document which,' they say, was intended to be the will of John Turner, their vendor, in which it is declared that the land in question is to be equally divided between the plaintiffs after they shall have paid for the same; i. e., after their note, which we described above, shall have been paid. If we admit that the document was properly received in evidence, notwithstanding the objections of the plaintiffs, still the document is not evidence of any sale. It is not even a donation, for the document expressly says that the proceeds of the note, when paid, are to be distributed equally amon'g all his children. The most that can be said of the defendants’ title, so far, is that they, perhaps, held under a verbal sale. But a verbal sale, or other disposition of real estate is only good against the vendor or vendee who confesses it when interrogated on oath. O. C. 2275. The document now relied on-is neither a confession under oath nor an answer to interrogatories. It can not, therefore, as to third parties, at all events, be considered as a conveyance of real estate or an acknowledgment of the transfer thereof.

On the eighteenth of October, 1869, the defendants’ co-heirs went before the recorder of the parish of Morehouse, and, acknowledging that their father had sold the land in question to them (defendants) without any formal deed having been made thereto, sold the land to the defendants. The consideration of this sale seems to have been the promise to pay the note above described, to secure the payment whereof they reserved a mortgage. This deed was recorded. But at the time this deed was passed the succession of John Turner was under administration. In this condition of affairs the heirs were not competent to make deeds one to the other of property belonging to the estate in which they had only a residuary interest. They had no power to transfer, consequently their transfer conveyed no title.'

They finally contend that they have paid the note which they gave as the price of the land to the administrator of the succession which was opened in Arkansas, and this they claim makes their title good.

But we have seen that they had no title. A payment, therefore, to the administrator would not create a title, or even complete a defective one.

Mrs. Louisa Echols intervened in the suit and claims to be owner of -a part of the land in dispute, she having purchased from Jackson Turner. But as we have come to the conclusion that Jackson Turner had no title, and as Mrs. Echols has acquired nothing by prescription, it follows that Mrs. Echols has no title.

It therefore appears:

First — That the succession of John Turner was opened in the parish of Morehouse.

Second — That Vaughn was appointed administrator thereof.

Third — That an inventory of the property belonging to the succession was regularly taken, upon which inventory figures the property in dispute.

Fourth — That the property mentioned as belonging to the succession was sold, at the instance of a creditor thereof, by the administrator.

Fifth — That the sale was made in conformity with the requirements of the law.

Sixth — That the plaintiffs became .the purchasers.

It follows, we think, that their title thereto is good.

It is therefore ordered, adjudged, and decreed that the .judgment of the district court be avoided, annulled, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs, decreeing them to be the owners of the property described in them petition, the costs of both courts to be borne by defendants.

Rehearing refused.


text:
    No. 675.
    A. H. Leonard et al. vs. W. T. Smith et al.
    The question is whether a minor, who was never represented by a tutor during his minority, loses any oí his rights or property by prescription, or by a failure to reinscribe liis mortgage within ten years pf its inscription, the mortgage having been given, and the ten years having expired, before the term of his minority. It must, however, be stated that the succession of the minor’s father was represented by an administrator, who was in office when the prescription, if any, accrued.
    There is, of course, a difference between a debt and the mortgage which is given to secure the payment of that debt. Acknowledgment of the debt takes it out of preserixrtion; but acknowledging a debt does not operate as reinseriirtion of the mortgage which was given to secure the payment of the debt. They are substantial and distinct acts, each differing from the other, and producing different results. Therefore, to keep alive both the debt and the mortgage which is on the verge of being prescribed, the debt must be acknowledged and the mortgage must be reinscribed.
    The position taken by defendant that, as he was a minor and unrepresented when prescription attached, he is not affected by the fact of non-inscription of the mortgage, is not correct, as the facts of the case do not bring him within the line of protection which ho invokes.
    The succession of the minor’s father was represented bv an administrator. It is true the administrator has filed what he calls a final account, which has been ho-mologated, but he has not been discharged from his trust, and, until discharged, hi s office continues; so that the succession was represented, and the note with regard to which this litigation springs was the property of the succession. If the administrator has failed to do what was necessary to collect the note and secure the mortgage attached to it, he may be responsible for his neglect, but his neglect can not deprive others of rights acquired even in consequence of his neglect.
    As regards the fact that the mortgage was declared to have been canceled in the • books of the mortgage office by the plaintiffs, that fact is of no significance. The . mortgage would have prescribed without any entry having been made relative thereto. It was the lapse of time which prescribed it, and not the declaration that It was canceled.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      A. H. Leonard, for plaintiffs and appellees.

      Land & Taylor, for defendants and appellants.
   Morgan, J.

William T. Smith obtained judgment against L. M. Nutt,' the judgment recognizing and enforcing a mortgage on a certain piece of property, under which judgment he caused the property mortgaged to be seized.

Mark Parsons, one of the plaintiffs herein, alleges that a portion of the property seized belongs to the community which existed between his wife, deceased (whose succession he administers), and himself, it having been purchased from Nutt in April, 1866.

Leonard claims that he is part owner in indivisión of the undivided quarter interest in parts of lots one and two of the lands seized, which was formerly owned by Nutt* and which he, Leonard, acquired at a sheriff’s sale made to effect a partition in the suit of Crain vs. Kendall et al.

They both aver that the judgment rendered in the case of Smith vs. Nutt can not affect them or their rights, as they were not parties thereto. They aver that the mortgage claimed by Smith in the case of Smith vs. Nutt.was prescribed when the suit was instituted; that Smith attempted to reinstate the mortgage by causing the same'to be reinscribed, but that the reinscription could not affect their rights; that the mort••gage was extinguished by prescription.

Leonard alleges that he purchased the property at sheriff’s sale under a mortgage certificate which declared that no such mortgage as the one which was claimed by Smith existed on the property bought by him; that the proceeds of the sale were paid over to the sheriff, and that if Smith had any mortgage on the property he should have looked to the proceeds of the sale, and can not now proceed against the property, which was legally and properly sold.

Both plaintiffs allege that the action of Smith and the sheriff, in attempting to sell their property, is illegal, and they enjoin the sale thereof. Smith admits that he sued Nutt and that judgment was rendered in his favor, and he avers that all the allegations contained in his petition in that suit are true, and he annexes that petition to his answer and makes them a part thereof. He further avers that his special mortgage on the property in question was illegally canceled by order of the present plaintiffs during his minority, when he was unrepresented by a tutor, and that said cancellation is absolutely null and void. He avers that his judgment against Nutt, recognizing and ordering his special mortgage to be enforced, was a valid judgment, and binding on the plaintiffs herein, who, he avers, were entitled to no notice of the proceedings, as the act of mortgage contained the pact 'de non alienando. He further avers that the mortgage was not prescribed, as prescription did not run against him while he was without a tutor, guardian, or other representative. He prays for a dissolution of the injunction, with damages.

Defendant’s petition in his suit against Nutt represents that his father died in 1860, leaving him a minor of seven years of age and an orphan; ■that one McCloud was appointed administrator of his father’s succession; that he filed an account of his administration in March, 1867, which account was a final one and was duly homologated; that among the assets ■of his father’s succession, of which he was sole heir, was a promissory note drawn by L. M. Nutt and N. E. Wright, dated twenty-third February, 1860,.payable to the order of his father on the first of January, 1861, for the sum of twenty-one hundred and fifty dollars, which note was secured by mortgage upon the property which is now before us; that Wright is dead and his succession insolvent; that Nutt had made various payments on said note up to the first of January, 1864, which payments interrupted prescription thereon, and that on the first of January, 1874, lie made other payments and acknowledged that the note was due. He averred that his mortgage had never become prescribed, because he was. a minor from the date the note became due until the fifteenth of June,, 1874, for the reason that he never had any tutor appointed to represent him, and because he was incapable of acting or of understanding his rights during his minority.

The question which the appellant presents for our solution is, can a minor, who was never represented by a tutor during his minority, lose any of his rights or property by prescription, or by a failure to rein-scribe his mortgage within ten years of its inscription, the mortgage having been given and the ten years having expired before the term of his minority ? To which, however, must be added the statement that the succession of the minor’s father was represented by an administrator, who was in office when the prescription, if any, occurred.

There is, of course, a difference between a debt and the mortgage which is given to secure the payment of that debt. Acknowledgment of the debt takes it out of prescription, but acknowledging a debt does not operate as a reinscription of the mortgage which was given to secure the payment of the debt. They are substantive and distinct acts, each differing from the other, and producing different results. Acknowledgment of the debt revives it. Beinscription of the mortgage keeps alive the security. But the debt may exist, and the security may be discharged. Therefore, to keep alive both the debt and the mortgage, which is on the verge of prescription, the debt must be acknowledged and the mortgage must be reinscribed. But the defendant contends that, as he was a minor, and unrepresented when prescription attached, he is not affected by the fact of non-reinscription of the mortgage.

If we were to admit the correctness of this position, with regard to which, however, we express no opinion, still the facts of this case do not bring him within the line of protection which he invokes. The succession of his father was represented by an administrator. So far as this record discloses, it is still under administration. It is true the administrator has filed what he terms a final account, which has been homolo-gated, but he has not been discharged from his trust, and, until discharged, his office continues; so that the succession was represented. The note with regard to which this litigation springs was the property of the succession. It was the duty of the administrator, who had it in his hands, to collect it, and to preserve the mortgage by which its payment was secured. If he has not done so, he maybe responsible for his neglect, but his neglect can not deprive others of rights acquired even in consequence of his neglect.

As regards the fact that the mortgage was declared to have been canceled on the books of the mortgage office by the plaintiffs, that fact is •of no significance. The mortgage would have prescribed without any entry having been made relative thereto. It was the lapse of time which destroyed it, and not the declaration that it was canceled.

We think the judgment of the district court, which was in favor of the plaintiffs, is correct.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 617.
    Christopher Chaffe vs. Trustees Minden Female College.
    The main defense is that the plaintiff was at the time the contract sued upon was entered into, and is now, a member of the Minden Board of Trustees, and that he could not make a contract with said trustees or with their agents, and that the contract was null and void. This defense is without any force. There is nothing in law or in morals that could prevent the plaintiff from entering into a contract with the defendant represented by a committee duly authorized thereto. No fraud is alleged.
    If there is any bad faith exhibited in this case, it seems to be on the part of the defendants, who, having entered into a contract with plaintiff, have received the fruit of his labor and materials, and refuse to pay for the same under the pi-e-text that a person, whose property and labor they are enjoying, had not the capacity to contract with themselves — a fact known to them when the contract was made, if it be a fact.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      L. B. Watkins, for plaintiff and appellee.

      George ■& Taylor, for defendants and appellants.
   Ludeling, C. J.

The plaintiff sues the defendants for the balance of an .account for work done by plaintiff for defendant, under a contract. The defense is that C. Chaffe was, at the time the said contract was entered into, and is now, a member of the board of trustees, and that he could not make a contract with said trustees or with their agents, and that the contract was null and void. They further allege that the work was not done according to contract.

The contract was signed by the plaintiff and a committee appointed by the trustees and authorized to make a contract for repairs upon the •college buildings, and which work was to be under the direction and .supervision of the committee. The work appears to have been done. The whole cost of the work was $2543 80, two thousand dollars whereof had been paid before the institution of this suit.

There is nothing in law or in morals that would prevent the plaintiff from entering into a contract with the defendant represented by a committee duly authorized thereto. No fraud is alleged. Christopher Chaffe, individually, w$s not the agent or mandatary of the defendant; he could not bind or affect the defendant by any act of his. As a member of the board of trustees, he could only act collectively with a quorum of the board and at stated times. 13 La. 527, La. S. Bank vs. Senecal. The only bad faith exhibited by this record seems to be on the part of the defendants, who, having entered into a contract with plaintiff, have received the fruits of his labor and his materials; and refuse to pay for the same under the pretext that a person, whose property and labor they are enjoying, had not the capacity to contract with themselves — a fact-known to them when the contract was made, if it be a fact.

It is therefore ordered that the judgment of the lower, court be affirmed with costs of appeal.


author: Lxjdeliítg, C. J.

text:
    No. 649.
    E. W. Warfield vs. George B. Hamlet, Sheriff, et al.
    The appellee lias moved to dismiss this appeal because the appellant has not filed an assignment ol errors. This is no cause for dismissing an appeal, except-•when the record brought up has not been duly certified by the clerk of the lower court as containing all the testimony adduced; or, to be more accurate, the failure to file an assignment of errors is not a cause to dismiss an appeal; but, on the contrary, the assignment of errors is a means to prevent the dismissal of a defective record.
    The only judgment which could have been rendered, based on the failure of the-plaintiff to appear and prosecute the suit, was one of nonsuit, under the recon-ventional demand for damages, the defendants might have insisted upon a trial of the cause, notwithstanding the absence of the plaintiff, but they could not dismiss the main suit and try the reconventional demand afterward. Besides, a. jury had been allowed in the ease, and no trial could legally have been had without a jury, except by consent of parties.
    APPEAL from the Fourteenth Judicial District Court, parish of Oua-chita. Bay, J.

      Cobb & Gunby, for plaintiff and appellee.

      Morrison & Farmer, for defendant and appellant.
   Lxjdeliítg, C. J.

The plaintiff obtained an injunction to restrain the execution of a fieri facias, issued on an alleged twelve-months bond. The grounds of the injunction are, that the instrument styled a twelvemonths bond was not a twelve-months bond, but a mere private agreement, on which no execution could issue, and that no legal sale could be made accordihg to the terms of the advertisement.

It appears that A. G-uson, Jr., obtained a judgment for $806 57 against the plaintiff, and that, execution having issued thereon and having been placed in the hands of the sheriff, he was ordered to return it, for the reasons stated in the following sheriff’s returns:

“ Received in office, April 30, 1874; and on the first day of May, 1874; the plaintiff’s attorneys having taken a consent twelve-months bond in favor of Lehman, Abrams & Co., owner of the judgment and writ in this-case, executed before me, May 1; 1874,1, therefore, return this writ as directed by Morrison & Farmer, attorneys lor plaintiff, owner of the judgment.”

The writ enjoined was issued finder this instrument, and the property was advertised for sale for cash, without appraisement.

On the day fixed for the trial of the injunction, the plaintiff and her attorneys were called at the door of the court-house, and, having failed to appear, the suit appears to have been dismissed on motion of the defendants. But, notwithstanding this action, the defendants appear to have gone on with the trial of their reeonventional demands for damages; and there was judgment in favor of the plaintiff in execution against the plaintiff and her sureties for ten per centum special damages, and twenty per cent general damages. From this judgment the plaintiff and her surety appeal.

The appellee has moved to dismiss this appeal, because the appellant has not filed an assignment of errors.

This is no cause for dismissing an appeal, except when the record brought up has not been duly certified by the clerk of the lower court, as containing all the testimony adduced; or, to be more accurate, the failure to file an assignment of errors is not a cause to dismiss an appeal; but, on the contrary, the assignment of errors is a means to prevent the dismissal of a defective record. C. P. 895, 896, 897. In this case the record is duly certified, and no defect in the transcript is alleged.

The defendants admit in their brief and argument that, on their motion, the plaintiffs suit was dismissed under article 586 of the Code of Practice. They say “ there was no trial of the plaintiff’s injunction, ■x- -x- * There could not be such a trial. It is prohibited by article 536 C. P.”

■Without adopting the legal conclusion of the defendants’ counsel, we assume the fact to be as stated by both plaintiff and defendants, that the suit was dismissed on defendants’ motion because the plaintiff failed to appear to prosecute the suit. The only judgment which could have been rendered, based on the failure to appear and prosecute the suit, was one of nonsuit. “ If, after the cause has been set down for trial, the plaintiff does not appear, either in person or by attorney, to plead his cause on the day fixed for trial, the defendant may require that judgment of nonsuit be rendered against such plaintiff. But such judgment can not be pleaded as res judicata, or in bar of another suit for the same cause of action-, provided, the plaintiff show that he has paid the costs of the first suit.” C. P. 536.

Under the reeonventional demand for damages, the defendants might have insisted upon a trial of the cause, notwithstanding the absence of the plaintiff 5 An. 298; 11 An. 287, 305; 3 La. 103. But they could not dismiss the main suit under article 536 and try the reeonventional demand afterward. Besides, a jury had been allowed in the case, and no trial could legally have been had without a jury, except by consent of parties.

It is therefore ordered and adjudged that the judgment of the lower court be amended by annulling so much thereof as allows damages in favor of the defendants, but without prejudice; and that, as thus amended, the judgment be affirmed. It is further ordered that the costs of appeal be paid by the appellee.


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    No. 619.
    D. H. Sheppard vs. J. H. Scheene et al.
    This suit was instituted by the defendant in injunction, against'the securities on the injunction bond, to recover damages arising out of the alleged improper issuance of the injunction. To this demand the plea of res judicata, is opposed. The judge a quo erred in sustaining it. The present defendants were not before the court, when final judgment was pronounced in the case wherein the injunction issued, and nothing was decided as to them.
    Article 304 of the Code of Practice relative to injunctions applies only to injunctions which arrest a j udgment.
    Actions upon bonds are not prescribed in three years.
    APPEAL from the Eleventh Judicial District Court, parish of Bienville. Trimble, J.

      L. B. Watkins, for plaintiff and appellant.

      J. C. Egan, for defendants and appellees.
   Morgan, J.

In the suit of W. B. Looney, for the use of L. G. Barron, vs. D. H. Sheppard, plaintiff prayed for judgment against the defendant for a'certain sum of money, and also asked for and obtained an injunction prohibiting him from selling, disposing of, or incumbering the land described in his petition.

The defendant signed the injunction bond for twenty-five hundred dollars to secure the payment of such damages as the defendant might sustain in case it should be decided that the injunction improperly issued. Exception was taken to the suit, and a dissolution of the injunction was asked for on several grounds, and damages in the sum of one hundred dollars was prayed for on account of counsel fees. The action of the court on this exception does not appear in the record. In the brief, counsel for plaintiff says, that there was no judgment dissolving the injunction, but that Barron elected to abandon it. On the other hand, defendants’ counsel says in his brief, that the exception was sustained but no damages were allowed. It is certain that in the final judgment no damages are awarded. Indeed, in the decree no mention is made of the injunction.

This suit is instituted by the defendant in the injunction against the sureties on the injunction bond, to recover damages arising out of the alleged improper issuance of the injunction. To this demand the defend-' ants pffered the plea of res judicata. The plea was sustained and the suit dismissed.

The judgment is erroneous. The present defendants were not before the court, when final judgment was pronounced in the case wherein the injunction issued, and nothing was decided as to them.

Defendants argue that the question of damages having been put at issue by the pleadings, and a general judgment having-been rendered without any reservation as to the plaintiff’s rights, the judgment covers all the issues raised in the pleadings. But in this case the principal on the bond is not sued, and in the other case the sureties were not properly before the court.

But they contend that they must be considered as having been before the court and parties to the judgment. They rely in support of their position upon the 304th article of the Code of Practice, which declares that “ on the trial of the injunction the surety on the bond shall be considered asa party plaintiff in the suit, and in case the injunction be dissolved, the court in the same judgment shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of ten per cent on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount be proved.”

The article relied on relates to injunctions which arrest a judgment.

In Borie vs. Borie, 5 La. 87, the court said : “ The judge erred in allowing special damages to the defendants against the plaintiff and her surety ; no law authorizes such a decree in this case ; the surety was not in court; the court could not sentence her, neither for damages, nor for costs; if the defendants suffered damages, admitting that the injunction was wrongfully sued out, they could not be recovered, but by a distinct and separate action on the bond.” The same doctrine has been repeatedly held. 9 An.' 303 ; 11 An. 92, 524, 525.

The defendants urge that, when a plaintiff in injunction partially succeeds, and where the equitable remedy of injunction has not been palpably abused, damages will not be allowed, and that, inasmuch as the plaintiff in injunction had judgment in his favor, damages can not be awarded against the sureties on his injunction bond. On the merits, this would probably be a good defense, but the merits are not before us. We have only to decide whether or not the plea of res judicata was well taken. We think it was not.

Defendants also pleaded the prescription of three years. The point was not urged in argument or in the brief, and we conclude that it was .abandoned. At all events, it is not tenable. The action is not one arising ex delicto, but is upon a bond. Actions upon bonds are not prescribed in three years.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the case-be remanded to be proceeded in according to law, appellees to pay costs, of appeal.


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    No. 621.
    Abney, Love & Co. vs. Mrs. S. H. Whitted.
    The claim o£ plaintiffs is for a sum exceeding five hundred dollars, and the fact that in the answer and as a witness defendant admitted being indebted for a less sum did not change the demand of plaintiffs. Had the amount admitted been certain and plaintiffs taken a judgment therefor, and thus left a small amount only in contest, the jurisdiction would have been affected. It is the demand of plaintiffs', that gives jurisdiction.
    The simple act of giving a mortgage to a creditor to secure his claim does not of itself constitute a ground for the writ of attachment.
    APPEAL from the Seventeenth Judicial District Court, parish of Bed Biver. Glxapin, J.

      J. 3?. Pierson, for plaintiffs and appellees.

      L. B. Watkins, for defendant and appellant.
   Howell, J.

A motion is made to dismiss this appeal because, the defendant, having on the trial confessed the greater portion of the debt sued for, leaving a balance in dispute of less than five hundred dollars, this court is without jurisdiction.

The claim of plaintiffs is for a sum exceeding five hundred dollars, and the fact that in the answer and as a witness defendant admitted being indebted for a sum less than that sum did not change the demand of plaintiffs. Had the amounts admitted been certain and plaintiffs taken a judgment therefor, and thus left a small amount only in contest, the jurisdiction would have been affected. It is the demand of plaintiffs that gives jurisdiction.

Motion refused.

On the Mebits.

The suit is on an open account for the year 1872, amounting to $988 35, reduced by credits to $548 21, and consisting of goods, wares, and merchandise, among them paints, oils, nails, wall-paper, window-sash, locks, hinges, and other articles to build the dwelling-house of defendant, in the town of Coushatta, on a lot bought of T. W. Abney, and which is described in the petition. It is averred that the account sued on shows that plaintiffs paid and advanced to the mechanics and workmen who erected said building, upon the order and agreement of defendant,money and merchandise to enable defendant to erect said building, for which they have a legal and recorded privilege on the same; that defendant has mortgaged to Lisso & Brother her tract of land on Bed river, and her-house and lot in Coushatta, inherited from her father, and has given them confessions of judgment to a large amount, while she has refused to secure plaintiffs by mortgage or confession of judgment, thus giving to Lisso & Brother, a part of her creditors, an unfair preference over petitioners as creditors, and they prayed for and obtained an attachment and for judgment for $548 21 with interest, for maintaining the attachment, recognizing and enforcing their privilege, and for the sale of the property attached to satisfy their claim.

The answer sets up want of jurisdiction of the district court; the general denial; admits a portion of the account less than five hundred dollars, which defendant is willing to pay; alleges numerous errors therein; denies having given any unjust or fraudulent preference to any creditors or having had any interest to defraud plaintiffs or any other creditor; sets out that the contract for building her house was in writing; that she is not responsible for materials furnished, if any, by plaintiffs, who have no privilege.

Judgment was rendered for the amount admitted to be due and sustaining the attachment, recognizing attaching creditors’ privilege on the property seized, and ordering it to be sold to pay the judgment, from which defendant appealed.

She complains that the grounds set out in the petition do not authorize the attachment, as it is not alleged or proven that -the giving of the mortgage was with the intent to defraud her creditors or to give the mortgagees a fraudulent or unfair preference. No. 4 of art. 240, C. P., under which the -writ issued, reads: “ When he (the debtor) has mortgaged, assigned, or disposed of, or is about to mortgage, assign, or dispose of his property, rights, or credits, or some part thereof, ivith intent to defraud his creditors, or give an unfair preference to some of them.” The intent is the essential ingredient, and, we think, neither the petition nor the evidence shows such intent in the defendant. The simple act of giving a mortgage to a'creditor to secure his claim does not of itself give a ground for the writ. There is no evidence of recording a privilege. What we said on the motion disposes of the question of jurisdiction of the district court.

It is therefore ordered that so much of the judgment appealed from as sustains the attachment with recognition of attaching creditors’ privilege on the property seized, and orders it to be sold for same, be reversed and annulled, and in other respects affirmed. Appellees to pay costs of appeal.


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    No. 655.
    Succession of E. P. Overby. Final Account of Public Administrator. Opposition of E. D. Duckworth.
    The motion filed on the trial of this suit to dismiss the opposition on the ground that the account of the public administrator had been homologated, and the opposition had been dismissed, can not be maintained. It is sufficient to say that the judgment dismissing the opposition and homologating the account was appealed from, and reversed by this court.
    As to the other point, that the term of the office of the public administrator had expired, it is ectually untenable. It is repugnant to reason and to justice to suppose, that one who administers a succession by virtue of his office of public administrator, can escape responsibility for his maladministration, because he no longer holds the office of public administrator; and whether or not his successor in the office of public administrator should have been a party to this suit, as prayed for by opponent, it is clear that Vaughn, the former administrator, was before the court for all the purposes of this suit.
    The judge a quo erred in permitting the filing of an answer to the opposition by another creditor, and after the case had been fixed for trial. Replications are not allowed in pleading in this State. The opposition is in the nature of an answer, and no answer to that should have been allowed, much less by another creditor, and after the case had been fixed for trial.
    APPEAL from the Parish Court, parish of Morehouse. Wheeler, J.

      Todd & Brigham, for Duckworth, opponent and appellee.

      L. G. Parsons, for administrator, appellant.
    D. C. Morgan, for Taylor and Churchill, creditors and opponents.
   Ludeling, C. J.

In 1865 or 1866, H. Overby was appointed administrator of the succession of E. P. Overby. The property of the estate was inventoried at $12,469 59, forty-one hundred dollars whereof was the appraised value of the real estate, and the remainder was the appraised value of notes and personal property.

In 1868 or 1869, H. Overby filed a provisional account. In 1869 H. Overby died. The records of this succession were destroyed by Are. In 1870, W. H. Yaughn, public administrator, was appointed administrator of said succession. He caused a new inventory to lie made, the inventory previously made having been destroyed. In this inventory the lands were appraised at $6555 53, and besides the lands there figured on the inventory only the following assets: A rent note for $325 25 and a note for $225, appraised at their face value; a note for $210, not appraised, and a claim against the former administrator, H. Overby, the amount whereof was not stated, and it was not appraised. Shortly after his appointment the public administrator obtained an order to sell property to pay debts. The order is as follows: “Let the prayer of the foregoing petition be granted, and it is ordered that the sheriff of the parish of Morehouse, after due and legal advertisement, proceed to sell, at the court-house door, in said parish, in accordance with articles 990 and 991 of the Code of Practice, all the property belonging to said succession, consisting of land, shown by and described in the inventory thereof, and due return make.”

The public administrator caused the lands to be sold under this order, and also the claim of the succession against H. Overby, the former administrator. This claim was adjudicated for §116.

On the first of June, 1872, Yaughn, public administrator, filed his account, which was opposed by E. D. Duckworth, on the following grounds: That the opponent was a creditor of the estate for §1050, with interests and costs, but was not placed on the account and tableau; that the administrator should be charged with the amount due by the former administrator, H. Overby, to the succession; that he should have collected this debt, and was never authorized to sell it, and the sale is null and void. And he opposed all the claims allowed and placed on the tableau as unjust, and pleaded prescription against them.

On the trial of this suit a motion was filed to dismiss the opposition on the grounds that the account of the public administrator had been homologated, and this opposition had been dismissed, and that the term of the office of the public administrator had expired. It is sufficient to say that the judgment dismissing the opposition of Duckworth and homologating the account was appealed from, and this court reversed said judgment.

On the second point, we will remark it is repugnant to reason and to justice to suppose, that one who administers a succession by virtue of his office of public administrator can escape responsibility for his maladministration because he no longer holds the office of public administrator. And whether or not Schardt, his successor in the office of public administrator, should have been made a party to this suit, as prayed for by opponent, it is clear Yaughn, for all the purposes of this suit, was properly before the court. C. C. 1195.

On the trial two bills of exceptions were taken. The first was to the ruling of the court permitting the filing of an answer to the opposition by another creditor, and after the case had been fixed for trial. Replications are not allowed in pleading in this State. The opposition is in the nature of an answer, and no answer to that should have been allowed, much less by another creditor, and after the case had been fixed for trial. The objections urged to the evidence received in the second bill of exceptions go to its effect rather than to its reception.

On the merits, the judgment in favor of the opponent and against Yaughn, the public administrator, for the amount of his debt, is clearly correct. Eor the credit of the administration of justice in this State, we trust that there is no parallel case to this in its annals.

This record shows that the succession was opened in 1866, that the property was inventoried at §12,469, of which upward of eight thousand dollars consisted chiefly in chirographic and mortgage notes, and the balance in real estate, which was sold in 1871 for $6555 53; that during one year the property rented for fourteen hundred dollars, during another year for one thousand' dollars, and during about two years the administrator, H. Overby, cultivated it for his own advantage; that before his death, in 1869, H. Overby filed a provisional account, which showed that he had in his hands about four thousand dollars which he had collected, and that he had paid no debts of the estate, or only to a very small amount, if any; that the public administrator, shortly after his appointment, caused the lands to be sold t<S pay debts, which consisted exclusively of the widow’s claim under the homestead,law, law charges, attorney’s fees, taxes, and commissions, with the solitary exception of a debt in favor of Taylor & Churchill for less than $1041 and interest, and that the entire proceeds of the sale, $7106 53, were absorbed in paying said charges and debts. The record shows that no effort was made to collect from the former administrator the amounts collected by him, or for which he was responsible, notwithstanding his own attorney, who had also been the attorney for the former administrator, testified in this case that the provisional account filed by Overby showed he was indebted to the estate upward of four thousand dollars, and the inventory and other evidence in this record shows he was accountable for a much larger sum than that, and that his bond was perfectly good. The record further shows that he caused to be sold, without any authority, this claim against the administrator for the paltry sum of $116, without any order of court or appraisement. Such dereliction of duty can not be countenanced by courts of justice.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


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    No. 629.
    Peter Morgan vs. William G. Shelton.
    It appears that about the first oí May, at night, the plaintiff, being intoxicated, used language which provoked the defendant, who, in a moment of passion, knocked him down. The next day the plaintiff left and obtained work on another plantation for the balance of the year, while not justifying defendant in the use of violence, this court can not regard it, under the circumstances, as a cause on the ■part of plaintiff for abandoning his contract, the difficulty having no connection with said contract.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      D. C. Morgan, for plaintiff and appellant.

      Newton & Hall; for defendant and appellee.
   Howell, J.

This is a controversy between the plaintiff, as laborer, and the defendant, as proprietor, for the crop of 1873, and services of the former for a part of the year 1874, plaintiff claiming $1054 50 for the portion of crop of 1873 falling to and not received by him, certain sums received by defendant from other parties for and not paid to .plaintiff, services of the latter in the crop of 1874, or said amount as damages for assaulting and forcing plaintiff to leave, and a cow and calf illegally retained by defendant; the defendant claiming in reconvention $15117 due him on account, and five hundred dollars damages resulting from plaintiffs leaving without cause. From a verdict and judgment in favor of defendant for $52 77 the plaintiff has appealed, and the defendant asked to have the judgment amended by increasing it to $646 07.

On the fifteenth of January, 1873, the parties entered into a written contract to the effect that defendant should furnish the land, team, and tools for making a crop, and plaintiff furnish the labor, giving all diligence, attention, and care to the crop and team; one half the crop, when gathered, to go to said Shelton, and sufficient amount at the same time deducted from the other half to pay said Shelton for supplies and all other dues from the second party; then the remainder of the second half goes to said Morgan or second party.” ' »

The crop, as alleged by plaintiff, consisted of fourteen bales of cotton, three hundred bushels of corn, and two thousand pounds of fodder, of which he received three bales of cotton, one hundred bushels of corn, and his portion of the fodder, leaving only fifty bushels of corn and the division of the cotton in dispute. The plaintiff claims that he is entitled to the half of twelve bales raised, as he says, under the written contract, and to the whole of two other bales raised under another agreement. There is a conflict of evidence on this point, and it devolved on the plaintiff to make it clear. In view of the written contract and the other evidence, we must conclude that the whole crop was to be equally divided. Taking this as the quantity of cotton to which plaintiff is entitled, and fifty bushels of corn, with the other items which, in the brief, it is contended are proven, the sum due him is $447 50, not including the claim for damages. He allows credits in favor of defendant to the amount of $475 60, which leaves a balance of $28 10 due the latter.

The alternative claim of $250 for services on the crop of 1874, or damages for being forced to - abandon the crop, is not, in our opinion, sustained by the evidence. It appears that about the first of May, at night, the plaintiff, being intoxicated, used language which provoked the defendant, who,-in a moment of passion, knocked him down. The next day plaintiff left, and obtained work on another plantation for the balance of the year. While we do not justify defendant in the use of violence, we can nót regard it, under the circumstances, as a cause on the part of plaintiff for abandoning his contract, the difficulty having no connection with the contract.

The difference between the amount $28 10, shown above, and the amount $52 77, allowed by the jury, is so small that we are not inclined, under conflicting evidence in the case, to make any change in the judgment.

Judgment affirmed.


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    No. 654.
    Curatorship of Sarah J. Beecroft, Interdicted. Opposition to Final Account of the Curator.
    The accounts of tho curator of the interdicted, which were filed and homologated previous to the filing of the last tableau, are, according to the provisions of the Civil Code, prima facie correct, but they do not form res judicata.

    The accounts are presumed to be correct, unless the contrary be shown, but this , may be shown on opposition to the final account by the accounts themselves or by other testimony, and if these accounts disclose charges which are evidently illegal or exaggerated, this court can notice the fact and correct them.
    APPEAL from the Parish Court, parish of Morehouse. Wheeler, J.

      C. T. Dunn, for opponent and appellee.

      8. G. Parsons, for curator and appellant.
   Morgan, J.

S. J. Beeeroft was interdicted on the petition of J. T. Payne. W. J. Walt was appointed her curator. An under curator was also appointed.

The curator took upon himself the administration of the interdicted’s property, and filed several accounts. Subsequently, the judgment of interdiction was annulled, and the curator was ordered to file a final account of his administration, which he has done.

The party who had been interdicted opposed the homologation of tho account, and has included in her opposition objections to his former accounts. To the latter oppositions the defendant excepts the plea of res judicata. This plea can not be sustained.

“ The person interdicted is, in every respect, like the minor who is under a tutor, both as it respects his person and estate; and the rules respecting the tutorship of the minor, concerning the oath, the inventory and the security, the recording of the legal mortgage, the mode of administering, the sale of the estate, the commission on the revenues, the excuses, the exclusion or the deprivation of the tutorship, the mode of rendering the accounts, and the other obligations apply, with respect to the curatorship of the person interdicted.”

“ The tutor is bound to render an annual account of Ms administration, reckoning from the day of his appointment. This account shall be rendered contradictorily with the under tutor. The judgment homologating the account shall be prima facie evidence of the correctness of the account homologated in any settlement which may afterward be made with the minor.” O. 0. 366.

. The accounts filed and homologated previous to the filing of the last tableau are, therefore, prima facie correct, but they do not form res ¡judicata. But the accountant contends that if his former accounts are not vested with the authority of the thing adjudged, they are so far obligations on the parties that they can not be attacked collaterally on an opposition to a subsequent account, but only by direct action.

The accounts are presumed to be correct, unless the contrary is shown. But we -think that this may bo shown on opposition to a final account by the accounts themselves, or by other testimony, and that if these accounts disclose charges which are evidently illegal or exaggerated, we can notice the fact and correct them.

The most important question in the case is whether the interdicted should pay the costs of her interdiction; and, if so, what amount she should pay.

She was not interdicted at the suit of the curator. With the proceedings which led to that result he had nothing to do. He was appointed curator upon the recommendation of a family meeting, by a judge of competent jurisdiction. He certainly can not be charged with the expenses entailed by that litigation. He was, however, bound to see that these expenses were confined within a reasonable limit. It is true he filed accounts showing the payments which he made, and that these accounts were.homologated. But the accounts wore of his own filing, and the amounts thereon were set down by him. That they wore out of proportion to the services rendered we think is unquestionable. The same remarks'apply to other items on the accounts.

The parish judge has rendered an elaborate opinion, in which he has scrutinized these accounts, and from his judgment both parties have appealed.

A careful examination of the opinion as well as of the facts upon which it is based has satisfied us that his judgment was well rendered.

Judgment affirmed.


author: Mobgan, J.

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    No. 685.
    John Phelps & Co. vs. Horace Boughton.
    The jurisdiction oí the appellate court does not attach until the appeal bond is Hied. But it necessarily follows that, when the appeal bond is filed, the appellate jurisdiction does attach. When the appellate jurisdiction attaches that of the district court ceases.
    Now, plaintiffs applied for an appeal and perfected their appeal. Between the time of their motion for an appeal and the perfection thereof, they proceeded as - though they proposed to acquiesce in the judgment. But wlien they filed their bond, they perfected their appeal, and that appeal must date from the day on which it was granted. Therefore plaintiffs must be considered as having taken their proceedings after their appeal was granted. But at that, time the district. eourt'had ceased to have jurisdiction. It follows that all of their subsequent proceedings are nullities.
    ABPEAL from the Tenth Judicial'District Court, parish of Caddo. Looney, J.

      Land & Taylor, for plaintiffs and appellees.'

      Duncan & Moncure, for defendant and appellant.
   Mobgan, J.

Boughton obtained judgment against Ross Wilkinson. Phelps & Co. sued Boughton, who was an absentee, and garnisheed Wilkinson and the clerk of the court, who waived service of the interrogatories, and voluntarily answered them. Boughton, through counsel, took a rule to dissolve the attachment, and to release his judgment against Wilkinson therefrom. The motion was maintained, without prejudice to the right of plaintiffs to issue new process. This judgment was rendered on the second of January, 1875. On the same day an appeal was asked for and allowed. On the same day also, new citations together with copies of petition and interrogatories issued and were served on the clerk of the court on the day they were issued, and on Wilkinson on the eleventh of the same month.

On the thirteenth of January the plaintiffs filed their bond for a sus-pensive appeal. This court affirmed the judgment of the district court as regards the dissolution of the attachment.

Proceedings were carried on subsequently under the citation, and interrogatories issued on the second of January.

The defendant contends that at the time the second process of garnishment issued, the district court had been divested of its jurisdiction by the appeal, and, consequently, that the second seizure was an absolute nullity.

Plaintiffs contend that there was no appeal, because there was no bond. They are right in their position that the jurisdiction of the appellate court does not attach until the appeal bond is filed. But it necessarily follows that, when the appeal bond is filed, our jurisdiction does attach. When our jurisdiction attaches, that of the district court ceases.

Now, they applied for an appeal and perfected their appeal, Between the time of their motion for an appeal and their perfection thereof they proceeded as though they proposed to acquiesce in the judgment. But when they filed their bond they perfected their appeal. From what period, then, did their appeal date ? From the day, we think, upon ■which it was granted. They must then be considered as having taken their proceedings after their appeal had been granted. But at that time the district court was without ¡jurisdiction. It follows that all of their ■subsequent proceedings are nullities.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the attachment herein be set aside, plaintiffs to pay thé costs in both courts.


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    No. 626.
    The State of Louisiana vs. James B. Thomas.
    'The judge a quo did not ei-r-when admitting the evidence objected to. It was necessary to establish that the property stolen belonged to some one, other than the defendant; and what the defendant had sworn to in a j udicial proceeding against the ownership thereof was good evidence.
    'The judge a quo erred in permitting a witness to prove certain confessions made by the defendant to one Davis, which confessions were not made in the presence of witness, and which he only knew through Davis. It was the weakest of hearsay evidence. The facts, if they existed, should have been established by Davis, who was in court.
    The court below did not err when refusing to charge the jury that the value of the horse alleged to have been stolen should have been established. The statute declares horse-stealing to be a crime, and this without regard to the value of the animal stolen.
    'The judge a quo properly overruled the objection to the testimony of Davis as to confessions made by the defendant to him, which objection was based on the ground that the witness could not state that he remembered all the confessions which the accused had made, but only some of the particular points thereof. The objection went to the effect of the testimony, and not to its admissibility.
    'The State should not have been permitted to impeach its own witness. This was of some eonseauence, as the testimony was introduced for the pur-pose of identifying the stolen horse. ' ■
    The defendant having offered to establish and having established by two witnesses that the reputation of Davis, a State witness, was bad as to veracity, the judge a quo erred in instructing the jury to disregard the testimony, on the ground that the witnesses had not heard a majority of the people in the neighborhood of the impeached witness express their opinion of his character. The testimony was admissible, and it was for the jury to determine whether it was sufficient or not to do away with his credibility.
    APPEAL from the Twelfth Judicial District Court, parish of Caldwell. Taliaferro, J. Criminal case.

      Daniel B. Gorham, District Attorney, for plaintiff and appellee.

      Hough & Meredith, for defendant and appellant.
   Morgan, J.

The defendant, convicted of horse-stealing, appeals from the judgment which sentences him to one year’s imprisonment at hard labor in the Penitentiary.

First — He excepted to the ruling of the court under which "Wooten, a witness for the State, was permitted to testify as to what the defendant had sworn to in the parish court in the case of Blanks & Wooten vs. Jacob Simmons in regard to the ownership of the horse which the defendant was accused of having stolen. The judge did not err. It was necessary to establish that the property in question belonged to some one other than the defendant, and what the defendant had sworn to in a judicial proceeding regarding the ownership thereof was good evidence.

Second — Tho judge permitted Wooten to prove certain confessions made by the defendant to one Davis, which confessions were not made in the presence of the witness, and which he only knows through Davis. In this there was error. It was the weakest of hearsay evidence. ■ Tho facts, if they existed, should have been established by Davis, who was in court.

Third — -The defendant requested the judge to charge the jury that the value of the horse alleged to have been stolen should have been established, which charge the judge refused to give. The judge did not err. The statute declares horse-stealing to be a crime, and this without regard to the value of the animal stolen. l It was therefore unnecessary that the value thereof should have been stated in the indictment, and unnecessary to prove it.

Fourth — Defendant objected to tho testimony jof Davis as to confessions made by the defendant to him, on the ground that the witness could not state that he remembered all tho confessions which he had made, but only some of the particular points thereof. The judge did not err. The objection went to the effect of the testimony, and not to its admissibility.

Fifth — Wimberly, a witness for. the State, testified on his examination-in-chief that when he exchanged for the horse alleged to have-been stolen it was “not foundered.” The district attorney then called Cole to establish that Wimberly had told him that the horse was foundered. To the introduction of this testimony the defendant excepted. Tho exception was overruled, and, we think, erroneously. The State should not have been permitted to impeach its own witness. The question was of some consequence, as it .was introduced for the purpose of identifying the stolen horse.

Sixth — Defendant offered to and did establish by two witnesses that the reputation of Davis, a witness for the State, for truth and veracity was bad. The district judge instructed .the jury to disregard the testimony, on the ground that the witnesses had not heard a majority of the people in the neighborhood of the impeached witness express their ■opinion of his character. The judge erred. The testimony was admissible, and it was for the jury to determine whether it was sufficient or not to do away with his credibility.

It is therefore ordered, adjudged, and decreed that the judgment of the district court and the verdict of the jury be avoided, reversed, and ■set aside, and that the case be remanded to be proceeded with according to law and in accordance with the views herein expressed.


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    No. 684.
    John T. Lear vs. William Heffner, Sheriff, et al.
    'Tlie defendant, whose seizure of plaintiff’s property is enjoined by plaintiff, who claims the benefit of the homestead law, contends that the property thus seized is not exempt under the law, on account of the nature of her judgment. This is an error.
    The debt in favor of defendant was not contracted for the purchase price of the. property in Question, but for a loan or loans made by her to the purchaser. The fact that he used the money loaned to him in paying the installments of the price did not make the loans the price, The lender was not the vendor, nor did she acauire her rights from the vendor. Defendant’s construction of the law would make a debt, not secured by any privilege from its nature, superior to all privileges and mortgages. This is not admissible.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Duncan & Moncure, for plaintiff and appellant.

      Nutt & Leonard, for defendants and appellees.
   Howell, J.

Plaintiff enjoins the sale of property seized, claiming it'to be his homestead. The defendant, plaintiff in the execution, contends 'that, under the law, the property is not exempt, because it is shown that her judgment is for money furnished by her to pay the price at which ■plaintiff purchased it. It is true that the money with which the cash portion of the price and the note for the balance thereof were paid, was obtained at different times from the defendant, which was afterward secured by special mortgage. But this did not make her the vendor or give her the rights of the vendor, in whose favor the exception in the ■homestead law invoked was made. The exception reads:

“ Sec. 1692. No property shall, by virtue of this act, be exempt from sale 'for non-payment of taxes or assessments levied pursuant to law, nor for debt contracted for the purchase price of said exempted property, nor for money due for rents, bearing a privilege on said property under existing laws.” Revised Statutes of 1870.

The debt in favor of defendant was not contracted for the purchase price of the property in question, but for a loan, or loans, made by her to the purchaser. The fact that he used the money loaned to him hi paying the installments of the price, did not make the loans the price. The lender was not the vendor, nor did she acquire her rights from the vend- or. Her construction of the law would make a debt, not secured by any privilege from its nature superior to all privileges and mortgages. This is not admissible.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be perpetuated, with costs in both courts.


author: MorgaN, J.

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    No. 624.
    E. L. Bridges vs. A. C. Simonton.
    It is satisfactorily shown that the father of plaintiff received of his wife, plaintiffs mother, now dead, paraphernal property amounting to seventeen hundred dollars, to secure the restitution of which she had a mortgage, which right of mortgage is inherited hy her eliild.
    Defendant can not compensate the debt due by plaintiff’s father to her mother by charging plaintiff with the expenses incident to her board, education, etc. If compensation could be pleaded in such a case, still the law prohibits the tutor from expending more than the revenues arising from the minor’s estate, except with the authority of a family meeting, sanctioned by the judge, of which there is nothing in this record.
    APPEAL from the Eleventh Judicial District Court, parish of Lincoln. Trimble, J.

      J. G. Egan and A. Barksdale & Smith, for plaintiff and appellant.

      E. H. Graham, for defendant and appellee.
   MorgaN, J.

Plaintiff is the daughter of Doctor and Mrs. Quinn. Doctor and Mrs. Quinn were married, and lived in Louisiana. They are both dead, Mrs. Quinn having died when plaintiff was about one year old.

The evidence, we think, shows that during the marriage Dr. Quinn received paraphernal funds belonging to his wife amounting to seventeen hundred dollars. To secure the return of her paraphernal funds the wife had a legal mortgage upon the property of her husband. Her child inherited this right. The claim of the child was recorded prior to the first of January, 1870.

The husband sold a piece of property upon which the wife’s legal mortgage rested. This property is now in the possession of the defendant. She has obtained judgment against the succession of her father for the amount of her claim. This judgment has only been partially satisfied. She seeks to make the property held by the defendant, upon which she alleges the legal mortgage established in favor of her mother exists, responsible for the amount which remains due.

Defendant denies that the amount claimed .to have gone' into the hands of the plaintiff’s father was ever received by him; denies the existence of any mortgage, and avers that, if any mortgage ever existed in her favor, it does not now exist; he avers that the father of plaintiff boarded, clothed, and educated her during a period of thirteen years; that no settlement was ever had between them, and that her expenses largely exceeded the amount received by him from her mother, and he claims that as the money was expended the mortgage which its receipt by the husband created was destroyed. He avers that the land which he holds was purchased by plaintiffs father from one Wafer, who had a legal title to only one undivided half interest in the same, and that, therefore, in no-event is the plaintiff entitled to a mortgage upon more than one undivided half interest in said land. He avers that he is possessor in good faith; that he has placed upon the same valuable improvements: and he claims, should judgment be rendered in favor of the plaintiff, that it should only be extended to one half of the land, and that it be decreed to be sold subject to his claims for improvements.

We have already stated that, in our opinion, it was satisfactorily shown that Quinn received of his wife paraphernal property amounting to seventeen hundred dollars, to secure the restitution of which she had a mortgage, which right of mortgage was inherited by her child. We do not think that the defendant can compensate the debt due by the plaintiff’s father to her mother, by- charging plaintiff with the expenses incident to her board, education, etc. If compensation could be pleaded in such a case, still the law prohibits the tutor from expending more than the revenues arising from the minor’s estate, except with the authority of a family meeting, sanctioned by the judge, of which there is nothing in this record. The evidence. does not support the allegation in the answer that the title which he obtained through the plaintiff’s father was not a valid title for any portion thereof.

Defendant is a possessor in good faith, and is entitled to be paid the value of his improvements. 'But what that value is we can not determine, as there is no evidence in the record upon the subject. The case will have to be remanded in order that their value be ascertained.

It is therefore ordered, adjudged, and decreed that the judgment' of the district court be avoided, annulled, and reversed. And it is further ordered that plaintiff do have and recover judgment against the defendant, recognizing her right of mortgage upon the property described in her petition for the sum of seventeen hundred and fifty dollars, with five per cent interest from the first of January, 1871, until paid, subject to a credit of twelve hundred and fifty dollars. And it is further ordered, adjudged, and decreed that the case be remanded for the purpose of ascertaining the value of the improvements placed by the defendant on the property now declared subject to plaintiff’s mortgage, and that should the property be sold in execution of this judgment, the value of the said improvements, to be ascertained as above set forth, be first paid to him. It is further ordered that defendant pay the costs in both courts.


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    No. 646.
    Succession of George W. Robertson. Application of Heirs to be recognized, and Opposition of the Tutor.
    when a widow is loft in necessitous circumstances, but dies without claiming the homestead privilege from the succession of her husband, who died without descendants, her heirs by a previo us marriage can not claim said privilege in preference to the heirs or creditors of. the said husband.
    It has been held that a widow, to succeed, must be in necessitous circumstances at the time of the death of the husband and at the time of making the claim for the homestead. If this be correct, and there is no doubt that it is, the legal inference is that the right is a personal one, and depends on the condition of the person in whose favor it is granted, and not that it is a right that vests irrevocably in full property in such person and forms a part of her succession which descends to her heirs. It is a right which must be asserted and reduced to possession — be “demanded and received” — before it can be vested in the party. There is a significance in the phraseology of the law — “ shall be entitled to demand and receive.” It is not said thoy shall receive.

    APPEAL from the Parish Court, parish of Ouachita. Baker, J.

      Cobb & Gunby, for the heirs and appellants.

      Morrison & Farmer, for James Constantine, tutor and appellee.
   Howell, J.

The question presented in this proceeding is, when the widow is left in necessitous circumstances, but dies without claiming the homestead privilege from the succession of her husband, who died without descendants, can her heirs by a previous marriage claim said privilege in preference to the heirs or creditors of the said husband? We think not. The law is:

• “The widow, or the legal representative of the children, shall be'enii-fled to demand and receive from the succession of the deceased husband or father a sum, which added to the amount of property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars.” * * * R. C. C. 3252; R. S. 2369.

Under this law it has been held that a widow, to succeed, must be in necessitous circumstances at the time of the death of the husband and at the time of making the claim for the homestead. 26 An. 686.

■ If this be correct, and we think there can be no doubt that it is, the legal inference is that the right is a personal one, and depends on the condition of the person in whose favor it is granted, and not that it is a right that rests irrevocably in full property in such person and forms a part of her succession which descends to her heirs. It is a right which must be asserted and reduced to possession; be “ demanded and received,” before it can be vested in the party. The law, in its spirit and object, simply provides a support for the widow or children of the deceased, which, in some cases, has been designated a charity and in others a bounty, and does not regulate the rights of property or descent. It says they shall be entitled to a sum of money, which shall not, of itself or with any property owned by them, or either of them, exceed one thousand dollars. As said in the case quoted: “It would hardly be contended that if a widow was left in destitute circumstances at the death of her husband, and while his succession was under administration she inherited a fortune, she would nevertheless be entitled to receive from his estate one thousand dollars.” And yet she certainly would be, if the homestead vested in her in full property at the death of her husband. Counsel for the minor children of the deceased wife in this case meet this point squarely. They'say: The only question there can be in this case is, ‘Had the right to the one thousand dollars vested in Mrs. Bobertson prior to her death ? ’ If it had vested, there is no process of reasoning or operation of law by which it left her heirs and lapsed back to G. W. Robertson’s heirs.” With the same reason could it be said, if it had vested in the widow, it would have remained vested in her, although she may have inherited a fortune before she demanded and received the one thousand dollars. It is the necessitous circumstances of the widow or minor children that are to be relieved. If they are relieved by inheritance, death, or otherwise, there is no right to demand the bounty. There is significance in the phraseology of the law, “ shall be entitled to demand and receive.” It is not said they shall receive.

Upon the theory of the counsel for the minors, if the widow should die in one hour after the death of her husband (dying without descendants, but having one thousand dollars in money and ascendants■ in ivant), the widow’s heirs, upon proving that she had nothing in her own right, would recover the one thousand dollars, although she may not have been married more than one day. It was certainly not the intention of the legislator to work such consequences and make such changes in the rights of property and inheritance. “ The language of the statute does not require such a construction, and unless the obvious meaning of this language imperatively demands it, we should not presume that our lawgivers intended to subvert at once the rules of logic and justice.” 11 An. 676.

It is therefore ordered that the judgment appealed from, so far as it decrees that the sum of one thousand dollars vested in full property in the widow, Mrs. F. L. Robertson, and ordered that James Constantine, tutor of the minor children of John C. Jackson, deceased, and said Mrs. E. L. Robertson, deceased, recover and receive from the succession of G. W= Robertson, deceased, said sum, or so much thereof as may be left after paying the law and funeral charges, be reversed; and it is now ordered that said sum or balance be paid to the heirs of said G. W. Robertson, deceased, recognized herein, and as thus amended said judgment be affirmed; costs of lower court to be paid by the succession and those on appeal by appellee.


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    No. 679.
    D. Davis & Co. vs. S. Levy, Jr.
    when an appellee asks loi' an amendment oí the judgment he recognizes the propriety of the appeal, and damages are not allowed.
    It was the intention o£ plaintiffs when depositing a certain amount of money in the hands of defendant, to protect him against paying a bond on which ho had become an obligor. Defendant having the money of plaintiffs in hand and having purchased the bond on which he was an obligor, his purchase inured to the benefit of his co-obligor-s, who had protected him, and is bound to return the surplus over the amount of his purchase. He can not speculate thus on his co-sureties with their funds.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Duncan & Moncure, for plaintiffs and appellees.

      Land & Taylor, for defendant and appellant.
   Howell, J.

Plaintiffs sue on the following instrument:

“Received, Shreveport, April 29, 1873, of D. Davis & Co., of Louisville, Kentucky, the sum of eight hundred dollars, as follows: A check on B. M. Johnson’s bank for five hundred dollars, and a sight draft on Davis & Co. for three hundred dollars, which amount is placed in my hands as security, for which I have signed a certain bond to the sheriff of this parish in a suit No. 8659, D. Davis & Co. against John Scott, for the sum of eight hundred and fifty dollars, and when the said bond is canceled, I will then return to said Davis & Co. said eight hundred dollars.
“(Signed) S. LEVY, Jr.”

Plaintiffs aver that the condition mentioned has happened by the cancellation of said bond, which is now in possession or control of said Levy.

Defendant denies that said bond has been canceled, and avers that the condition precedent has not happened; thatin the said suit of D. Davis & Co. vs. J. K. Scott, plaintiffs attached certain machinery of said Scott, which was sold under order of court on twenty-eighth April, 1873, on twelve-months bond with security; that Davis & Co. by their agent, signed said bond as security for Acker, the purchaser, but, the sheriff requiring a co-surety, said Davis & Co. applied to defendant to become his co-surety on the terms and conditions in said rescript; that said property was turned over by the purchaser to Davis & Co. to indemnify them for their suretyship, and was converted by them to their own use; that the attachment was dissolved, and the suit dismissed, and, plaintiffs not perfecting an appeal, the bond was delivered by order of court to Scott, who sold it to defendant on the nineteenth of J une, 1873, with subrogation of all his rights; that at its maturity Acker was dead and insolvent, and Davis & Co. made no effort to pay it; and he prayed in reconvention for judgment against Davis & Co. for the amount thereof, Davis & Co. answered the reconventional demand, alleging the nullity of the bond,, because the persons acting as sheriff and clerk were intruders into office,, and, if valid, it was extinguished by the purchase by Levy, who can only recover the pro rata of the amount paid by him.

Judgment was rendered against defendant for four hundred dollars, the difference between the amount of the deposit in his hands and the-amount paid by him for the bond. He appealed, and plaintiffs ask that, the judgment be increased to eight hundred dollars, and, in ease it is not increased, that damages be allowed for a frivolous appeal.

Where an appellee asks for an amendment of the judgment, he recognizes the propriety of an appeal, and damages are not allowed..

We think the district judge did justice between the parties. Itwas the-intention of D. Davis & Co. to protect Levy from paying the bond. Having the money of Davis & Co. in hand, and having purchased the bond on which he was an obligor, the purchase inured to the benefit of his co-obligors, who had protected him, and he is bound to return the surplus over the amount of his purchase. He can not speculate thus on his co-sureties with their funds.

Judgment affirmed.


author: MoegaN, J.

text:
    No. 680.
    T. W. Jones vs. City of Shreveport.
    Appellee can not move to dismiss the appeal and at the same time answer it. The answer waives the motion.
    Plaintiff obtained against defendant judgments which became final. Defendant provided for the payment thereof by levying a tax. But the city officers refuse to collect it. Proceeding by motion, plaintiff obtained an order upon the administrator of finances to collect the same. No exception was taken to this mode of proceeding. The answer sets up many defenses which might have been, but were not, urged to the original suits. They can not be considered now, because the judgments have become final. Plaintiff’s action is justified by article 2450 of the Revised Statutes.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      J. W. Jones and Egan & Wise, for plaintiff and appellee.

      T. Alexander, City Attorney, for defendant and appellant.
   MoegaN, J.

A motion is made to dismiss this appeal on the ground that the transcript was not filed within the time required by law. But-the appellee has answered, asking-for an amendment of the judgment,, and in his answer, did not reserve his motion to dismiss. He can not move to dismiss and at the same time answer. The answer waives the motion.

The motion to dismiss is denied.

Oisr the Merits.

. Plaintiff obtained judgments against the defendant. These judgments are final.

Defendants provided for the payment of the judgments by levying a tax. But the officers of the city refuse to collect the tax.

Plaintiff proceeded by motion and obtained an order upon the administrator of assessments to proceed forthwith to collect the same. From this order the defendant appeals.

No exception was taken to the form of proceeding. The answer sets up many defenses which might have been urged to the original suit, but they can not be considered here, because that judgment has become final.- Plaintiff is proceeding under section 2450 of the Revised Statutes, which justifies his action.

Judgment affirmed.