author: Biormudez, C. J.

text:
    No. 8306.
    Rachel vs. Nancy A. Jones et al.
    When the succession of a party has been opened and heirs have been recognized by a com-potent Court, tlie judgment raises a presumption of dearli, •which it is incumbent on the party represented to be dead and claiming to be living, to destroy. The evidence in this caso establishes that the plaintiff who was represented as dead, is living. The proceedings made for the settlement of her estate, were properly annulled.
    APPEAL from the Civil District Court for the Parish of Orleans. Lanar us, J.

      JB. K. Miller and Tt. G. Madden, for Plaintiff and Appellee:
    “Rachel” being alive, it follows, that the'proceedings in the Second District Court, by which defendants were put in possession of her property, are null and void: 1st. Because “nemoest hseres viventis.” 2d. Because the Second District Court was exclusively a court of probate jurisdiction, and had no power to administer upon the estate of a living person, subject to no incapacity determined by some special law. R. S. 1870, § 2011.
    Because the grant of administration on the estate of a person not really dead, and all procee'dings had, or acts done thereunder, are, null and void. Griffith vs. Brazer, 8th Cranch, pp. 9-23-; Burns vs. Tan Loan, 29th An. p. 563; D’Arusmont vs.’Jones, Albany Law Journal, Yol. 22, Ho. 12; Larin vs. Savings Bank, The Reporter, Yol IX. p. 54t; 2d Wharton on Evidence, §1278 and notes; Jochurasen vs. Bank, 3d Allen, Mass., p. 87; Allen vs. Dundas, 3d Term Report; Morgan vs. Dodge, 44 H. H. Rep. p. 259; Duncan vs. Stuart, 25 Ala. p. 408; McPherson vs. Cunliff, 11 Sergeant & Rawle Rep. p. 422; Casque vs Moody, 20 Miss. (12 Sm. & M.) p. 153; Barber vs. Converse, 1 Redfield’s Rep. (H. Y.) p 330; 15 Am. Law Register, p. 212; 14 Am. Law Register, p. 337.
    When the issue is upon the life or death of a person once shown to have been living, the burden of proof lies upon the party who asserts the death, for the presumption is, the party continues alive until the contrary be shown. Pothier on Obligations, p. 284 ; Throgmorton vs. Walton, 2 Roll Rep. p 416; Wilson vs Hodges, 2 East Rep. p. 312; Cent. Law Journal, Yol. *11. p 254; Burns vs. Yan Loan, 29 An. p. 560; Xing vs. Howler,. 11 Pickering, (Mass.) p. 303 ; 2 Wharton on Evidence, § 1279.

      Jos. II. Spearing, for Defendants and Appellants :
    The opinions and impressions of witnesses are not admissible in evidence. 7 L. 85, Ingram vs Croft; 15 A. 414-15, McConnell vs. Hew Orleans; 21 A. 726-27, Poutz vs. Jones; 27 A. 315-316, Schmidt & Zeigler vs. Williston.
    u Every presumption will be adopted against a party who suppresses evidence that would illustrate his cause.” “ The best evidence must be produced, and where a party fails to produce the same, it will he presumed to he against him.” 1 H. Dig. p. 489, Ho. 13, and authorities; p. 498, Ho. 3, and authorities.
    Whore a suit is not brought for any cause, until after the death of parties who, if living, would know of the facts presented in such a suit, and, whose evidence, if it could be had, would make the case one of easy solution, the testimony should not only he strong but conclusive. 11 L. 438, Baker vs. Towles; 5 A. 141, Davenport vs. Labaave & Landry; 7 A. 555, Simpson vs. Powell; 7 A. 562, Jenkins vs. Parish of Caddo; 14 A, 317, Sue. of Jno. Rice.
   The opinion of the Court was delivered by

Biormudez, C. J.

The plaintiff complains that in 1879, she was represented as dead to the Second District Court for the Parish of Orleans. That she is the woman named Rachel in the will of one Cruden, and is the legatee of the real estate therein mentioned; that proceedings were instituted by the defendants to settle her succession; that they obtained a decree recognizing them as her sole heirs, and putting them in possession of that property.

She charges the nullity of those proceedings, and prays that the same he pronounced.

The defenses are, by exception, that the petition does not disclose the name and surname of the plaintiff ■, that she has no cause for action, because she has no rights as the alleged legatee, she being at the time a slave, incapable of inheriting.

The first exception having been overruled, and the second referred’ to the merits, the defendants, reserving the same, pleaded them anew in the answer, setting up a general denial of all the allegations, and a special denegation that the plaintiff is the same person as is mentioned in the will.

The case was tried on those issues. From a judgment in favor of the plaintiff, the defendants have appealed.

The first exception was properly overruled. The law does not require impossibilities. It is only from such parties as have a name and a surname, that it demands a specification of both. In the present case, the plaintiff calls herself Rachel; she says that she is the Rachel named in the will to which she refers; the Rachel, whose heirs the defendants claim to be. She has but one name, and a name brought particularly to the knowledge of the defendants with such precision that they can not pretend not to know who the plaintiff claims to be. The object of the law in requiring the giving of the name and surname, is to well inform the adverse party with certainty, of who the lilaintiff is, in order to avoid all possible mistake.

The defendants cannot set up any ignorance on that subject in this ease.

The facts indisputably disclosed by the Record are, that by his will dated .1837, John Cruden ordered that one of his slaves named Rachel, born in 1833, be emancipated at her majority; bequeathing to her a lot of ground, therein described; that some twenty years afterwards, Rachel went out of the State, remaining unheard of; that in April, 1879, the defendants, representing her as having departed this life, and claiming to be her sole heirs, were recognized and put in possession, as such, by the said court of the lot in question ; that in 3Iay of the following year the plaintiff brought the present action.

The question submitted is simply one of identity.

The girl, Rachel, named in the will, as born in 1833, could unquestionably be presumed to be still alive (one hundred years not having elapsed since her birth), R. C. C. 70, were, it not for the proceedings had in the Probate Court, which appear to be regular on their face.

The judgment recognizing the petitioners, who are the defendants herein,- as the collateral and only heirs of Rachel, seems to be supported by evidence showing the alleged death of Rachel and the right of heirship claimed; but it was rendered necessarily ex parte, and is not absolutely binding.

Tf it be true, that the plaintiff is the person represented as dead and her identity is established, those proceedings must fall as the offspring of either fraud or ignorance. 29 A. 560; 4 R. 26, 201; 14 A. 596.

Until then, however, they prima facie establish the death of Rachel, sufficiently to remove the presumption in favor of her existence. The burden was upon plaintiff to show her identity. 32 A. 425. ■

It indeed appears strange, that if plaintiff be Rachel, she should have remained absent, unheard of, for nearly thirty years, but, however singular that disappearance may seem, it surely cannot affect or defeat any rights which she may otherwise have.

We liave carefully read and weighed the voluminous testimony adduced on the trial and feel satisfied, as was the District Judge, who saw and heard the witness and had better opportunities of appreciating their veracity and sincerity, that the plaintiff in this case is the Rachel named in the Cruden’s will and represented as dead before the Probate Court, the more so, as the Record is absolutely silent to the contrary, and the defendants, in their pleadings, have somewhat admitted that, identity.

The witnesses heard to establish this important fact, are. five in number. They all knew Rachel, the legatee, before she left the State; they also well knew the family in which she lived and moved.'

One of them, a distinguished member of the bar, testifies that he conversed with the plaintiff, about transactions which occurred , at the time; that the answers which she. made satisfied him that she must be the person; that it is possible that she might be an impostor, but he did not think it probable.

Another witness of acknowledged respectability states, that after the first conversation had with plaintiff, he felt almost sure she was the girl Rachel, and testifying, he declares, that he believes her to be the woman.

He adds that she looks like the mother of Rachel, who was deaf and dumb, and named Dummy; that Rachel had á peculiarly shaped head, which this woman, the plaintiff, has; that it is not possible that somebody else could have been sufficiently informed to have answered some of his questions, as plaintiff had done.

A third witness, an aged and venerable lady, who well’knew the family and also Rachel, being asked . whether she was positive that the woman in court was Rachel, who once belonged to Cruden, answered she had no doubt of it; that Rachel was a peculiar child; that the shape of her head was singular; that she resembled her mother; that she identifies plaintiff with Rachel by circumstances'and occurrences ; that she recognized plaintiff at first sight, without being told she was Rachel; that it is impossible that some other colored woman could have made her believe that she was Rachel; that she has no doubt of her identity.

A fourth witness testifies that he is positive that plaintiff is the same girl Rachel,- the daughter of Dummy, whom he knew in 1853. He had assisted the defendants in obtaining possession of Rachel’s estate, because he thought she was dead, but that since, he has met plaintiff, and thus discovered that Rachel is alive, and that that plaintiff is the same person.

A fifth witness declares that he well knew Rachel; that she was a servant in his father’s-family in 1853, at Bay St. Louis; that he has conversed with the plaintiff; that she recognized him on the street, calling him by name; that he really believes that the woman in court is the same woman.

The plaintiff, herself, was heard as a witness, in her own behalf. Her testimony is lengthy, made so particularly by the numerous questions of all sorts propounded to her. It does not show more than ordinary intelligence, and indicates the confusion of mind, which persons or her class and condition usually experience, when testifying in a court of justice, and answering the questions and cross-interrogatories, often artfully and guardedly propounded by acute and astute counsel, well informed of tile theory and of the main features, and minute details, actual or constructive, of a vexed and complicated litigation.

On the whole it sufficiently proves, notwithstanding some insignificant contradictions which occur in it, that she is Rachel, tlie emancipated slave and legatee named, and provided for in John Oruden’s will, and represented as dead in the proceedings had before the Probate Court.

The testimony of the two witnesses, who were heard on behalf of the defendants, show how familiar tliey were with Rachel’s history and with those in the midst of whom fehe lived; they do not say that Rachel is dead; they have seen and examined the plaintiff in court and do not assume to say that she is not the Rachel of the will. They admit that the plaintiff has about the same color as Rachel.

In presence of that mass of testimony which covers one hundred pages and more of the transcript; and, in the absence of any successful effort on the part of the defendant to produce the witness who swore to Rachel’s death, and whom the District Judge thought was a myth, or even an attempt to corroborate that statement, we are satisfied that the lower court decided correctly.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 7261.
    Eugene Lesseps et al. vs. Jules Lapène et als.
    Where succession property has been sold to pay for work clone for its preservation, and tlie sale is made under the directions of tlie executor of the deceased and of co-owners, and the fact of the sale is afterwards mentioned in the final account presented and homologated, and the succession is notoriously and peifectly insolvent, the judgment of homologation concludes the heirs. The latter are not entitled to citation in such cases and cannot ask the nullity of the sale of the property.
    APPEAL from the Second Judicial District Court, Parish of Plaque-mines. Pardee, J.

      J. 8. & J. T. Whitaker, for Plaintiffs and Appellants :
    1 The act of the Legislature, approved 17th February, 1806, relative to Board of Levee Commissioners, repealed all former laws authorizing parochial authorities to construct levees •at the cost and expense of riparian proprietors of lands leveed. 22 An. 58. Any action therefore of the police jury taken ia 1868, for the purpose of selling and expropriating the ' lands of a riparian proprietor, for the construction or making of a levee in front of his property, is of no effect in law.
    2. An executor failing to sell, under order of court, property inventoried and belonging to the succession he represents under the jurisdiction of his parish, cannot legalize the sale of such property in another parish, under another jurisdiction, by giving his assent thereto, especially when such sale is made at the instance of a police jury in violation of the Act of 1866, relative to Board of Levee Commissioners. 26 An. 660; 29 An. Walm- • sley’s Case; 28 An. 354.
    3. The publication of a monition cannot cure the defect of proceedings under a judicial sale, where the parties cast were not duly cited to make defense. Neither can a monition cure the defect of a sale made under proceedings in direct violation of law. It. S. 2377; Act 20,1866.
    4. One of several heirs and defendants cannot, while waiving citation for himself, waive citation for his co-heirs and co-defendants, unless authorized to do so, and a statement to that effect by such heir and defendant, in writing, does not bind them, especially where it appears, by admission spread upon the Record, that no authority was given for such waiver.
    5. Where an executor is discharged, the heirs of the party whose estate was administered by said executor, may stand in judgment as against third parties not legally in possession of the property not disposed of. 14 An. 597.

      D. Howard MeOdléb and Geo. J. Denis, for Defendants and Appellees:
    1. Plaintiffs cannot claim title to land belonging to an insolvent succession, if their only title is heirsliip, when it is shown that privilege creditors received only a portion of their dues. 25 An. 379.
    2. Plaintiffs have not put themselves in a position to sue for the recovery of propeity belonging to an insolvent succession, as the executor has been discharged. Creditors alone had that right. 2 An. 782 ; 27 An. 563; 14 An. 777.
    3. The executor represented and his acts bound all parties interested, heirs as well as creditors. Art. 123, C. P.; 4 M. 458; 8 R. 497; 3 An. 36; 9 An. 107; 10 An. 224.
    4. All the proceedings relative to the sale of the property were strictly in conformity with law, and even, argumenti gratia, if citation hy publication was not a strict compliance, it was cured by the subsequent appearance of the executor and co-proprietor. C. P. Arts. 497-612; R. C. C. Art. 2272 ; 2 La. 265; 5 An. 567; 13 An. 338; 2 An. 593; 19 La. 307.
    5. Repeals by implication are not favored. A particulai is not abrogated by a general statute. 10 M. 172; 12 An. 805; C. C. 17.
    6. The decision in Police Jury vs. Tardos, 22 An. 58, is isolated, and not applicable to the facts of the case in hand. Judgment in a monition suit, regularly obtained, is conclusive proof of the legality of the sale. Rev. Stat. 1870, See. 2376, C. It has the force of res judicata.

    7. A judgment, settling an executor’s account, is likewise res judicata. Decrees of courts are res judicata against all persons, when acting within the limits of their jurisdiction.
    The discharge of the executor establishes: 1st, that there was no other property to he administered upon; and 2d, amounts to an approval hy all parties of his official aots.
    8. If this suit be treated as an action in nullity of judgment, it is prescribed by-one year; if based upon irregularities and illegalities in the sale, hy five years. C. -P. Art. 612; R. C. C. Art. 3543; H. D. Prescription, (g. 4) Nos. 4 and 5; 21 An. 505, 584.

      Jos. F. Hornor, W. S. Benedict and Francis W. Baker, for Defendant., P. Henke:
    1. A monition duly homologated confirming a judicial sale, has the force of res adjudicata> and operates as a complete bar against all claims to the property in consequence of all illegalities or informalities in the proceedings, whether before or after judgment. R. S., Sections 2370, 2375, 2376; 9 An. 98; 24 An. 545; 21 Wall. 616.
    2. The homologation of the final account of an executor and his discharge aitei accounting for property, bars all claims of the heiis to such property. 3 R. 331; 5 R. 352 ; 5 R. 518.
    3. All claims to property arising from informalities in the public sale, are barred by the pre> scription of five years. Civil Code, Art. 3544; 29 An. 534.
    4. One who takes part in the sale of his property, or who stands by in silence when it is sold, is estopped from thereafter claiming it from the purchaser. 5 R. 352, 518.
    5. In an action of nullity, the specific ground upon which p’aintiflf relies must he alleged. 6 M. 623; 12 An. 13; 14 An. 777; 26 An. 618.
    6. Plaintiff, seeking to annul a judicial sale, must tender to the purchaser the amount paid to free the property from encumbrances. 6 2L S. 684 ¡ 8 K. S. 162, 210; 3 La. 541; 8 La. 177; 8 La. 440; 3 An. 668; 5 An. 255 ; 6 An. 581; 8 An. 503 ; 12 An. 251; 13 An. 213; 21 An. ■ 385, 425 ; 24 An. 324 ; 28 An. 854; 29 An. 537 ; 39 An. 174.
   The opinion of the Court was delivered by

Bermudez, C. J.

Tliis is an action by the heirs of P. A. B. Lesseps to recover certain real estate, known as the “ St. Sophie ” Plantation, situate in the parish of Plaquemines.

The defense is: res judicata and the prescription of five years.

There was judgment sustaining the pleas, and the plaintiffs appeal.

It appears from the evidence adduced, that the property in question was inventoried among the assets of the deceased. There is no dispute that it then belonged to him. The contention is, as to whether it has since passed from the estate.

The defendants claim that it was sold by the sheriff, under a judgment in the suit of the Police Jury against the estate, brought in April, 1868, for the recovery of costs for rebuilding a levee, etc., in front of • the plantation; that at the offering in January, 1869, it was adjudicated to D. B. Macarty, their common author, who paid the price in ready money; that subsequently, proceedings for a monition were initiated and ultimated in a judgment, rendered in November, 1871, homologating the sale, and that afterwards the sale was mentioned by the executor in his final account of the deceased, which was homologated without opposition.

The plea of res judicata rests upon the judgment of homologation, and the plea of prescription is based on tile time which has elapsed since the sheriff’s adjudication in 1869.

In reply, the plaintiffs say: That the law under which the Police Jury suit was instituted and the property sold, had been repealed two years before the bringing of the suit; that the judgment and the sale are nullities ; that the monition proceedings and the homologation of tlie sale of 1869, axe of no effect, as they cannot cure the defects of a judicial sale in a case where the parties were not cited, and where the provisions of the law were violated.

The Record shows that the suit was brought by the Police Jury j that service was accepted by one of the heirs of Lesseps, for himself, and for the other heirs concerned ; that a citation was published j that a default was entered and subsequently confirmed; that execution issued; that the property was seized and that instructions were given for the sale, both by August Lesseps, as owner of one-tliird, and by Bernard Sordid, as executor of Alex. Lesseps, owner for the remaining two-thirds j that the'property was offered and adjudicated on the 2d January, 1869, to D. B. Macarty, for $4854, paid cash, and that the sheriff’s deed was recorded on the 28th of the same month.

It further appears that in February, following, the purchaser applied for a monition; that, after publication and in the absence of opposition, the sale was confirmed and homologated, the judgment being signed on the 24th of November.

The ground upon which the plaintiffs rely to have the sale and the monition declared nullities is, that the act of the legislature of February 17th, 1866, relative to the Board of Levee Commissioners, repealed all former laws for the construction of levees at the expense of riparian proprietors, and in support of that position, reference is made to the case of Tardos, 22 A. 58.

It is claimed by the defendants, that the law under which the proceedings were had in 1868, for the payment of the work done in front of the St. Sophie Plantation, was a special statute passed in 1840, No. 60, and subsequently amended in 1848, No. 38, Extra Session, and that the Act of 1866, being a general statute, did not repeal those special statutes.

We do not think it necessary to decide either that question, or that of res judicata resulting from the homologation of the monition, or that of prescription, as we think that in consequence of facts which have occurred since the proceedings by the Police Jury and the judgment in their favor, the sale under it is valid and binding.

We have seen that both the co-proprietor, for one-third, and the estate of Lesseps, in the person of its representative, owning the remaining two-thirds, have given instructions as to the mode or manner in which the sale was to be effected.

Whatever objections might be and are urged against the ratification set up, must prove of little or no weight, when it is considered that, in the account which was presented to the Probate Court in 1870, it'is distinctly stated, that the St. Sophie Plantation had been seized and sold by the sheriff of the Parish of Plaquemines, on the 2d of January, 1869, to satisfy a judgment obtained by the Police Jury of said Parish.”

This account was duly homologated in June of the following year. The executor was afterwards discharged in April, 1875.

The objection, that this judgment of homologation is not binding on the heirs, because they were not cited, otherwise than by advertisement, is unwholesome.

The succession of Lesseps was notoriously, thoroughly insolvent. Its creditors were, to all appearances, the only parties interested in its speedy and economical liquidation and settlement. His heirs had none but a contingent residuary interest, depending upon a balance in the hands of the succession representative, in money or property, after payment of all the acknowledged and recognized creditors. It is then, and then only, that their interest could take semblance and form. They had not accepted the succession unconditionally and, even then, could not have taken the seizin from the executor, without providing him with the means to pay the creditors, these insisting. The fact is, they did not do so. Their interest being very remote, they stood aloof from the proceedings, totally indifferent to the course to be pursued.

There would have been no necessity to notify them of any application for the sale of the property. The advertisements preceding the ' sale would have been sufficient notice. They would have had the right to arrest the sale by paying the debts, or showing that none existed.

• In cases of thoroughly insolvent successions, it is an error to suppose that the law requires that the settlement of the same shall be obstructed and rendered cumbersome and more onerous, by the giving of notices of any kind to the heirs, whoever they be, of age or minors, present or absent; for it is only on the contingency that there exists a residue, in other words, that the forces of the succession are ample to satisfy and discharge its liabilities, and that there shall remain a surplus, that the heirs are considered as having an interest involved in it and must be notified.

The duty of the heirs, or of their representatives, is to keep a watchful eye on the proceedings, as they are developed, and to make opportune opposition, in the form pointed out by law, to whatever might prejudice them.

Why should they, by representation of the insolvent deceased, be entitled to such notices and citations, when their author, had he lived and made a judicial surrender of his property to his creditors, would not himself have been entitled to any?

The affairs of an insolvent debtor going to judicial bankruptcy are settled without such formality. The affairs of an insolvent deceased should not be required to be liquidated in a different mode, in the absence of any law to the contrary. Ubi eadeni ratio, eadern est lex.

We regard the law, relative to notices to heirs in successions, as requiring such, only where the successions are really or apparently solvent, and it is proposed to establish and apportion a residue among the heirs of the deceased. Heirs opposing an account could not disturb it, unless error, fraud or injury were shown. They cannot be permitted to set up, after judgment, that which they could have alleged and did not aver before judgment, so as to upset what was concluded by the judgment homologating the account, and overturn titles resting upon the proceedings.

If heirs stand by and tolerate the settlement of an estate in which they are concerned, by the sale of its property, by application of its funds, by an account exhibiting its assets and liabilities, and a.deficiency towards full payment, and permit the account to be published •and homologated, without opposition on their part, the ■ proceedings thus culminating, become .conclusive upon them, and cannot afterwards be questioned by them.

The judgment is. binding on the creditors and legatees, who are primarily interested, and operates in like manner on the heirs, who are secondarily concerned, when there exists no residue in their favor. The binding effect, which the judgment on the account thus acquires, continues afterwards.

The principle which dispenses with notices of sale to heirs, when 'a sale is sought to pay the debts and charges, .even in -a solvent succession, certainly relieves them in insolvent estates, throughout all the proceedings, specially concerning the, account showing the active and passive and the,insolvent condition of the succession, and it is manifest from it that no residue accrues to the heirs. These conclusions are sustained both by reason and law and by, equity. ■.

We deem it sufficient to refer to-aivthoriti.es, without analyzing them separately. 6 L. 225; 10 R.457; 12.R. 548 ; 2 A. 503; 14 A. 706; 15 A_ 678 ; 21 A. 508 ; 24 A. 343, 530 ; 28 A. 633 ; 29 A. 379, 381, 397 j 30 A. 304, 894 ; 31 A. 280 j 32 A. 971; 33 A. 469.

The plaintiffs present themselves with bad grace to claim this property, the proceeds of the sale'of which were paid cash to the sheriff and applied to the payment of a work done for its preservation. 14 A, 622 ; 21 A. 508 j 3 A. 564; 6 A. 51, 581; 8 A. 503; 12- A. 271: 27 A. 563 j 14 A. 777 j 31 A. 450.

In the last case the late Court well observed, in circumstances somewhat similar: ......

The divine command to honor thy father and thy mother, is but the echo of a sentiment that nature has planted deep in the human heart and the laws of all countries, dealing with men’s acts, and yet enforcing that sentiment, prohibit the child from taking the father’s property, unless he pays the father’s debts.”

We consider that by the final account and tableaux presented and homologated without opposition, the status of the property claimed in this writ has been adjusted and settled as having passed from the estate of the deceased.

The District Judge so viewed the matter. We find no error in his finding.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


text:
    No. 8430.
    The State of Louisiana vs. Dink Harris.
    The motion to quash the venire was properly overruled, in the absence of a charge of fraud, or averment of a great wrong or injury caused to the defendant.
    The accused was not entitled to a new trial on the ground that the evidence at the inquest was taken along by the jury, together with other papers, in retiring to deliberate, and that the table in their room of deliberations was covered with law books, to which they had access.
    It is not necessary that the accused be personally present in court at the trial of the motion for a new trial.
    APPEAL from tlie Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      Sufhon & Sufhon, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This defendant was prosecuted and tried for murder. He was convicted of manslaughter.

From the judgment, sentencing him to five years imprisonment at ' hard labor in the State penitentiary, he has appealed.

He complains:

1. That the District Court has erred in overruling his motion to quash the general venire and in refusing that for a new trial.

2. That the Record does not show that he was present during the trial of the last motion.

L

The challenge to the array was based on the ground that the general venire was not completed from all the citizens qualified to serve as jurors) that the names were selected from a list of registered voters $ tliat tlie names of the j urors were not written on separate slips of paper, with the. number of the ward or place of residence of the juror, by the clerk of the court.

The motion to quash the venire does not contain any charge that some fraud has been practiced, or some great wrong committed in the drawing and summoning of the jury, that would work a great and irreparable injury to the accused.

Under the rulings of this Court, based on Sec. 10 of Act 44, of 1877, the motion to quash is wholly deficient and cannot prevail. See State vs. Dozier al. Lobster; State vs. Watkins Smith, 33 A., p. 1414, and authorities therein referred to ; also, 32 A. 36 ; 30 A. 884; 31 A. 379.

II.

The main grounds urged for a new trial are, that the jury were permitted to take with them, during their deliberations, the written testimony taken at the inquest, which was not in evidence, a certificate of death of the coroner, dated after the inquest and forming no part of it; that after the evidence had been closed on both sides, the jury were allowed to occupy the court room, the table in which was covered with law books, the jury having tree access thereto.

We have examined the testimony offered in the motion for a new trial, and which is annexed to the bill of exception taken to the refusal of the Judge to grant one, and we have also considered the statements in the bill itself.

From the whole, we gather : that the inquest and the coroner’s certificate, which were fastened together, had been read, without objection, to the jury; that immediately thereafter, the Judge charged the jury with emphasis, that the inquest only proved the death ; that the evidence on the inquest was not read; that there were law books in the room to which the jury retired; that those books continued therein until after they had deliberated; that they were afterwards found scattered;' that when the jury returned into court with their verdict, the bundle of papers, or Record, which they brought in, was found to contain the evidence at the inquest, the inquest and the certificate.

Under that state of facts, was the accused entitled to a new trial 9

The rule is, that when the jury retire to deliberate, improperly talcing out with them a paper, it should be no ground for a new trial, unless it appear that it was examined and that the accused was thereby prejudiced. 29 Iowa 295; 6 A. 554.

The rule likewise is, that the jury should not be permitted to take with them any jportion of the written evidence in the case, but that there exists no objection to their taking the whole of the evidence; 61 111. 365 ; but the rule is not without exceptions. 29 A. 715.

It was held that it is no error to permit the jury, on a trial for murder, to take with them papers which had been commented upon during the trial. 76 Penn. St. 340; 5 Binny’s Rep. Penn. 239.

It was distinctly further ruled, that where it appeared that the testimony which was given at the coroner’s inquest, and which had not been offered in evidence on the trial, was accidentally taken to the jury room, it was no ground for a new trial. 10 Rich. 212.

In the present instance, there is nothing to show that only part ofthtevidenee at the inquest was taken out; that it was read hy any juror j that the jury was prejudiced thereby. It was inadvertently taken out by the jury with the Record, attached as it was to the inquest and to the coroner’s certificate, which had been read to the jury. The District Judge had emphatically charged the jury for the full protection of the. accused.

In State vs. Bradly, 6 A. 560, the Court said :

It is the duty of the court, and of their officers, to guard as far as possible against all irregularities in their proceedings. Still they will occur, because tribunals of justice, like all human institutions, are imperfect. Some irregularities are of such a gross character that a prepucial effect may be presumed. We do not think the one complained of was of that character. If, by any means, it could be shown that the affidavit had produced an improper influence on the jury in making up their verdict, it would afford sufficient ground for granting a new trial. But we will not presume it because it is barely possible. We should regard jurors as rational men, capable of performing the high duties which the Constitution imposes upon them. The Constitution and1 laws charge them to judge of the issues upon which life, liberty and property, depend. The law presumes them to possess the capacity and integrity to perform those duties correctly, and that they will not be swerved from their performance by improper influences, and we will not presume or decide the contrary, until it appears from proof or necessarily results from gross misconduct.”

The evidence further fails to show, that the books in the jury room were examined and read. It was no doubt improper to permit them there to remain, without the authority of the court, or the consent of the parties ; but, in the absence of direct testimony to establish that they were looked into and read, that is no ground for a new trial. 13 Ind. 434 ; 11 Ohio 114; 32 A. 842, and authorities referred to.

The motion for a new trial was properly overruled.

III.

The assignment of errors filed here calls our attention to the silence of the transcript, relative to the presence of the accused during the trial of his motion for a new trial, and it is insisted that this is an error, patent on tlie face of tli© Record, which demands a remanding of the case.

The Constitutions of most of the States of the Union incorporate the old common law principle, that the accused in criminal cases shall have a right to meet the witnesses against him, face to face. Ours provides that he shall enjoy the right to be confronted with the .witnesses against him. Const. 1879, Art. 8.

However sacred this constitutional right may be, it has not been construed to be so absolute in character as to require the constant presence of the defendant at each and every proceeding in his case. It has been construed as entitling him to be present at the arraignment, trial, charge verdict and sentence, but we have been shown no precedent in this country where the accused is entitled to be present at any other proceeding. It is not to our knowledge, from the books or otherwise, that the defendant has ever claimed, or been recognized, the right to be present, when therein represented by counsel, in the court of last resort.

In 32 A. 500, we said :

While the law, in its tenderness for one in its custody, charged with a grave offense, may not from this consideration dispense with the personal presence of the accused in all the important material stages of the trial, lest he might possibly suffer some injury from his absence, it is not now required that he should be personally present at each any every step and proceeding connected with the case of minor significance and importance.” V. Dougherty vs. Commonwealth, 69 Penn.. St. 286.

We will add that such is the case, particularly on the trial by counsel of a motion for a new trial, which necessarily admits a previous trial, and which is not another trial in itself, and during which no witness is or can be heard to test the guilt or innocence of the accused, on the charge against him.

It has been held that the defendant’s voluntary absence, during part of a trial on an indictment for a felony, was no ground for reversing the sentence against him. 17 Cal. 389; 17 Wis. 675 ; 2 Mont. 239 ; 7 Ohio pp. 1, 180; 16 Ind. 357; 8 R. 554, 562.

Tire same ruling has been made touching Ms compulsory removal from the court room, where Ms action is such as to make it impossible to proceed with the trial, and he is permitted in an adjoining room .to communicate with Ms counsel.. 6 Blaich. 464 ; 98 U. S., p. 158 (4).

Judges, however, have sometimes preferred enduring an irritating defendant, where a plea of insanity was interposed, and the accused claimed the right of representing himself.

In his work on Criminal Procedure, Bishop says, that between the-verdict and the sentence, it is not necessary, though highly proper, that the prisoner be present in court, when the offense charged is a capital one. Yol. 3, Sees. 276,275.

The reasons for which formerly the personal attendance of the accused was required, are well given by Manning, C. J., in 30 A. 1155, and those for which it is not deemed indispensable in certain cases specified, are likewise stated in 32 A. 558.

In motions in arrest of judgment and in error, the old English practice was to require the attendance of the defendant, but in our sister States, as well as in ours, this presence has not in practice been enforced. 18 Mo. 319 ; 2 Dutcher 464, 601; 1 Parker C. R. 360; Wharton on Cr. L., No. 2998, § 2, and notes.

We do not consider that the defendant was entitled to be personally present at the trial by his counsel on the motion for a new trial.

The judgment appealed from is therefore affirmed with costs.

Mr. Justice Todd dissents.


author: Todd, J.

text:
    No. 8450.
    C. Chaffe, Jr., Syndic, vs. Madison Carroll.
    1. Where the order of appeal is in the alternative for a devolutive or suspensive appeal, and the bond given is not sufficient for a suspensive appeal, but exceeds the amount fixed for a devolutive appeal, it is a sufficient bond for a devolutive appeal, and the motion to dismiss will not prevail.
    2. An order of seizure and sale cannot legally issue in favor of an alleged endorsee of a promissory note, payable to the order of the payee, without authentic evidence of the endorsement. Nor does the stipulation in the act of mortgage securing the note, to the effect, “that the payee or his transferree may proceed to enforce the same by seizure and sale,” dispense with such proof of the endorsement.
    3. When the application is made for such order on a note of the description stated, by one claiming to be syndic, and there is no authentic proof of the payee’s endorsement, the application must be accompanied by proper evidence of the assignment, and the syndic’s appointment, to warrant the order.
    Judgment reversed and order of seizure and sale annulled.
    APPEAL from the Tenth Judicial District Court, Parish of Red River. Logan, J.

      Montfort 8. Jones, for Plaintiff and Appellee.

      L. JB. WatMns, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 8462.
    A. Rougelot vs. W. A. Quick.
    Tax sale declared null and void and set asido, for want of proper description of the property on the assessment rolls, and also, because some of the taxes for which the property was sold, .were illegal.
    APPEAL from the Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      Van B. Winder and John B. Winder, for Plaintiff and Appellant:
    1. In a tax sale every formality of law must be strictly complied with, under pain of nullity. 4 L. 148; 14 A. 209 ; 33 A. 291; Cooley on Tax, 323; Blackwell, 33; 13 Cal. 609.
    2. Property must be legally described in the assessment roll. Blackwell, pp. 123, 278.
    3. Property of non-residents must be placed on tbe non-resident portion of the roll. Acts 1871, Act 42, ?ec. 18. This provision is mandatory. Cooley on Tax, 277; 19 Maine, 100 ; 1 Mass. 48; 23 JST. Y. 281; 40 3ST. Y. 547; 48 RT. Y. 486; 8 Penn. St. 169.
    4. Parish taxes must be placed on separate roll from State taxes. Acts 1871, Act 42, Sec. 43. This provision is imperative. Blackwell, 163; Cooley on Tax, 295; 16 Mich. 12.
    5. Collector must have a warrant to collect. Blackwell, 166,- 248; Acts 1871, Act 42, Sec. 42.
    6. Legal notice to pay the tax must be given. Blackwell, 171; 33 A. 297. In case of a nonresident, notice must be served on a curator ad hoc, (Sec. 5, Act 47, Acts 1873,) though directed to debtor. 28 A. 625.
    7. Advertisement must contain same description as assessment rolls — a variance is fatal. Cooley, 336 ; 33 A. 558.
    8. Sale void if a portion of tbe tax be illegal. Blackwell, 160; Cooley, 295; Burroughs on Tax, 301.
    (a.) Parish tax illegal if not preceded by publication of budget. R. S. S. 2745; Cooley, 218 ; 26 A. 154; 28 A. 261; 30 A. 1244.
    (b.) Parish tax illegal if excessive — beyond legal limit. Act 42 of 1871, Sec, 7; 29 A. 1; 28 A. 538; 30 A. 1085; 32 A. 411.
    9. Purchaser must pay the hid cash. Sec. 5, Act 47, 1873; Blackwell, 275; Cooley, 343.
    10.The return of delinquent roll, in order to work a forfeiture, must be a legal return, preceded by all the requisites and formalities of the law. Cooley, 319; Blackwell, 460. . Owner’s tender of purchase money being necessary, is no admission of legality of tax. 30 A. 310; 33 A. 490.
    2. Purchaser cognizant of vice in title, is a possessor in bad faith and owes rents R. C. C. 3452, 3453.
    13. Possessor in good faith owes rents from judicial demand. R. R. C. 3453.
    4. Taxes paid by purchaser compensable by rents. 32 A. 238.
    15. Onus probandi is on purchaser to show validity of title. Art. 118 of Const. 1868, does not make deed prima facie evidence of the regularity of proceedings anterior to the sale. Cooley, 355; 13 Tex. 298; 8 Tex. 12; 15 Ark. 331; 33 A. 527; Blackwell, 64.

      Suthon & Suthon, for Defendant and Appellee.
   Tbe opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to annul a tax sale of real estate, and to recover the revenues of the property.

The grounds urged are numerous, hut may he condensed into three principal ones.

i.

Irregularities and informalities anterior to the sale.

II.

The illegality of a portion of the taxes for which the property was sold.

III.

Non-compliance by the purchaser, with the terms of the law in the payment of his bid.

Prom a judgment for the defendant, the plaintiff has appealed.

The irregularities and informalities charged in the proceedings anterior to the sale, as invalidating the title claimed, are: that the property was not legally described in the assessment roll; that plaintiff being a non-resident, Ms property should have been placed on the non-resident portion of the roll; that there was no separate roll for Parish taxes in the Parish of Terrebonne, for the years 1872, 1873, 1874 and 1875; that the collector had no warrant to collect for the year of 1875 ; that no legal notice to pay was given; that the advertisement of the sale did not contain an accurate description of the property.

The illegality of a portion of the taxes claimed is charged on the ground that the Police Jury failed twice to comply with the requirements of Section 2745 of the Bcvised Statutes, is not making out and publishing a budget, and that the parish tax of 1875 exceeded by dimills the limitation imposed by law.

The non-compliance by the purchaser with the terms of the law» in the payment of his bid, is said to consist in his retaining the balance of the price of adjudication, after paying the taxes claimed, with charges and costs.

The enjoyment of the property is valued at one hundred dollars petannum.

The defenses set up are :

That plaintiff has no interest, the property having been forfeited to' the State and the State having made the title; that a, tender made by plaintiff of the amount of taxes, unqualifiedly, as a condition precedent to this proceeding, admitted the legality of the taxes now assailed; that the assessment of the i>roperty was regular and valid; that all the required notices were given to the owner, through a curator ad hoc, duly appointed and who represented him; that the property wras correctly described, both on the assessment roll, in the notice of seizure, in the advertisement, in the procos-verbal of adjudication, and in the. confirmation by the auditor.; that eventually he, defendant, is entitled to a return of the price of adjudication for the taxes paid by him, and to recover tlie value of the improvements put by him on the land since .the day of sale.

We think that the objection to the absence of interest in plaintiff has no foundation. It goes to the merits of the case and cannot be determined as an independent defense. It is enough that the suit was brought within the time limited by law.

Inquiring into the merits of the controversy, we find that the evidence show's that the plaintiff purchased, in 1855, a tract of land in the Parish of Terrebonne, which is described in his petition; that his title was shortly after recorded in the conveyance book in the office of the-Parish Recorder; that he left the Parish years ago, leaving no one to represent him. Taxes were claimed, as due the State and the Parish, on his property, for the years 1872, 1873, 1874 and 1875, to satisfy which his property was seized, advertised and adjudicated to defendant-for $100, in October, 1876, the adjudication being, after the expiration ■of the delay allowed for redemption, confirmed by the State Auditor.

The evidence show's that the property is worth $1,200, Itis admitted that it is described on the assessment rolls of 1872, 1873 and 1874, as containing 160 acres and as bounded above by Zénon Roussell estate, and below by A, Aycock; that on the roll of 1875, it is described as containing- 40 acres, hounded above by Zénon Roussell estate, and below by Mrs. A. Aycock; that it w'as hounded below' for the most part, by land held in indivisión by H. F. Davis and Mrs. A. Aycock, and for a small part by land of A. Bouxg; that prior to the levy of the taxes of 1872, 1873 and 1874, there was made no estimate by .the Police Jury; that for the years 1872, 3, 4 and 5, there was a separate roll of Parish taxes; that the property was not designated on the portion for the roll devoted to non-residents ; that the Parish tax for 1875, due in .1876, wTas in the aggregate' 1G-J- mills, and was not levied with the sanction of a majority of the voters of the Parish, no election having been held for the purpose.

The proceedings were carried on for the tax sale, for the payment of both the State and Parish taxes blended, contradictorily with a curator <id hoc, on whom process was served. The description of the property in the notice of seizure, the advertisement, the adjudication, and in the confirmation by the auditor, is the same.

The price of adjudication, less $19.69, was paid to the tax collector. The rent of the property is proved to he worth reasonably fifty dollars per year. There was introduced no evidence showing the value of the improvements said to have been placed by defendant on the land; blit it is admitted that he has paid the taxes for 1876, 7 and 8, as set out in his answer.

We do not think it necessary to consider each and every ground relied upon by the plaintiff for the nullity of the sale, nor to pass upon the question of anus. We find among those grounds more than one to justify the demand. There is no dispute touching the facts, -which both litigants have either established or admitted.

It is elementary that in a tax sale every formality of law should he strictly complied with, under penalty of its nullity.

The inadequacy of prices in sales of this description, and the absence or incapacity of the owners, arising from infancy, coverture or other causes, have had their influence in the establishment of this rigid rule of law. 4 L. 148, 207 ; 18 L. 514; 14 A. 209; 33 A. 291. Burroughs on Tax, 295; Cooley on Tax, 323; Blackwell, 33, 43, 46, 50, 60, 66 ; 13 Cal. 609.

One of these formalities is, that the property he described on the assessment roll in such a manner that there can he no difficulty in identifying it, in order, not only that the owner may readily recognize it, hut also that in case of expropriation, the adjudicatee may easily he put into possession of it. It is also required that the description given of it in the proceedings to enforce the payment of the taxes which may he legally due by it, he that found in the assessment roll, which is the warrant to collect. A significant variance is fatal. Blackwell, pp. 123, 278 j Cooley, 336.

The description of the land in the notice must follow that in the roll, so that when the land is sold, it he sold as described in the roll and notice. Burroughs ou Tax, 302.

It is another formality that lands he classified as belonging to residents or non-residents. Act 1871, No. 42, Sec. 18. This provision has been recognized as mandatory. Cooley on Tax, 277.

Also, that parish taxes must he placed on separate rolls from State taxes, particularly where there exists two distinct rolls. Act 1871, No. 42, See. 43; Blackwell, 163; Cooley, 295.

It is likewise required that the taxes claimed must legally he due in their entirety, otherwise the sale is void. Blackwell, 160} Cooley, 295.

On this subject, Judge Burroughs, p. 301, says: That where land is sold for different taxes, part of which are legal and part illegal, the act of the officer is a trespass as to the illegal part. That act cannot he apportioned. The part which is innocent cannot he separated from the other. The power to sell in such cases rests upon the statute. If that is not followed, the acts purporting to he done under its authority are void. 51 Mo. 63 j 6 Kans. 540.

While the doctrine is, that the act of the officer cannot he partly innocent and partly a trespass, yet when a party claims relief and the illegal part can he separated from the legal, the court eau require, as a condition, that the legal tax shall he i>aid. 37 Wis. 442, 288; 16 Mich. 176; 15 Mich. 257; 16 Ohio, 414.

In the three eases reported in 33 A. 4.90, 520, 558, we had occasion to consider the importance of a full compliance with all legal exigencies in tax sale matters.

In 26 A. 154; 28 A. 261; 30 A. 1244, the court considered the necessity of the making out and publishing a budget by the Police Jury. In 29 A. 1; 28 A. 538 ; 30 A. 1085 and 32 A. 411, the want of authority of Police Juries to assess taxes in excess of the limitation fixed by law, was determined.

Applying all the recognized principles in such eases to the facts presented by the Record, we have come to tlie conclusion that the tax sale assailed should be annulled for want of a proper description of the property, and because part of the. taxes claimed, the parish taxes for 1875, was not due.

The description of the land in plaintiff’s title is not that on the assessment roll. It does not appear, judging from the admission in the Record, that the property which fronts on Bayou Chacahoula, was thus mentioned on the roll.

The description in the expropriation proceedings anterior to the sale, in the collector’s proces-verbal and in the Auditor’s confirmation, does not appear to correspond with that in plaintiff’s title, and is not at all that found on the assessment roll.

There was no evidence offered to show that under any of the three different descriptions, the property could have been identified. That it is the same, is made apparent by the acts of the plaintiff, but this was necessary to enable Mm to recover, otherwise no recovery could ever be had.

Where parties become adjudieatees at tax sales, they must at their peril see that the property be that described in the roll, and must show afterwards, if necessary, the identity, in case of contestation.

The defendant had no cause to complain of the judgment of tlie lower court, which was absolutely in his favor. The demand which he lias formed for the reimbursement of the price paid at the tax sale, for the taxes subsequently alleged to have been paid and for the value of the improvements, which he says he has placed upon the land, was not therefore passed upon by the lower court. It has remained intact. It does not fall within our appellate jurisdiction.

We do not think that the defendant can be dealt with as a purchaser in mala fide, and bound for the value of the rent since the day of possession, for which he can be held liable only from the date of the institution of the sMt.

He has not thought proper to accept tlie tender made to Mm at the time by the plaintiff/but is not on that account deprived of the right of claiming what may be due to him for disbursements made to pay the taxes, charges and costs, actually due at the time of sale and for improvements. His right to that end remains unimpaired.

Tt is therefore ordered, adjudged and decreed, that the judgment appealed from be reversed, and proceeding to render such judgmental should have. Leen pronounced:

It is ordered, adjudged and decreed, that there ho judgment in favor of plaintiff, declaring null and void the sale made on tlie 24th of October, 1876, by the tax collector, to the defendant, of the land therein described, and confirmed on the 26th of May, 1877, by the State Auditor, together with tlie Registries thereof on said 24th of October., 1876, and on the 6tli of June, 1877, the latter in book 0. C. of Conveyance, fol. 490, et seq, in the office of tlie Parish Recorder for the parish of Terrebonne, and that the plaintiff be recognized as tlie owner of the property in question, and put in possession thereof.

It is further ordered, adjudged and decreed, that the plaintiff recover of the defendant fifty dollars per annum from judicial demand until delivery of possession of the land in controversy.

It is further ordered and decreed, that the right of the defendant to claim of the plaintiff what sums may be due Mm for moneys disbursed, and for improvements, if any, on the land, be reserved to Mm.

It is further ordered and decreed, that tlie defendant pay the costs of the appeal.


author: Fenner, J.,

text:
    No. 8294.
    J. Henry Behan vs. The City of New Orleans.
    The salary of plaintiff as Administrator of tlie City being- fixed by law, could not be reduced or remitted by a resolution or other action of the City Council, to which he did not assent.
    i PPEAL from the Civil District Court for the Parish of Orleans. /A. Lazarus, J.

      Joseph V. Honor and Frauds W. Baker, for Plaintiff and Appellee.

      0. F. Buck, City Attorney, and Wynne Boyers, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.,


author: Fenner, J.

text:
    No. 8475.
    In the Matter of the Succession of Thomas W. Foley for Homologation of Proceedings of Family Meeting to Appoint Tutor.
    No person but a resident in tlie Parish can be appointed by the Judge dative tutor to a minor, ■without giving bond.
    APPEAL from the Twentieth Judicial District Court. Parish of Assumption. Krtohloeh, J.

      Taylor Beattie, for the Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The widow of Thos. W. Foley had duly qualified as natural tutrix of her minor children, in the parish of Assumption.

Subsequently, without convoking a family meeting as required by Art. 254, C. C., she contracted a second marriage with Thos. 0. Newman, and now resides with her said husband in Galveston, Texas, whereby, under the terms of said article, she was “ ipso fa*to deprived of the tutorship.”

She made application to the court a qua to be appointed tutrix, and, representing that she was unable to furnish bond or special mortgage and believed that no person was wiRingto give bond as tutor, she asked for a family meeting to advise as to her appointment without bond.

The family meeting was summoned, and recommended her appointment without bond as prayed for; but the Judge a quo refused to homologate the proceedings and rejected her application; and from those orders she prosecutes the present appeal. The action of the Judge was in accordance with law.

The domicil of the petitioner is clearly that of her husband, and the domicil of the minor is the same. R. C. C. 39 ; Sue. Winn, 3 Rob. 303; Sue. Lewis, 10 A. 789.

In the case of minors thus domiciled out of the State, such domicil is primarily the proper form for the appointment of their tutor or guardian, and the tutor or guardian so appointed is recognized by-our law as entitled to represent them, and to recover and control theix properfcy in this State. C. C. 363.

The petitioner does not claim to have such appointment from the courts of Texas, nor does any other person present such authority.

In the absence of such representative, the Judge of the parish where the non-resident minor’s principal estate is situated, has the right to appoint a tutor. C. C. 306; C. P. 946. In so doing, however, he must comply with the law.

It is settled that the mother, who has re-married without convening a family meeting to continue her in the tutorship by nature, has absolutely forfeited her right of natural tutorship, which cannot be revived in her favor, and she cannot, thereafter, be appointed except as dative tutrix, and in accordance with the laws regulating dative tutorship. Webb vs. Webb, 5 A. 596 ; Minors Mossy, 3 Rob. 393; Sue. Puck, 9 A. 306.

We think it very clear the law does not, in any case, contemplate, the appointment of non-residents as dative tutors; but, however that may be, Art. 271, C. C., which is the only authority for appointing a dative tutor without bond, expressly makes it the duty of the Judge, with the advice of a family meeting, u to nominate a discreet and responsible person in the parish to be tutor, etc.” This can mean nothing but a resident of the parish ; and, the present applicant being-domiciled, as we have shown, in the State of Texas, it is clear her application was properly rejected.

Judgment affirmed at appellant’s costs.


text:
    No. 8470.
    L. Reder & Co. vs. Mrs. Sarah Maas et al.
    Under Section 1871 of the Revised Statutes, the Judge cannot, upon the mere filing of the creditors’ petition for a forced surrender, issue an order to compel the defendant to make the surrender. A suspensive appeal lies from such an order.
    APPEAL from the Twentieth Judicial District Court, Parish of Lafourche. Knobloeh, J.

      Glay Knobloeh, for Plaintiffs and Appellees.

      Thomas L. Winder, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

This is a proceeding for a forced surrender under the provisions of Sec. 1781, Rev. Statutes.

Under those provisions, it is manifest that the insolvent can only be ordered to make a surrender of his property to his creditors, after he has filed, under order of the court, a schedule of his creditors; after a meeting of said creditors has, under like order, been called; after such meeting has been held and has determined, by a majority in number and amount, that the surrender shall be made; and after the procesverbal of,said meeting has been returned into court and homologated.

In the present case, upon the mere filing of the creditor’s petition, tlie Judge entered his order that the defendant surrender all her property, rights and credits to her creditors, within ten days from the service upon her of this order, and that within said delay she hie with tho clerk of court a schedule of her creditors, * * and in default thereof, that said debtor be ordered to prison, etc.”

The first portion of this order is glaringly illegal, and considered in connection with the penalty, occasioned such irreparable injury as justified the appeal therefrom, which is here presented.

In the respect complained of, it must undoubtedly be annulled.

It is therefore ordered and decreed, that so much of the order appealed from, as directs defendant to surrender her property, rights and credits to her creditors, be annulled and set aside, and that, in other respects, the order remain undisturbed, plaintiffs and appellees to pay costs of this appeal.


author: Lew, J.

text:
    No. 8469.
    H. M. Wallis vs. B. F. Bazet.
    The remarks which the jury read by permission of the court, after their verdict was rendered and filed, did not affect the validity of the verdict.
    The publication made by the defendant, of the proceedings of the Council of the Town of Houma, was not libellous.
    APPEAL from the Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      Tobias Gibson, for Plaintiff and Appellant.

      Suthon ds Hu fhon, for Defendant and Appellee.
   The opinion of the Court was delivered by

Lew, J.

This is a suit for libel. Plaintiff claims damages in the sum of five thousand dollars, for the following, reasons: “ That on the 8th day of October, 1881, the defendant, as proprietor and publisher of a weekly newspaper, The Houma Courier,’ did utter, give currency to and publish, in his said newspaper, through the usual public channels of distribution, printed matter about plaintiff, as an individual and as a public officer, viz: Mayor of the town of Houma, containing false, malicious and libellous charges against petitioner, by which he has been greatly injured and damaged in the estimation of his friends and the public.”

The matter complained of is as follows: Whereupon, J. W. Board moved to have the minutes corrected. Tlie Mayor said it was too late to correct the minutes, and it would make no difference whether they approved them or not. The board refused to approve them. The Aldermen accused the Mayor of a pet job, which they said they would not be responsible for. The board, it seems, at a previous meeting, passed a resolution appropriating one hundred dollars for the cleaning of Barrow street ditch, from Terrebonne to Bayou Lacarpe and the building of two bridges. The secretary pro tern, made the resolution read: one hundred dollars for the cleaning of Barrow street, which the board said was altogether different from the resolution passed. The Mayor made a verbal contract with Mr. John Folej^, for one hundred dollars, for the cleaning of Barrow street ditch, which has not been the custom. The custom has always been to advertise for the lowest and best bidder, and also have a written contract. Mr. J. W. Board states publicly, that it was a put up job by the Mayor, and the reason why the contract was not written was because the Mayor’s son was interested in the contract. He further states that the work tliej- want one hundred dollars for is worth about thirty dollars. ‘ There is something rotten in Denmark.’ More whitewash needed.’ ”

He alleges that said publication is malicious, libellous and slanderous, and contains false charges and imputations reflecting upon his private character, and was maliciously intended to defame and degrade him as a public officer and as a citizen and member of society, and was not justified by fact or truth, on the part of defendant.

Defendant, answering, denies that the said publication is the subject of a sxiit. for libel. He avers that it is a privileged communication, being in substance, a true and correct report of the proceedings of the Council of the town of Houma, at a meeting of said body held on the 4th day of October, 1881, which town of Houma is a political corporation under the laws of the State of Louisiana; that, in addition to its being a true report in substance, of the proceedings of said Council, it contains nothing but a just, fair and true comment on the conduct of a public official, a fair and temperate criticism of the official and public acts of said Mayor; that it was made Iona fide, and'respondent had amide grounds to believe, and did honestly believe, in the truth and jffstice of said critical comments. He further avers, as a, ground for his •belief, that the Mayor refused to have the minutes of the Council corrected, but let out the contract to one John Foley, without public notice, when it was known that other contractors were anxious to bid for said work, and ho drew a warrant for said sum of one hundred dollars in favor of Foley, which warrant the members of the Council ordered the Treasurer not to pay, as the work was not done in accordance with the resolution, and the warrant has not been paid; also, that a son of the Mayor was engaged in said work. He denies malice, either in law or fact, on his part, but alleges that the publication was made for good motives and in the interest of public welfare, and in the exercise of his constitutional right to give every public matter a candid, full and free discussion. He alleges that the suit is without legal foundation and was maliciously instituted to harrass and annoy respondent with vexatious litigation, and claims two hundred and fifty dollars in reconvention, special damages as attorney’s fees. i .

• There was a trial by jury, and there was a verdict in favor of defendant, on the principal demand, and in favor of plaintiff, rejecting defendant’s demand in reconvention. Judgment was rendered accordingly, plaintiff’s demand being dismissed at his costs, and the reconventional demand dismissed at defendant’s costs. Plaintiff has taken this appeal.

We find in the Record the following extract from the minutes:

“The jury herein afterwards returned into court and asked for instructions from the court as to the different verdicts that could be found under the law, in this case, and after having received the necessary instructions from the court, retired again to their private room to consider of their verdict. The jury afterwards returned into court, and through their foreman, Mr. Thomas M. Cage, presented to the court the following verdict, viz: ‘Verdict against plaintiff and for the defendant, and against the defendant and in favor of the plaintiff on the xeconventional demand. Signed, Thos. M. Cage.’ Which verdict the court handed to the clerk, who asked the jury if the verdict had been agreed to, and the jury having responded yea, the verdict was then read aloud by the clerk and ordered filed and recorded by the court and the jury herein discharged.”

■ The plaintiff filed a motion for a new trial; 1st, on the ground that the verdict is clearly contrary to the law and the evidence; 2d, that immediately following the presentation of the verdict of the jury- by the foreman of the jury to the court, the foreman asked to be allowed to read to the court a paper which the jury desired him to present to the court in connection with the verdict} whereupon the request of the jury was granted by the court, and the foreman, T. M. Cage, read the following words and sentences to the court in open session, viz:

“ The loose and rmbusiness-like manner of proceeding- with the disbursement of the public funds of the town of Houma, by the Council and the Mayor of said town, gave rise to the allegations against Mayor Wallis, in the article of the Houma Courier, of 8th October, 1881, Said article, though not libellous, is ungentlemanly in tone, and beneath the dignity of correct and honorable journalism}”

That as soon as the above was read by the foreman of the jury,, and in the presence of the jury, without any dissent on the part of any member thereof, the counsel for. plaintiff moved to have flic a]?ove filed, which was refused by the court on the grounds that it was not signed; that said writing gave and included every reason why the-verdict should have been for plaintiff and against defendant, when said reasons are connected with the evidence and the ruling- of the court, on the exception of no cause of .action, the court having previously overruled such exception.

The motion for a new trial was denied, and we do not think the court erred in so doing. The paper mentioned formed no part of the verdict. It was an expression of opinion on the part of the jury, and a statement of their views of the affair, disconnected with the legal import of the article. They had already, by their verdict, which had been filed and ordered to he recorded, decided the case, passed upon the questions of law and. facts submitted to them, and their functions as jurors closed. Even if it could be considered as a part of the verdict itself, it was not inconsistent with the finding of the jury. It declares that the article complained of was “ not libellous.”. The expression of their opinion as to the “ loose and unbusiness-like ” proceedings of the Mayor and Council, and of the “ ungentlemanly tone ” and want of “dignity,” which should characterize “ correct and honorable journalism,” are mere surplusage, and cannot vitiate the plain finding of the verdict on the issue joined. The maxim “utile per inutile non vitiatur” is applicable herein.

We have read and considered all the evidence on both sides, and are of the opinion that the article complained of contains a substantially correct report of the proceedings of the Council of the town of Houma, at the meeting referred to. This was an open meeting of the corporate authorities of the town who are charged with the management of its affairs; whose right and duty it is to examine into and discuss all matters touching the disbursements, expenditures, etc., of the funds over which they have a guardianship; what liability may attach to the members of the municipal corporation, as individuals, for words spoken or written by them, affecting other persons, while in session as a Council, is not involved herein, and we are not called upon to pass on that question. For a newspaper to give the substance of such proceedings by publication in the locality where the paper is published, and whose citizens arc interested in the matters, cannot be-regarded by us as-being in itself malicious and libellous.

The quotation of the trite expression, “ There’s something rotten in Denmark,” and the use of the slang words, “ More whitewash needed,”’ while -not indicating- the highest cultivation of taste and refined journalism, were not considered by the jury as being either malicious or libellous in this case, and we are of a like opinion.

No evidence was adduced in support of the reconventional demand and we think it was, therefore, properly dismissed.

The judgment appealed from is, therefore, affirmed at costs of appellant.


author: Levy, J.

text:
    No. 7616.
    J. A. Castanédo vs. Marie Félicie Fortier, His Wife.
    ¡Neither party is entitled to the separation from bed and board, when the wrongs complained of are reciprocal between husband and wife.
    APPEAL from the Fifth District Court for the Parish of Orleans. Sogers, J.

      Breaux & Ball and JE. Babourhi, for Plaintiff and Appellant.
    Br. JE. Murphy, for Defendant and Appellee.
   The opinion of the Court was delivered by

Levy, J.

This is a suit for separation from bed and hoard, instituted by plaintiff, husband, against his wife, defendant.

The grounds upon which plaintiff relies are: the exhibition at divers times, of violence of temper, causeless jealousy, insulting expressions and abusive language on the part of the wife toward the husband, in the presence of family, servants and strangers. These exhibitions, it is alleged, have been so frequent, that plaintiff has repeatedly been driven to the necessity of leaving his domicil and living separately from his wife, in order to assure peace and tranquillity and to avoid scandal; that this conduct culminated on the 28th of September, 1876, in a quarrel, brought on by the wife, in which violent, abusive and vulgar language, hurtful to plaintiff’s feelings, insulting and injurious to his reputation, was used, all which was insupportable, and forced plaintiff to leave the matrimonial domicil, to which he has not since returned, he now living with his children, separated from his wife.

Tiie defendant denies the accusation of extreme and ungovernable temper, and asserts that any scenes of jealousy that occurred, were always provoked by the acts of her husband; she specially denies that anything occurred on her part, after twenty-three years of marriage, during which time there were born eleven children, issue of the marriage, of which eight are living, some of whom are young ladies in the convent, and some others young children requiring a mother’s care, that would justify the proceeding now instituted, and prays that plaintiff’s demand be rejected and the decree of separation denied.

There was judgment by the lower court dismissing plaintiff’s suit at his cost, and he has appealed.

Our review and. consideration of the evidence in the record, convince ns that the misunderstandings and difficulties between these spouses are attributable to the failure of a proper control of their temper- by both. It is shown that both the husband and wife are impatient, quick and irascible, and the conduct of neither is marked with that forbearance and conciliatory spirit which should characterize the marital relation. When not excited by jealousy or provoked by what she deemed unnecessary harshness, in the punishment of their children, the wife’s conduct appears to have been exemplary, and she exhibited affection and devotion towards her husband. On the other hand, the husband, when not irritated by his wife’s abusive and upbraiding language, was kind and indulgent. Both are fond of their children, and we are of the opinion with the District Judge, that this common and endearing tie, exercising a soothing and hallowing- influence, renders reconciliation and re-union highly probable. In liis reason, for judgment, the Judge a quo very happily, and we think properly, says : “I am fully convinced that, when the young lady,, who is now at the convent, returns, she will be a greater power in restoring to this disordered household, those relations of affection that the Court is now asked forever to destroy. By a judgment for separation, I am confident, the plaintiff does not desire to affix to Iris wife or to his children, the social taint that inevitably follows a judgment of-divorce. I am satisfied those children, about whom much of this-trouble has arisen, will, and must now appreciate the sorrow and unhappiness that has resulted from too much indulgence on the one part, and an interference with the proper exercise of parental authority, and that there is too much hope for a proper settlement of all these difficulties, in the good sense of the parties themselves, and in the love which they bear their children, and in the great power which these children must have over their parents, to demand, at my hands, a judgment as asked for in this case.”

In the case of Trowbridge vs. Carlin, 12 A. 882, Justice Spofford, in his concurring opinion, cites several cases supporting Ms own view, viz : 4 M. 0. S. 174; 9 La. 429; 19 L. 571; 5 A. 33; 6 A. 403. In the first mentioned case, ho says: Under the law of Louisiana, as hitherto interpreted, disappointment in the marriage relation, and mere incompatibility of temper, are not causes for a judicial separation between husband and wife; excesses, outrages and cruel treatment, of a nature to render the conjugal life intolerable, are ; but, with this qualification, that the party complaining must be comparatively innocent of conduct similar to that complained of, in order to obtain a decree; mutual insults and outrages, the fruit of mutual provocations, unless there be a just and palpable disproportion of guilt as between the parties, furnish no sufficient ground of action to either.”

• The judgment appealed from is affirmed with costs.


author: Poché, J. Levy, J.

text:
    No. 8362.
    Henry Tebbe et al. L. H. Pease, Transferree, vs. Police Jury, Parish of Jefferson, Left Bank.
    Phis Court has jurisdiction of suit for the levy of a tax to pay three judgments owned by plaintiff, although the amount of each judgment is less than one thousand dollars, if the aggregate amount of the judgments exceeds one thousand dollars.
    In such a suit the right to the levy of the tax prayed for is an issue presented for decision, and the proceeding is not an ordinary execution of a judgment, or of judgments, which aro res judicatce, of the issues involved in the oiiginal suit or suits only, and the right of appeal cannot be defeated by such consideration.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of Jefferson. Halm, J.

      Olios. Louqiie, for Plaintiff and Appellee.

      Wm. Mithoff and Okas. J?. Olaiborne, for Defendants and Appellants.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

L. H. Pease, as transferree of three judgments against the parish of Jefferson, took a rule on the Police Jury, the Sheriff and the Assessor of that parish, with a view to compel the Sheriff and Assessor to levy and collect a tax sufficient to pay his said judgments, and defendant has taken the present appeal from a judgment in favor of plaintiff.

Appellee moves to dismiss the appeal on the grounds:

1. That there appears to be no amount in dispute to give the court jurisdiction.

2. No note of evidence, statement of fact, or assignment of error, appears of record.

3. That the judgment appealed from, orders the sheriff to execute judgments previously rendered and final.

1. Prom the Record it appears to ns that the amount in dispute is the amount of taxes which, under plaintiff’s rule, must be raised to pay and satisfy the three judgments which he holds against the parish, and which amount together to $1376.59, exclusive of interests and costs, and to satisfy which amount plaintiff is seeking, by his proceeding, to obtain a levy of taxes.

The fact that each of the judgments made the basis of his rule, is below five hundred dollars, cannot control the amount'thus shown to he in dispute. The junction of the three judgments together under the. same rale is tlie act of plaintiff himself, and he cannot escape the consequences resulting from his own pleadings.

A similar objection was urged and considered by us, and similarly disposed of in the case of the State ex rel. J. Fisk vs. Police Jury of Jefferson, left bank, opinion book 54, fo. 568.

2. The second ground of appellee’s motion is answered by a reference to the Record, which contains the certificate of the clerk, showing that the transcript in this case contains all the evidence adduced on the trial of the rule; which Record also contains an assignment of errors filed by appellant within ten days after the Record was brought ux>.

This is unquestionably sufficient to give us knowledge of the matters argued or contested below.

We are aware of no rule of law which requires more of an appellant, and appellee has referred us to none, or to no authority in our jurisprudence which goes to support his theory. 28 A. 815; 15 A. 420.

3. The third ground of his motion is answered by the mere fact of liis moving for a rule to compel the levy of tax for the purpose of satisfying his judgments, which could not be executed like ordinary judgments, by the issuance of a writ of fieri facias, but depend for their execution upon a judicial mandate, such as plaintiff was seeking to obtain under the proceeding complained of by appellant as being, in its present form, unwarranted by law. Such a plea certainly presents an issue which must be judicially determined, and which is a proper subject for review on appeal.

The point raised by appellant is not affected by the authorities which he quotes in his brief, but is settled adversely to him, by our decision in the case of Fisk vs. Police Jury, hereinabove quoted, in which this identical issue, was reviewed and settled favorably to the right of appeal.

The motion to dismiss is therefore denied at appellee’s costs.

On the Merits.

The opinion of tlie Oomt, was delivered by

Levy, J.

The same questions are involved in this case as in that of Fisk vs. same defendants, just decided by us, and the reasons given in that decision are applicable hereto.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it. is further ordered that the rule against defendant be dismissed.

Appellee to pay the costs of both courts.