Volume 112 — Louisiana Reports

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by the state against the New Orleans Debenture Redemption Company and others. Judgment for defendants, and the state appeals.</p>

<p>ACTION ON CONTRACT — PLEADING — GENERAL DENIAL — SUIT BY MUNICIPALITY — LEASE —ESTOPPEL TO DENY TITLE.</p> <p>1. A general denial does not conflict with the special defense that the contract sued on was ultra vires of the plaintiff and contrary to public policy.</p> <p>2. Where suit is brought by a municipal corporation to recover money alleged to be due under a contract which has been practically executed upon its part, a citizen and taxpayer has no interest to defeat such recovery upon the ground that the contract was unauthorized.</p> <p>3. As between lessor and lessee, the law recognizes the validity of a lease by one person of the property of another, and it is well settled that he who enters upon and enjoys the possession of property as lessee cannot, by way of defense to an action to enforce the obligations of his lease, contest the title of his lessor, even though he himself may have acquired an adverse and better title.</p> <p>4. As the owner, who voluntarily becomes the lessee of one who has no title to the property leased, is estopped to deny, for the purposes of the lease, that the lessor is the owner, it follows, a fortiori, that a lessee, who cannot pretend to be the owner, is estopped, after enjoying possession, and merely to escape liability for the consideration therefor, to question the title of the lessor from whom such possession was received.</p> <p>5. Where a member of a municipal council actively participates in authorizing contracts involving the use by individuals of property under the control of the corporation, and is himself the principal beneficiary, he is hardly in a position to urge, as a defense to a suit brought to recover the consideration of a contract of that character, the benefit of which he has enjoyed and exhausted, that it was against good morals and public policy.</p> <p>On Rehearing.</p> <p>6. The power of a municipality to make temporary leases of portions of wharves in the interest of commerce has been recognized by our jurisprudence and statutes. Leonard’s Heirs v. Baton Rouge, 4 South. 241, 39 La. Ann. 275; section 15, p. 223, Act No'. 135 of 1898. When the lessee has enjoyed the benefit of such leases, he has no standing to plead that the premises were locus publicus, and that the contracts were, ultra vires.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Eleventh Judicial District Court, Parish of Red River; Charles V. Porter, Judge.</p> <p>Action by Marion Harvin against T. J. Blackman and others. Judgment for plain- ■ tiff, and defendants appeal.</p>

<p>LEASE — CONSTBUCTION—RENEWAL.</p> <p>1. Plaintiff and defendant entered into a lease for 24 months, commencing October 1, 1900, and ending September 30, 1902. The act of lease recited, “The lessee agrees to notify the lessor, or her agent in writing, on or before August 1st, 1902, it being understood and agreed that lessee has a privilege at the expiration of the lease, of renewal for three years at the same rental, in the event that lessor does not wish to occupy same for her own purpose.”</p> <p>On July 29, 1902, the lessee notified the lessor that he availed himself of said privilege of renewal for three years, and lessor received the notice on the 30th of July.</p> <p>On September 13, 1902, the lessor notified the lessee that she desired to occupy the premises for her own purposes on September 30, 1902. In the meantime, on August 13, 1902, she had written the lessee that she was considering, but had not definitely decided, whether she would need the premises, and suggested an interview. Several interviews were held, at which there were suggestions for a further lease for one 3'ear, but they resulted in nothing; and on the 13th of September, 1902, the lessor gave notice of her final decision to lessee. The latter refused at the expiration of the lease to vacate; claiming that by reason of the lessor’s not having, on his informing her on July 30, 1902, that he had availed himself of his privilege of renewal for three years, announced to him on or before the 1st of August that she wished to occupy the premises herself, a lease for three years at the same rental had been ipso facto created between the parties. Held, that this claim was not well founded. Held, also, that it was not essential to the existence of lessor’s right of declining to enter into a renewal of lease that her intended use of the property should have been an immediate use, nor that her intended use should have been a use exclusively to herself.</p> <p>Monroe, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Certiorari to Court of Appeal, Third Circuit.</p> <p>.Action by James Ware against C. P. Couvillion. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant brings certiorari or writ of review.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Erect D. King, Judge.</p> <p>Action by the state against the Philadelphia Underwriters. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Ered D. King, Judge.</p> <p>Action by the state against the Philadelphia Underwriters. Judgment for defendant, and plaintiff appeals..</p>

<p>RES JUDICATA — ESTOPPEL — SUCCESSION — REFUSAL TO ACCEPT — JUDGMENT—COLLATERAL ATTACK — SWAMP LANDS — RAILROAD AID LANDS.</p> <p>1. Whatever force there may be in the general proposition that a judgment as to the ownership of a portion of a tract of land is conclusive between the same parties claiming under the same titles, as to the ownership of the whole tract, the fact remains that a final judgment in a particular case is the law of that case, and when such judgment in terms declares that one title is at issue and another is not, it cannot constitute res judicata as to the title held to be not at issue.</p> <p>2. A litigant denying a certain proposition of law and fact, and obtaining a judgment sustaining his position, cannot thereafter be heard to assert that which he had thus denied,, though his opponent is entitled to whatever advantage may thereafter be gained by such adverse ruling.</p> <p>3. Where the heirs have not accepted a succession, an administrator may stand in judgment for the purposes of a suit pending against the de eujus at the date of his death for the recovery of immovable property.</p> <p>4. Where it appears that by consent of counsel and final judgment of this court an appeal taken by an administrator has been dismissed, the fact that the administrator was discharged before the rendition of the judgment of dismissal affords no ground for a collateral attack upon such judgment. The presumption is that the counsel with whose consent the judgment was rendered was properly authorized, and such presumption is not weakened when it appears that during 35 years the parties in interest have made no suggestion to the contrary.</p> <p>5. The swamp land acts of Congress of 1849 and 1850 (9 Stat. 352, 519) were not intended to operate against the will of the state, and, the state having failed to select, and the Secretary of the Interior having failed to approve, certain lands, as falling within the terms of those statutes, and such lands having been certified to, and accepted by, the state under the act of Congress of 1856 (31 Stat. 18), granting lands in aid of railroads, the title thus acquired by the railroads cannot be defeated by an individual claiming to have purchased the lands as swamp lands, and whose title has been annulled at the suit of the state.</p> <p>(Syllabus by the Court.).</p>

Certiorari from Court of Appeal, Third Circuit. Action by the Southern Grocer Company, Limited, against F. Brooke Adams. The S. R. Hughes Company, Limited, and others, intervene. Judgment for plaintiff for a part of the relief demanded, and plaintiff appealed; and from an order of the Court of Appeal affirming the judgment, plaintiff brings certiorari or writ of review.

<p>APPEAL — WHEN LIES — PARTITION—PBOCEDUEE.</p> <p>On Motion to Dismiss.</p> <p>1. An appeal lies at the instance of the parties cast, or either of them, from a judgment, not rendered by consent, decreeing the partition of property of which one of said parties, not a co-owner, is usufructuary.</p> <p>On the Merits.</p> <p>2. Heirs have the legal right to insist upon the partition in entirety of the property inherited by them. They cannot be forced to a partition of specific properties in successive actions.</p> <p>3. In such suit all properties, wherever situated, must be brought in for partition.</p> <p>(Syllabus by the Court.)</p>

W. Ellis, Judge. In the matter of the succession of Maximilien A. Dauphin. Action by Sherburne G. Choppin and others against Rosa L. Dauphin. Judgment for petitioners, and defendant appeals.

<p>APPEALABLE ORDEE — HOMESTEAD EXEMPTION-APPEAL — REVIEW.</p> <p>1. When three horses have been seized, and judgment has been rendered ordering two of them be released as exempt from seizure under the homestead law, without specifying which two, and a rule has been taken to supplement the judgment by deciding which two of the horses should be released, held, that the judgment on this rule is appealable to the Supreme Court, it involving a homestead right, and it being, besides, merely incidental to the main judgment, which admittedly was appealable to the Supreme Court, as involving a homestead right.</p> <p>2. If the judgment appealed from was founded on the fact that one of the horses was not a work horse, but an unbroken two year old, it was correct, for the constitutional exemption calls for work horses, not unbroken colts.</p> <p>3. The judgment appealed from, in so far as founded on the facts, cannot be reviewed by this court in the absence of the facts, and can only be affirmed as presumably correct.</p> <p>4. Either none or all of the testimony must be taken down in writing, and the court may refuse the request to have the testimony reduced to writing, if not made at the beginning of the trial.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOR AND PURCHASER — SALE — DEFICIENCY IN QUANTITY — REDUCTION IN PRICE.</p> <p>1. Plaintiffs bought the property forming the corner of Carondelet and Perdido streets, measuring 31 feet on Perdido street, by a depth on Carondelet street of 100 feet.</p> <p>The property measures 21 feet and some inches on Perdido, by the depth above stated.</p> <p>The sale was not one per aversionem, and. without reading out of the deed the measurement as stated, the court found no ground upon which to hold that there is no cause of action for a diminution of the price.</p> <p>The difference between the two measurements is deducted from the price.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; Gregory Horatio Couvillon, Judge.</p> <p>Action by Charner W. Lyles and others against Chester F. Knoll. Judgment for defendant, and plaintiffs appeal.</p>

Porter, Judge. Action by the city of Shreveport against T. J. Tidwell, president of the police jury of Bossier parish. Judgment for plaintiff, and defendant appeals.

<p>CRIMINAL LAW — PREMATURE APPEAL.</p> <p>1. No final decree has been entered. The appeal is premature. The questions involved cannot be reviewed on appeal at this period in the history of the litigation.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the state, on the relation of Duffy & Behan, for writs of prohibition and certiorari to the civil district court for the parish of Orleans.</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by Judson Harris against the Louisiana Machine & Wellworks Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge.</p> <p>Action by Katie L. Schoppel and Albert S. Beecher against Anna Daly and David Daly. Judgment for plaintiffs, and defendants appeal.</p>

<p>PETITORY ACTION — PRESCRIPTION — EVIDENCE.</p> <p>1. Both plaintiff and defendant trace their title to the same author, whose land entry appears to have been regularly made.</p> <p>2. The returns of the register and receiver set forth that the entry had been regularly made. The survey of authorized surveyors duly returned to the government shows that there had been a complete segregation of the land from the public domain. The title was in the grantee named.</p> <p>3. With his consent, the right acquired by the grantee passed to another person by informal act.</p> <p>Over 30 years ‘ago the latter transferred the title by deed in regular form, for adequate consideration, to a purchaser who went into possession.</p> <p>Over 30 years ago he sold it to another third person, equally in good faith.</p> <p>Ten years had elapsed when this suit was brought against defendant, who held the title of the original grantee through mesne conveyance.</p> <p>The plea of prescription is sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Leche, Judge.</p> <p>Action by Arselie Simoneaux and others against the White Castle Lumber & Shingle Company, Limited. Judgment for defendant, and plaintiffs appeal.</p>

<p>LICENSE — DEALEE IN EIEEABMS — VALIDITY.</p> <p>1. Act No. 83, p. 132, of 1900, imposing a license on dealers in pistols and pistol cartridges, is unconstitutional, in that the license imposed by it is not graduated.</p> <p>Breaux, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of Iberia; T. Don Foster, Judge.</p> <p>Action by Henry Waggoner against Achille J. Maumus. Judgment for plaintiff. Defendant appeals.</p>

<p>MUNICIPAL BONDS — LIMITATION.</p> <p>1. Article 281 of the Constitution of 1898 prohibits the imposition of special taxes, to secure the payment of municipal bonds, exceeding five mills on the dollar “in any one year.”</p> <p>(Syllabus by the Court.)</p>

<p>RAILROAD CROSSINGS — DANGER—PRECAUTIONS— CONTRIBUTORY NEGLIGENCE — ACTION —WRONGFUL DEATH.</p> <p>1. If a railroad company, in the management of its traffic, causes unusual peril to travelers, it should meet such peril by corresponding precautions. So, where the crossing- is especially dangerous on account of its locality or mode of construction, or because the view is restricted or the track is curved, it is the duty of the company to exercise such care and take such precautions as the dangerous nature of the crossing requires. If the city council fails to pass ordinances called for by existing conditions, the company should, of its own motion, make a regulation to that effect, and notify its employes; but the latter are held, without notice, to have had knowledge of the visible dangerous conditions, and bound, without specific directions, to take the steps necessary for the public safety.</p> <p>2. Where trainmen have reason to believe there are persons in exposed positions on the tracks, as over unguarded crossings in populous districts in cities, or where the public are wont to cross with such frequency and numbers as to be known to them, they will be held to a knowledge of the probable consequences of not taking proper care and precautions, and their employers will be responsible for injuries received in consequence thereof, notwithstanding there was negligence on the part of the person injured, and no fault on the part of the servant after seeing the danger.</p> <p>3. The general public are not called upon to know or take in at a glance that the space between parallel tracks in a city is not wide enough to afford protection to persons standing on that space, or to know the length and width of the cars used upon the road. A person has the right to assume that the width is sufficient, and to assume that it was not likely that two cars would pass each other, moving, while he was in that position.</p> <p>On Rehearing.</p> <p>4. Under the provisions of Act No. Jl, p. 94, of 1884, amending and re-enacting article 2315 of the Revised Civil Code of 1S70, two causes of action arise when the deceased left a widow and minor children — one to recover the damages which the father might have recovered if he had survived the injury, and the other founded on his death. Before the adoption of Act No. 71, p. 94, of 1884, the first cause of action was-joint, but that act provides that it shall survive in favor of the “minor children or widow, or either of them.”</p> <p>5. Hence, when the widow sues alone, a judgment in her favor exhausts the first cause of action, leaving to the minors only a right of action to recover the pecuniary loss sustained by them by reason of'the death of the father.</p> <p>(Syllabus by the Court.)</p>

<p>ACCOUNTING — EVIDENCE.</p> <p>1. This case involves only questions of fact.</p> <p>(Syllabus by the Court.)</p>

Dagg, Judge. Action by George Prince and others against the police jury of Concordia parish and. others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.</p> <p>Action by Michael Nuss against Margaret B. Nuss and others. Judgment for defendants, and plaintiff: appeals.</p>

<p>MURDER — EVIDENCE—QUESTION EOR JURY-COOLING TIME.</p> <p>1. On the trial of the defendant for murder, he offered to prove by his daughter that about 30 minutes before the homicide she had told her father that, two days before the homicide, the deceased had gone to her house and outraged her person; that this was the first time she had met her father since the occurrence; that, on being so told, he left her, and, returning in' about 30 minutes, told her he had killed the deceased. Objection being made on the ground that the testimony was irrelevant, immaterial, and incompetent, and would not justify or excuse the killing, the court sustained the objections. Held, that the testimony was not irrelevant, incompetent, or immaterial, but might have had an all-important bearing in the case, not for the purpose of justifying or excusing the homicide, but possibly reducing the offense from murder to manslaughter, as having been done in hot blood and the heat of passion, on adequate provocation. The accused had the right to present his defense from that standpoint to the jury. The facts themselves which were urged in defense were authorized to be shown, and, being shown, it was for the jury to determine as a fact, and not for the court to decide (thereby practically cutting off the defense), whether there had been sufficient cooling time, or not, to bring the case down to one of manslaughter. Juries, in Louisiana, are, in criminal cases, judges both of the law and the evidence. The question of reasonable “cooling time” is one of fact. Rex v. Playward, 6 Car. & P. 1; Rex v. Lynch, 5 Car. & P. § 24; Wharton’s Criminal Law (4th Ed.) § 900; 1 Russel) on Crimes; Rice on Criminal Evidence, § 369, pp. 592, 593.</p> <p>(Syllabus by the Court.)</p>

<p>EXPROPRIATION — JURY OF FREEHOLDERS — CORPORATION — LEGAL EXISTENCE — DENIAL.</p> <p>1. The provisions of the Civil Code and Revised Statutes of 1870 relative to juries of freeholders in expropriation suits have not been amended or repealed by the general jury act of 1898 (Act No. 135, p. 216). A special statute enacted on a particular matter is not affected by a general statute, subsequently enacted, on the same subject-matter, containing different provisions. Welch v. Gossens, 25 South. 472, 51 La. Ann. 852.</p> <p>2. In an expropriation suit, where the legal existence of a Kentucky consolidated 'corporation, plaintiff, is specially denied, and the evidence shows that articles of consolidation were executed and filed in accordance with the local law, but fails to show compliance by the constituted companies with the provisions of the Constitution of Kentucky adopted in 1891, requiring pre-existing corporations to accept the provisions of that Constitution before they shall have the benefit of future legislation, the case will be remanded for further evidence and proceedings according to law.</p> <p>(Syllabus by the Court.)</p>

In the matter of the succession of John M. Wiemann. Edna R. Wiemann interposed an opposition. From the judgment, certain of the parties appeal.

<p>ADMINISTBAT0K _ ACTI0N agaiNST SURETIES— JOINDER OE PARTIES — APPEAL — DISMISSAL-EVIDENCE— CARRYING ON DECEDENT’S BUSINESS-RELEASE OE SURETY.</p> <p>1. Where a judgment has been rendered in favor of two persons against an administrator, and execution has issued thereunder and has been returned unsatisfied, the beneficiaries of such judgment may join in an action against the sureties of the administrator, and the action so brought will not be dismissed for an improper joinder of plaintiffs because, on a devolutive appeal subsequently taken it is held that the judgment relied on was unauthorized quoad one of the parties in whose favor it was rendered.</p> <p>2. An unauthorized judgment against the principal, which is reversed on a devolutive appeal, will not support an action, brought pending the delay for appeal, against the sureties on an administrator’s bond.</p> <p>3. In an action against the sureties on an administrator’s bond, a judgment previously obtained against the administrator is admissible in evidence, but it is not conclusive, as against the sureties, with respect either to the fact or the extent of the breach by the administrator of the obligations of the bond.</p> <p>4. The record of a succession, for the faithful administration of which a bond has been given, is good evidence, in a suit against the sureties, as to the manner and result of such administration.</p> <p>5. Where there are minors interested, their consent, with that of the major heirs, is insufficient to authorize the administrator to carry on a commercial business belonging to the succession, and the minors are not estopped to hold him and his sureties liable for the consequences.</p> <p>6. A surety upon an administrator’s bond cannot, by an ex parte judgment, or a judgment rendered contradictorily with the administrator alone, obtain a discharge with respect to a breach of the obligations of the bond which has occurred before the obtention of such judgment.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Criminal District Court, Parish of Orleans; Joshua C. Baker, Judge.</p> <p>Andrew Hauser was convicted of forgery, and appeals.</p>

In the matter of the Immanuel Presbyterian Church in liquidation. Opposition to accounts of Beceiver Duncan Jones. Order homologating the account so far as not opposed, and opponents appeal.

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>Action by C. E. N. Whitworth and another against the Shreveport Belt Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of St. Bernard; Robert Hingle, Judge.</p> <p>Action by Thomas Favalora against the police jury of the parish of St. Bernard. Judgment for defendant, and plaintiff appeals.</p>

<p>COMMUNITY PROPERTY — SUIT BY HEIRS — ISSUES.</p> <p>1. In a suit by the heirs of the wife to recover their share of the community property alienated by the husband after the death of the wife, the question of the solvency or insolvency of the community cannot be inquired into.</p> <p>(Syllabus by the Court.)</p>

Application by the state on the relation of the Equitable Life Assurance Society of the United States, for writs of mandamus and prohibition to the Court of Appeal for the parish of Orleans and others.

.Appeal from Civil District Court, Parish of Orleans; Fred D. I-Clng, Judge. Application by the state, on the relation of W. S. Benedict, for writ of mandamus to the city of New Orleans and others. Judgment for relator, and defendants appeal.

<p>SPECIFIC PERFORMANCE — CONTRACT OF LEASE— PARTIES.</p> <p>1. In a suit by a lessee for a specific performance of contracts of lease and for damages, the parties with whom plaintiff contracted, to wit, the owner and original lessee, and a third person, to whom the premises were fraudulently leased, are properly joined as codefendants.</p> <p>(Syllabus by the Court.)</p>

<p>CRIMINAL LAW — NEW TRIAL — NEWLY DISCOVERED EVIDENCE.</p> <p>1. The refusal of the trial judge to grant a new trial based upon a claim • of discovery of new evidence is in this case sustained for the reasons by him assigned.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; T. Don Foster, Judge.</p> <p>Philip Daleourt and others were convicted of larceny, and appeal.</p>

Application by the state, on the relation of the Bayou Sara Lumber Company, Limited, for writs of mandamus and prohibition to H. F. Brunot, judge of the Twenty-Second Judicial District Court.

Application by the state, on the relation of Robert B. Blanks, against S. D. S. Walker, Justice of the Peace, Fourth Ward, parish of Caldwell, for a writ of certiorari and prohibition.

Paul, Judge. In the matter of the succéssion of Owen Glancey. Action by the heirs of Owen Glancey against Margaret Glancey and others for partition. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Mary C. Getman against Mary L. Harrison. Judgment for plaintiff. The adjudicatee, D. B. H. Chaffe, defendant in rule on seizure and sale, appeals.</p>

<p>PLEDGE — BIGHTS OF PLEDGEE — TBANSEEB OP . STOCK — MANDAMUS.</p> <p>1. Where an act of pledge, whereby, in the event of the failure of the pledgor to pay at maturity the debt to secure which the pledge is given, or in the event of his failure to fuinish additional security when required, the pledgee is authorized to sell the- pledged property, consisting of stock in a corporation, and to become the owner thereof by purchase, is made the basis of a continuing credit, which is used for the purposes of successive debts, varying in amounts, the pledgee, who admits that he is not the owner, and neither alleges nor proves an existing or past-due debt or other consideration, which, under his contract, would entitle him' to become the owner of the pledged stock, cannot malte himself the owner thereof in a manner and under conditions not contemplated by such contract, and has no standing for the purpose's of a suit to compel its transfer to him on the books of the corporation and the issuance of new certificates.</p> <p>2. Where a litigant, alleging that he is the pledgee of stock in a corporation, brings suit in that capacity, to compel the corporation to transfer such stock and issue new certificates to him, and the corporation sets up the defense that the pledgor, as one of its members, is without right to transfer his stock in disregard of its charter and of its rights thereunder, and it is found that the pledgee has no standing in his own right to demand the judgment prayed for, a possible inference, arising from testimony given by him that the pledgor may be willing or anxious that it should be done, affords no sufficient reason for the rendition of, such judgment, or for an inquiry into the merits of the controversy between the pledgor and the corporation.</p> <p>(Syllabus by the Court.)</p>

<p>MORTGAGE — CONSTRUCTION—EIGHT TO FORECLOSE.</p> <p>1. Where A. acknowledged his indebtedness to B. and C. in the sum of $12,000, for $3,000 in cash, and their indorsement of certain notes executed by A. in favor of D., and, in evidence of said indebtedness, executed and delivered to B. and C. his note for $12,000, due one year after date, payable to his own order, and by him indorsed in blank, and specially mortgaged certain real estate to secure the payment of said note at maturity; and where it was expressly stipulated that, on the nonpayment of said note at maturity, B. and C., or any future holder or holders, should have the right to foreclose said mortgage by executory process, held, that B., on producing said note and a certified copy óf the act of mortgage, was entitled to a decree of foreclosure, without proving that the indorsers had paid the notes in favor of D., this right to sue having been expressly conferred by contract on the indorsers or holder of said note.</p> <p>(Syllabus by the Court.)</p>

<p>MORTGAGE — VALIDITY—PAYMENT IN CHATTELS —EVIDENCE—APPEAL—EXECUTORY PROCESS.</p> <p>1. The mortgage debt is not rendered uncertain., or insusceptible of enforcement by executory process by the fact that in the mortgage act the faculty is reserved to the debtor to pay the debt by the delivery of timber before the maturity of the debt.</p> <p>. 2. The following indorsement on a note, “Interest paid up to 1st of January, 1903,” will, in the absence of contrary proof, be taken to be evidence of a payment.</p> <p>3. Where, on appeal, it is found that executory process has issued for too large an amount, all proceedings had from and after the granting of the order of seizure and sale will be set aside, and the plaintiff taxed with the costs thereof; but the order itself will be only reduced, not set aside.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Leopold Cafiero was convicted of murder, and appeals.</p>

<p>BUSINESS CORPORATION — RECEIVER — APPOINTMENT.</p> <p>1. A receiver will not be appointed for a business corporation where the allegations of a stockholder — asserting also that he is a creditor —of misapplication of property and funds, of violation of his rights, and of imminent danger to his interests, are not sustained by the evidence adduced.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL — REVIEW.</p> <p>1. The matter involves only a question of fact.</p> <p>(Syllabus by the Court.)</p>

, Judge. Action by the parish board of directors against J. O. Hebert, sheriff, and Simonet Le Blanc, clerk of court. Prom the judgment plaintiff and the clerk appeal.

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; E. B. Talbot, Judge.</p> <p>Action by ,H. Charles Sicard and others against Nicholas Schwab and others. Judgment for plaintiffs, and defendant Schwab appeals.</p>

<p>Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupée; E. B. Talbot, Judge.</p> <p>Action by H. C. Sieard and others against Ferdinand Gumbel. Judgment for plaintiffs, and defendant appeals.</p>

King, Judge. Action by Joseph Palacie against John H. Gardiner. Judgment for defendant, and plaintiff appeals. The following is the sketch referred to in the opinion:

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Ered D. King, Judge.</p> <p>Action by Margaret Ingram against Charles Heintz and Emma Heintz. Judgment for plaintiff, and defendants appeal.</p>

P. Brunot, Judge. Action by J. T. Young, sheriff and tax collector, against the parish of East Baton Rouge. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Zenon P. Landry and wife against the New Orleans Shipwright Company, Limited, and others, to recover for death of plaintiffs’ son. From a judgment refusing a new trial to defendants other than the shipwright company, on condition that plaintiffs enter a remittitur reducing the amount of the verdict, said defendants appeal.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by John Vincent Sadler against Thomas J. Henderson. From a judgment for defendant, plaintiff appeals.</p>

Don Foster, Judge. Consolidated proceedings by the mayor and board of trustees of the town of New Iberia to compel the Moss Hotel Company, Limited, and others, to pay a license tax as retail liquor dealers. From a judgment for plaintiff, defendants appeal.

Application by the state of Louisiana, on the relation of Rudolph P. Ribbeck, for writs of certiorari and prohibition to T. Don Foster, judge of the Nineteenth Judicial District Court, and L. O. Hacker, judge ad hoe.

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; James M. Thompson, Judge.</p> <p>Action by Joseph S. Bossier against Philip F. Herwig and others. From a judgment for defendants, plaintiff appeals.</p>

Action by Louis R. Alba against the Provident Savings Life Assurance Society of New York, in which Eustace J. Sherman, under-tutor of the minor Rhea Marie Philomene Bachemin, intervened. From a judgment maintaining the exception of plaintiff, said undertutor appeals.

<p>PARTITION— CITr LOTS — MANNER OE SALE.</p> <p>1. Where a city lot is asked to be sold to effect a partition, it is error to order the lot to be sold as two lots, when it is being held and used as one lot, and nothing shows that to sell it as two lots would manifestly be to the interest of the parties; and it makes no difference that the lot was originally so divided.</p> <p>(Syllabus by the Court.!</p>

Application by the state of Louisiana, on the relation of the Hudson Lumber Company, against M. F. Machen, judge, and others, for writs of certiorari, prohibition, and mandamus.

<p>Appeal from Recorder’s Court of New Orleans; Fred. Deibel, Sr., Judge.</p> <p>Charles Macheca was convicted of selling liquor without a license, and appeals.</p>

<p>APPEAL — BOND — AMOUNT — SUSPENSIVE AP-</p> <p>PEALS — DISMISSAL.</p> <p>1. Even if the rule de minimis applies to appeal bonds, it cannot cure a deficiency of $32.91 in a suspensive app'eal bond of $15,032.91.</p> <p>On Rehearing.</p> <p>2. Where the order of court granted a suspensive appeal without fixing the amount of bond, and the appellant gave bond which did not exceed by one-half the amount of jud?;ment with accrued interest, the appeal will be dismissed.</p> <p>3. Where the order of appeal fixes no amount, there can be no devolutive appeal, and there can be no suspensive appeal unless the appellant gives his bond, with good and solvent security, “for a sum exceeding by one-half the amount for which the judgment was given.” Code Prac. arts. 575, 578.</p> <p>(Syllabus by the Court.)</p>

<p>MASTER AND SERVANT — INJURY TO SERVANT-PROXIMATE CAUSE — PROTECTION AGAI .ST INJURY-DUTY OP MASTER — RISKS ASSUMED.</p> <p>1. If a break occurs in machinery, and a woi'kman undertakes to mend it, and is injured, the causes which brought about the bieak are only the remote causes of the injury, and juridically are not its causes at all.</p> <p>_ 2. The master is under no obligation to provide a hood or guard for inner and ordinarily inaccessible parts of machinery.</p> <p>3. If there is a safe and an unsafe way of doing a thing, and the servant knows it, or ought to know it, and chooses the unsafe, and is injured, he cannot recover against the master for the injury.</p> <p>4. The master is under no obligation to keep his premises so lighted that all repair work may be done without the necessity of additional light. If such additional light is needed for repair work, and the servant, instead of procuring it, undertakes to do the work without it, and is injured, he cannot recover against the master.</p> <p>(Syllabus by the Court.)</p>

B. Talbot, Judge. Application by the widow in community of Homer Nereaux, deceased, to be appointed administratrix of decedent’s estate. The application was opposed by Norbert Nereaux, and from the judgment opponent appeals.

<p>INSURANCE — APPLICATION—WARRANTIES—REPRESENTATIONS — SUICIDE — FINDINGS OP COURT OP APPEAL — WRIT OP REVIEW.</p> <p>1. In an application for life insurance, a negative answer to the question, “Do you use spirituous, malt, or vinous liquors?” is not false when the answerer partakes of intoxicating liquors only occasionally and temperately.</p> <p>2. A clause in a life insurance policy reading, “If I die by my own hand or act, voluntary or involuntary, sane or insane,” is a mere ordinary suicide clause, and is not violated by an act done without suicidal intent.</p> <p>3. The pronounced leaning of our jurisprudence is against finding that there has been suicidal intent, where the facts will possibly admit of a different construction.</p> <p>4. This court is extremely reluctant to disturb,, on writ of review, the findings of fact of the-court of appeal.</p> <p>On Rehearing.</p> <p>5. The Supreme Court has authority to review conclusions of fact reached by the court of appeal, but -only does so in exceptional cases. State ex rel. Satcho v. Judge, 21 South. 690,. 49 La. Ann. 235.</p> <p>6. In reaching their conclusions as to whether a person has committed .suicide, courts are not tied down by the rigid rules of the criminal law. They are authorized to act upon circumstantial as well as direct evidence. The presumptions upon which they act should be weighty, precise, and consistent.</p> <p>7. The death of a person resulting from morphine administered by himself is in one sense death from his own hand, but it is not necessarily suicide. Kling v. Accident Association, 29 South. 332, 104 La. 766.</p> <p>8. The mere fact itself that an application for insurance may be annexed to and made part of the policy of insurance does not carry with it necessarily, as a consequence, that all the statements and declarations contained therein should be held to be “warranties,” though the failure so to annex the application and make it part of the policy would leave them to be dealt with as “representations.”</p> <p>9. When 'the situation is such in a particular case as will, as a matter of law, carry with it forfeiture of the policy as a penalty, that result will follow, whether it has been expressly stipulated for and declared or not.</p> <p>10. Nothing in the application or policy in this case, nor in the defendant’s pleadings, can be held to be admissions that the answers of the assured to questions -propounded to him by the medical examiner were mere “representations” in their character.</p> <p>11. A matter specifically inquired about in a question propounded by an insurance company to a party seeking to obtain a policy of life insurance, and the answer thereto, are equal to an agreement that the matter inquired about is material, and any misrepresentation in the answer will avoid the policy, though the matter may not have been really material to the risk in the particular case.</p> <p>When answers made by a party in his application for a policy of life insurance to questions propounded to him by the insurance company were such as might have influenced the company in determining whether to accept the risk and in determining what premium to charge, the answers must be truthful.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by Daniel Buechner and wife against the city of New Orleans to recover damages for personal injuries. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by August Baquet against the New Orleans & Carrollton Railroad, Light & Power Company to recover for personal injuries. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Twelfth Judicial District Court, Parish of De Soto; John Bachman Lee, Judge.</p> <p>John Boykin was convicted of crime, and appeals.</p>

<p>APPELLATE JURISDICTION — DECISIONS REVIEW - ABLE — NATURE OE SUBJECT-MATTER — REJECTION OE DEMAND TO BE REGISTERED AS. VOTER.</p> <p>1. In the absence of allegation and proof, or even allegation, that the matter in dispute exceeds the sum or value of $2,000, this court is without jurisdiction of an appeal from a judgment rejecting a demand to be registered as a voter by an applicant who alleges that he does not possess the qualifications required by either of sections 3 or 4 of article 197 of the Constitution, and who is neither seeking nor resisting the striking olf of the names of persons said to have been unlawfully registered under those sections.</p> <p>(Syllabus by the Oourt.)</p>

<p>Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Albert Campbell Allen, Judge.</p> <p>Action by the Ramos Lumber & Manufacturing Company against H. J. Sanders and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Nineteenth Judicial District Court, Parish of St. Martin; T. Don Foster, Judge.</p> <p>A. S. Woods was convicted of forgery, and appeals.</p>

<p>Appeal from Sixteenth Judicial District ■Court, Parish of St. Landry; Edward Taylor Lewis, Judge.</p> <p>Yves Fontenot and another were convicted •of a crime. Defendant Zack Fontenot appeals.</p>

<p>DONATIONS INTER VIVOS — RIGHTS OF DONOR’S HEIRS — ENFORCEMENT OF LEGITIMETHIRD POSSESSORS.</p> <p>1. When property donated by act inter vivos by a father or mother to a person not an heir is sold by the latter, the third possessor, when proceeded against by the forced heirs of the donor for enforcement of their legitime upon the property itself, can repel the demand by offering to pay the heirs their money.</p> <p>2. The third possessor owes fruits or rents only from judicial demand.</p> <p>(Syllabus by the Court.)</p>

Suit by Edward A. Hutchinson and another against the executors of the will of Alexander C. .Hutchinson, deceased, to set aside a certain paragraph of the will. From a decree upholding the will, plaintiffs appeal.

<p>ASSIGNMENT OE DEBT — NOTICE—TITLE—CREDIT-OBS OE ASSIGNOR — BIGHTS.</p> <p>1. Where the owner of a claim for money assigns the same to another, who notifies the debt- or, the assignment, as a matter of form, is complete, and the assignee becomes the owner of .the claim.</p> <p>2. No particular form of notice, ordinarily speaking, is necessary to perfect the assignment of such a claim; and where a municipal corporation, as a matter of convenience to itself, requires that the assignment, in writing, shall be deposited with a designated officer, and that he shall make an entry thereof in his books, the requirement is sufficiently complied with, and the notice is sufficient, if the assignee deposits the assignment with such officer, though the latter may fail to make the entry as required.</p> <p>3. Where inquiry is made as to the real purpose of the transaction, and it is ascertained that the assignment of the claim is made in payment of a debt due to the assignee, and upon the further condition and consideration that the assignee shall devote the surplus to be realized, over and above the amount needed for such payment, to the payment of debts due by the assignor to other persons, in whose favor and with whose consent the assignee, to that extent, binds himself by written contracts, the legal title to the entire claims vests in the assignee, and the equitable title, quoad such surplus, in the other creditors; the title of the assignee, both legal and equitable, is devested; he loses control of the property; and, in the absence of fraud, legal or actual, it cannot rightfully be attached at the suit of other creditors.</p> <p>4. An issue which is not raised by the pleadings, and which has not been presented in argument, either in the district court or the Court of Appeal, will not bo considered in this court upon the hearing of an application for the review of the judgment of the Court of Appeal.</p> <p>(Syllabus by the Court.)</p>

<p>GUARDIANS — AUTHORITY TO SUB — FAMILY MEETING — PARTITION—SALE—RATIFICATION.</p> <p>1. This is an action by plaintiff to compel the defendants to accept the title tendered.</p> <p>2. The property could not be divided in kind, and in consequence a partition by licitation was ordered at the instance of a foreign guardian.</p> <p>3. No family meeting was held to authorize the guardian to sue for a partition. A.family meeting was held, the guardian failed to ask for needful authorization to bring suit, and it (the family meeting) passed on other questions relating to the minor’s interest in the partition.</p> <p>It (the failure to obtain power authorizing the suit) has the appearance of an oversight.</p> <p>The property was sold on the terms and conditions recommended by this family meeting.</p> <p>4. Under article 178S, Civ. Code, whatever irregularity there may be can be cured, and the sale ratified, by calling a family meeting to ratify and validate the sale, if such ratification and validation be necessary.</p> <p>5. The interest of a minor being involved, the adjudicatee of the property has the right to require that every and each formality be complied with or completely ratified.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish, of Orleans; Fred D. King, Judge.</p> <p>Action by Cornelius J. O’Donnell against the American Manufacturing Company, Limited. From a judgment for defendant, plaintiff appeals.</p>

<p>MASTER AND SERVANT — PERSONAL INJURIES— EVIDENCE — SUFFICIENCY—CONTRIBUTORY NEGLIGENCE. ,</p> <p>1. The lines of the Vicksburg, Shreveport & Pacific Railroad Company and of the Arkansas Southern Railroad Company cross at right angles at Ruston. The business of the companies at that point not requiring two switching engines and crews, an arrangement was made by which the switching- required for its purposes by the Arkansas Southern was to be done by a switch engine and crew of the other company; the latter receiving pay for the work according to the number of ears switched. A coal car with which the Arkansas had no connection having been placed in its yards by the mistake of the agents of the Vicksburg, Shreveport & Pacific Railroad Company, a switching engine and crew of the latter company was sent to withdraw it, and, in the act of doing so, one of the switching crew was, while the engine was on the tracks of the Arkansas Southern Railroad Company, thrown from the car and killed, as it was alleged, by the reckless operation of the same over a bad track. Held, that the Arkansas Southern Company was not responsible to the employes of the Vicksburg, Shreveport & Pacific Railroad Company for the faulty operation of the switching engine by those in charge of it. The bad condition of the track was not the proximate cause of the accident, and there was no privity between the Arkansas Southern Railroad Company and the employe of the other company.</p> <p>2. The Vicksburg, Shreveport & Pacific Railroad Company is held not responsible for the death of the switchman, it Appearing he was thrown or fell from the car as the direct result of his own recklessness or imprudence.</p> <p>(Syllabus by the Court.)</p>

<p>NOTES — INDORSEMENT—SURETIES—ORDER OF INDORSEMENT — PRACTICE—OBJECTION TO EVIDENCE.</p> <p>1. The time when, or the order in which, indorsements were made on a promissory note,, may be shown by parol.</p> <p>2. The words “indorse” and “indorser” have a popular as well as a technical meaning; hence from the circumstance that they, and they alone,, were used in a conversation in which a person was asked and consented to put his name on the back of a note for the purpose of increasing its commercial value, it does not necessarily follow that the person signed as indorser merely, and not as surety.</p> <p>3. Protest is necessary as against the indorser of a promissory note, but not as against the maker or the surety; hence the act of a bank in causing a promissory note to be protested, and the indorser to be notified, gives rise to a strong inference that the indorser was considered to be an indorser in the technical sense, and. not a surety.</p> <p>4. Where a note is indorsed by the payee and by another person, the presumption will be-that the other person is a surety, or an indorser in the technical sense, according to the order of the signatures. If his signature is above that, of the payee, he.will be presumed to be a surety ; and if it is below, he will be presumed to be an indorser. A bank president is presumed to know this. Hence when, in transferring an indorsed note of which his bank is payee, he puts his name above that of the indorser, his act gives rise' to a strong implication that he did so because he knew the indorser was not a surety, but an indorser in the technical sense.</p> <p>5. In this case the note was protested one day late, so that the indorser was released if he was an indorser in the technical sense, and not a surety; and thereafter the bank held the note-for two years and a half without exacting payment of the indorser, and then transferred the-note to the plaintiff without recourse. Meld, that the conduct of the bank in thus protesting the note, and in so indorsing it, when taken in connection with the long delay, and. with the indorsement without recourse, gives rise to the inference that the bank understood the indorser to have been an indorser in the technical sense, and not a surety, and to have been released by the failure to protest timely.</p> <p>6. The fact that the court' has taken under advisement an objection made by defendant to parol evidence does not relieve plaintiff of the necessity of reserving- his objections to any objectionable parol evidence that the defendant may offer.</p> <p>(Syllabus by the Court.)</p>

<p>Application for writs of certiorari and prohibition, on relation of St. Cry Etie, against' T. Don Foster.</p>

<p>STREET RAILWAYS — PERSONAL INJURIES — NEGLIGENCE — DUTY OF HOTONEER — EVIDENCE— SUFFICIENCY.</p> <p>1. In a case sounding- in damages growing out of a collision between an electric car and a float, the crowded street rendered it -necessary to be more than usually careful.</p> <p>2. It devolved upon the fioatman not to attempt to cross in face of danger, and the moConeer to hold his car under control so as to be able to stop within the shortest possible distance. The failure was with the latter.</p> <p>3. The court carefully examined the testimony, and, after consideration, concluded that the weight of the testimony was with plaintiff, and affirmed the verdict of the jury and the judgment of the district court.</p> <p>On Rehearing.</p> <p>4.The amount allowed by the verdict was reduced, as will be seen by consulting the decree.</p> <p>(Syllabus by the Court.)</p>

Martin; T. Don Poster, Judge. Application by the state, on the relation of J. I-I. Resweber and another, against Gilbert Durand, registrar, for a writ of mandamus. Prom a judgment for relators, defendant appeals.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by A. L. Lyons against W. R. Fry, in which defendant reconvened. From a judgment dismissing his reconvention, he appeals.</p>

<p>Appeal from Fourth Judicial District Court, Payish of Lincoln; R. B. Dawkins, Judge.</p> <p>Action by Mrs. W. C. Stewart and another against the Arkansas Southern Railroad Company. From a judgment for plaintiffs, defendant appeals.'</p>

<p>HUSBAND AND WIRE — DIVORCE—RECONCILIATION.</p> <p>1. A reconciliation between spouses after facts have occurred which would give rise for an action for divorce, or for separation from bed and board, has the same effect in Louisiana as “con-donation” does in the common-law states. That effect is set out in article 153 of the Civil Code.</p> <p>2. The present action is one by a wife for separation from bed and board from her husband. The judgment in favor of the plaintiff is affirmed on the facts shown.</p> <p>(Syllabus by the Court.)</p>

Action by Fred Endom and another against the city of Monroe and another. From a judgment for defendants, plaintiffs appeal.

Tammany; Ered D. King, Judge. Action by Leopold Levy against George H. Gause and another. From a judgment for plaintiff for a part of the relief sought, plaintiff appeals, and defendant Gause joins in the appeal.

Application by the state, on the ‘relation of E. J. Mioton, for writs of certiorari and prohibition to Joshua G. Baker, judge section A, criminal district court.

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by William Courtney against A. Rigmaiden and others. From a judgment for defendants, plaintiff appeals.</p>

King, Judge. Action by Paul A. Bacas against Edward Adler to foreclose a mortgage. The property was sold at foreclosure sale, and defendant took out a rule to show cause why a lien claimed by the Rosetta Gravel Company should not be annulled. Prom a judgment for defendants in rule, plaintiff in rule appeals.

<p>Appeal from Fifth Judicial District Court, Parish of Winn; Marion Franklin Machen, Judge.</p> <p>Action by Peter Warner against B. H. Talbot and others. Judgment for plaintiff for $500, and he appeals.</p>

<p>SALE — QUALITY 03? GOODS — WARRANTY — EVIDENCE.</p> <p>1. Where a contract for the delivery of oil stipulates that the quality of the oil is guarantied at destination, and a controversy arises as to the quality of the oil delivered, it appearing that it was possible for the oil to have deteriorated from having been put in unclean tanks, or from other causes, the vendor has no right to ask that samples of the oil taken before shipment be considered in settling the controversy.</p> <p>(Syllabus by the Court.)</p>

<p>CONTRACT — CONSTRUCTION—EVIDENCE.</p> <p>1. Plaintiffs entered into an agreement by which they were to furnish the material and do the printing for a periodical, and look exclusively to the earnings of the periodical for payment, and in no event to hold the publisher individually liable for the expenses of the publication. After the publication had been going on for some time, and the expenses over and above the earnings had reached a considerable sum, plaintiffs refused to go on any further unless paid cash for the future issues of the paper. The publisher, who was without means to satisfy the demand, transferred the printing of the periodical to other parties, and plaintiffs brought the present suit to hold him personally liable for the debt of the paper. Held, the contract of the parties is the law of the ease, and plaintiffs cannot recover.</p> <p>(Syllabus by the Court.)</p>

<p>MURDER — SELF-DEFENSE — INSTRUCTIONS — INTENT — VERDICT.</p> <p>1. To maintain a plea of self-defense, there must be an actual physical attack or hostile demonstration of such a nature as to afford reasonable ground to believe that the design is to destroy life or inflict great bodily harm. State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599.</p> <p>2. Mere belief of the accused is not sufficient, nor is an anticipated attack.</p> <p>3. The judge should decline to charge the law of self-defense when there is no evidence tending to sustain such a plea. Ib.</p> <p>4. An actual intent to take life is not a necessary ingredient in murder or manslaughter. 2 Bishop, Crim. Law, §§ 676, 679.</p> <p>5. Where the accused was indicted for murder and convicted of manslaughter, and the verdict and sentence was set aside on his appeal, and the case remanded, whereupon the accused was tried for manslaughter and found “guilty as charged,” held, that the verdict was responsive to the charge of manslaughter, and not to the charge of murder. State v. West, 13 South. 173, 45 La. Ann. 928.</p> <p>(Syllabus by the Ooui't.)</p>

<p>CRIMINAL LAW — ALLOTMENT OE CASES — EVIDENCE AT PRELIMINARY HEARING.</p> <p>1. Cases may be allotted in the criminal district court of the parish of Orleans previous to the finding of an indictment. The inception of a case, in the constitutional sense, is its inception in the ordinary sense, and means the first step necessary to be taken in order that subsequent proceedings may follow, and that is the filing of the papers of the case in the condition in which they happen to be when transmitted to the court, provided they are then sufficient to seise the court of the subject-matter.</p> <p>2. The settled jurisprudence of this state is to the effect that testimony taken at the preliminary examination is admissible on the trial if the accused was afforded an opportunity for cross-examination and the witness is permanently absent from the state.</p> <p>3. The permanency of the absence of a witness is sufficiently established if it is shown that the witness has gone to another state to reside, and that there is no present prospect of his return.</p> <p>.(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Action by Louisia Jackson against Henry J. Burns. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>In the matter of the succession of Margaret Le Sage. From an order homologating, the executor’s account, Ernest Pollock appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by Mary O. Flynn, wife of Joseph H. Dreyfus, against Joseph H. Dreyfus. From the judgment, both parties appeal.</p>

<p>APPEAL — REVIEW—QUESTIONS OP PACT.</p> <p>1. On questions of fact involving the credibility of witnesses, the verdict of the jury will not be disturbed unless manifestly erroneous.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.</p> <p>Application by the state, on the relation of Edgar P. Fears, for a writ of mandamus to the New Orleans Maritime & Merchants’ Exchange, Limited. From an order denying a writ, relator appeals.</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Hubert Raymond against Jeanne Carrano, his wife. Judgment for plaintiff, and defendant appeals.</p>

<p>CRIMINAL LAW — CONFESSIONS—RULINGS ON EVIDENCE — REVIEW.</p> <p>1. The fact that the accused was in close confinement at the time did not per se render his statements inadmissible, if otherwise free and voluntary.</p> <p>2. Without a statement of the facts and circumstances of the case, it is impossible for this court to determine whether the ruling of the . trial judge was or was not erroneous.</p> <p>3. Where a bill of exception shows only that a certain question was propounded to a witness,. and was objected to for certain reasons, and the objections were overruled by the court, there is nothing on which to predicate a reversal of the ruling as prejudicial to the accused.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Edna R. Wieman and others against R. J. Mainegra and others. From the judgment Joseph D. Taylor, defendant, appeals.</p>

<p>LIFE INSURANCE — POLICY — EVIDENCE — DEFAULT ON PREMIUMS — NOTICE—FORFEITURE — -PLACE OF CONTRACT.</p> <p>1. Where a policy of insurance appears as one large sheet of paper, embracing four pages, on one page of which is the main contract, on another are certain printed conditions and ■agreements, on another a copy of the application for the policy and certain acknowledgments and agreements of the applicant, and on the fourth the usual endorsement indicating that the folded paper contains a policy on the life of the assured (naming Mm), etc. — the main contract referring in terms to the conditions and agreements and to the application — the entire sheet of four pages and the contents of same will be considered the policy.</p> <p>2. And when the plaintiff offers the policy in evidence without reservation, producing the sheet and having the same marked “filed in evidence,” everything on the four pages will be considered embraced in the offering.</p> <p>3. The defense of forfeiture of the policy of life insurance sued on, because of non-payment of the four annual premiums preceding the death of the assured, is sustained under the facts and circumstances presented.</p> <p>On Rehearing.</p> <p>4. The statute of New York providing that no life insurance company doing business in that state shall declare forfeited or lapsed any policy for non-payment of premiums, except after the special notices provided therein, is not applicable to business transacted in another state.</p> <p>5. Where a citizen of the state of Louisiana made application through a local agent for a policy of life insurance to be issued by a New York Company, the application stating that the policy should not be binding until the premium should be paid to the company or its duly authorized agent, and a policy was executed in New York pursuant to the application, and forwarded to the local agent in New Orleans, who collected the premium, countersigned the receipt, and delivered the policy to the assured, held, that the contract was perfected in the state of Louisiana, and was governed by the laws of that state, and not by the laws of the state of New York. Mutual Life Ins. Co. v. Cohen, 21 Sup. Ct. 106, 179 U. S. 262, 45 L. Ed. 181; Equitable Life Assur. Soc. v. Clements, 11 Sup. Ct. 822, 140 U. S. 226, 35 L. Ed. 497; May on Insurance, § 66.</p> <p>6. Under the express terms of the policy, the neglect to pay four annual premiums rendered the contract null and void.</p> <p>(Syllabus by the Court.)</p>

<p>DIVORCE — SEPARATION—SUMMONS AND NOTICE.</p> <p>1. The summons and notices by which the abandonment of the wife by the husband is required by article 145, Civ. Code, to be made to appeal', cannot be given within shorter periods than the law directs, but it is no obstacle to a legal judgment of separation from bed and board that they should have been made with longer intervals between them than the statute fixes.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; Robert I-Iingle, Judge.</p> <p>Action by the United Railway & Trading Company, Limited, against Frank C. Mevers, sheriff. Judgment for defendant, and plaintiff appeals.</p>

<p>PARTITION — PLEADING—OWNERSIIIP — DEPOSITION — NOTICE—SALE OE SUCCESSION PROPERTY.</p> <p>1. Ownership is the basis of the action of partition, and must be alleged and proved, and the necessity for such allegation and proof is; of itself, a concession of the defendant’s right of denial and counterproof; hence, as in a petitory action, the defendant in a partition suit may inquire into the validity of the proceeding whereby the plaintiff acquired the title upon which he sues.</p> <p>2. Where, under Code Prac. art. 430, the testimony of an infirm witness residing in the parish is to be taken under commission, the adverse party is entitled to notice of the time and place.</p> <p>3. The word “form” is commonly used as the antithesis of “substance,” and Civ. Code, art. 3543, in prescribing against “informalities” in public sales, refers to irregularities and illegalities which do not reach matters that are of the essence of those contracts, or prejudicially affect the substantial rights of parties who may be interested therein.</p> <p>4. The sale, upon the first offering, of the property of a succession for less than one-tenth of its value, according to the last appraisement, is a matter of substance, and not a mere informality.</p> <p>Provosty, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Third Judicial District Court, Parish of Bienville; Ben P. Edwards, Judge.</p> <p>Action by the Louisiana & Northwest Railway Company against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>Reversed.</p>

<p>HOMESTEAD — ABANDONMENT—WAIVER.</p> <p>1. Where plaintiff in injunction occupied with his family three urban lots as a homestead, and built on the corner of one of the lots a small house, which he, in his vocation of preacher, used for religious purposes,\ this fact will not defeat his homestead rights as to the lot on which the structure was erected. The premises were not leased, but the building was used by the owner; the congregation merely contributing voluntary offerings towards payment of cost of the lumber.</p> <p>2. Waivers of homestead rights must be in writing and duly recorded. Const. 1898, art. 246.</p> <p>(Syllabus by the Court.)</p>

<p>TAX SALE — PUBOHASE BY HUSBAND — PRESCRIPTION.</p> <p>1. Where the husband, whilst acting as the agent of his wife, becomes the adjudicatee at tax sale of property belonging in indivisión to her and her coheirs, in a succession of. which she is administratrix, he acquires no title thereto adverse to that of the owners, and the prescription quieting tax titles and titles acquired at public sales has no application.</p> <p>(Syllabus by the Court.)</p>

<p>LANDLORD AND TENANT — SEIZURE EOR RENT.</p> <p>1. Where the lessee, without the consent of the lessor, removes, and continues to remove, from the leased premises, property which, under the law, is pledged for the rent, due and to become due, the question whether the lessor is sufficiently secured by that which is left is one which he has the privilege of determining for himself, and which the lessee has no right to determine for him, and, if the lessor believes that he is not sufficiently secured, he may seize for his rent, whether due or to become due.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Thirteenth Judicial District Court, Parish of Rapides; W. E. Blackman, Judge.</p> <p>Action by Thomas C. Wheadon against Jules P. Turregano. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Twentieth Judicial District Court, Parish of Térrebonne; Louis P. Caillouet, Judge.</p> <p>William Harris was convicted of manslaughter, and appeals.</p>

<p>Appeal from Eighth Judicial District Court, Parish of Catahoula; David Newton Thompson, Judge.</p> <p>Lee Robinson was convicted of manslaughter, and appeals.</p>

<p>COMPROMISE — VALIDITY—EVIDENCE—INJURY TO EMPLOYS — PROXIMATE CAUSE.</p> <p>1. A young negro man employed by a lumber company as a brakeman on a railroad run by the company in connection with its mill lost both his legs as the result of being run over while coupling a locomotive to a train of log cars. While he was yet under the influence of opiates, and hardly knew what he was doing, and in great pain, either just before or just after the amputation of his legs for the second time, he was induced by two white men — one the general manager of the lumber mill and the other the agent of an insurance company holding an employer’s accident policy on the lumber company — -to accept $50 in full of all claims for damages he might have against the lumber company growing out of the accident. Held, under the circumstances, the compromise was not the free and voluntary act of the wounded man, and must be set aside.</p> <p>2. Where a brakeman is run over in consequence of his having- stumbled and fallen while attempting to couple the locomotive to a car by holding up the coupling bar and walking ahead of the engine, instead of using a foot-board attached to the pilot of the engine for him to stand on, the railway company will be responsible for the accident, notwithstanding the negligence of the brakeman, if it is shown that after the brakeman had stumbled and fallen there was yet time to stop the engine and avoid the accident. The negligence of the brakeman, while a contributory cause of the accident, was only a remote cause, the proximate cause being the failure to stop the engine in time. And it is a matter of indifference whether the failure to stop the engine was the result of the defectiveness of the engine or of the incompetency or inattention of the engineer.</p> <p>(Syllabus by the Court.)</p>

<p>TAXATION — DELINQUENT LIST — FILING — EVIDENCE.</p> <p>1. A delinquent list containing the name of the delinquent taxpayer, the amount of the tax, and a description of the property, was duly recorded by the tax collector in the office of the recorder of mortgages. Afterwards another delinquent list containing the name of the taxpayer and the amount of the tax, but not a description of the property, was published by the State Auditor in compliance with section 8, p. 100, Act No. 47 of 1873. Held, that the fact that the auditor thus published the latter list in compliance with section 8, p. 100, Act No. 47 of 1873, does not prove that the former list, or a copy thereof, was filed in his office in compliance with section 68, p. 122, Act No. 42 of 1871, nor that the property in question was adjudicated at tax sale under Act No. 47, p. 98, of 1873. The publication under section 8, p. 100, Act No. 47, of 1873, has for its sole and exclusive purpose the forfeiture of the right of the delinquent taxpayer to bring suit and be a witness in a court of justice. It aims at the taxpayer individually, and not at the property, and is no part of the process of either forfeiting the property under Act No. 42, p. 104, of 1871, or selling it under Act No. 47, p. 98, of 1873.</p> <p>2. To vest the taxpayer’s title in the state under section 68, p. 122, Act No. 42 of 1871, there had to be a filing in the State Auditor’s office of a copy of the same delinquent list which the tax collector had caused to be recorded in the office of the recorder of mortgages ; that is to say, of a delinquent list containing, in addition to the name of the taxpayer and the amount of the tax, a description of the property,</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Paul Leche, Judge.</p> <p>Frank Gouvernale and Pasquale Palermo were convicted of horse stealing, and appeal.</p>

Théard, Judge. Action by the board of commissioners of Jackson Square against the city of New Orleans. Judgment for defendant, and plaintiffs appeal.

Action by Isaac Feiber and others against the Supreme Council American Legion of Honor. Judgment for defendant was reversed by the Court of Appeal, and defendant applies for writ of review.

<p>CRIMINAL LAW — NEW TRIAL — NEWLY DISCOVERED EVIDENCE — MISCONDUCT OF JURY.</p> <p>1. Motions for new trial are in great measure addressed to the discretion of the trial court.</p> <p>2. Application for a new trial on the ground of newly discovered evidence should be corroborated by other persons than the accused, and, when possible, by the testimony of the new witnesses themselves. The defendant should not rely upon his single, uncorroborated statement. Knob-loch, p. 331.</p> <p>3. “Motions for new trial on the ground of newly discovered evidence must be regarded with suspicion and disfavor. In such cases the inducements to false swearing on the part of the party convicted are obvious.” State v. Washington,- 36 La. Ann. 341.</p> <p>4. Motion for new trial will not be granted when that which the defendant swears he expects to prove by witnesses would not be admissible in evidence as it is hearsay.</p> <p>5. An affidavit for new trial on the ground of a juror’s misconduct must identify the juror. It is not enough for the accused to swear, and his witness himself to say under oath, that one of the jurors was inimical, and that he said he would find a verdict of guilty if accepted as a juror. His name should have been given. He must be identified, and in this case it appears that identification was possible.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from First Judicial District Court, Parish of Caddo; Alfred Dillingham Land, Judge.</p> <p>xVction by Thomas Smith against the Vicksburg, Shreveport & Pacific Railway Company. Judgment for defendant, and plaintiff: appeals.</p>

<p>Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge.</p> <p>Action by John Alphonse Bergey and others against Therese Labat and husband. Judgment for plaintiffs, and defendants appeal.</p>

W. Ellis, Judge. Action by Douglas M. Hannay against the New Orleans Cotton Exchange and succession of Robert W. Simpson. Judgment for plaintiff, and defendant succession of Simpson, by the curator ad hoc, appeals.

<p>Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.</p> <p>Action by S. D. Moody & Co., Limited, against Louis Spotorno. Judgment for plaintiff, and defendant appeals.</p>

<p>NAVIGABLE BIVEKS — CONTROL OE BANKS — USE BY BAILROAD.</p> <p>1. The state, being charged with the administration of the banks of the Mississippi river within the limits of the city of New Orleans, and of the public wharves and landings thereon, must necessarily discharge its functions by means of an agent, and until 1896 acted through the city of New Orleans. It then appointed as its agent for the purpose of such administration the board of commissioners of the port of New Orleans, and, in so doing, withdrew from the city all authority that had been granted to it in that behalf, “save,” as this court has decided, “in connection with private wharves,” and, in language at once more specific and more comprehensive, conferred that authority on the agent so appointed. The city has, therefore, no present jurisdiction over the wharves and landings mentioned, as such, and hence has no power, without the consent of said board of commissioners, to authorize the construction and maintenance of a railroad thereon.</p> <p>(Syllabus by the Court.)</p>

<p>INJURY TO EMPLOYÉ — FELLOW SERVANT — DANGEROUS APPLIANCES — APPEAL—INCREASE OP DAMAGES.</p> <p>1. The employe who obeys the order of the manager ’ of his employer, and who does necessary work in defendant’s service, is not to be considered, in a legal sense, as one who was engaged in work beyond the scope of his employment.</p> <p>2. The employé is not the fellow servant of the manager of the master. Moreover, the plea was not specially urged.</p> <p>3. An inexperienced employe should not be sent to do work where there is danger without instruction enabling him to guard against danger.</p> <p>4. Pipes about the mill, subject at time to heavy pressure from escaping steam, should be screwed on the boilers with special attention and care.</p> <p>5. The manager who had given the order did not testify. He was in charge of the plant.</p> <p>6. The answer to the appeal, asking for an increase of the judgment, must be filed three days before argument.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; John St. Paul, Judge.</p> <p>Action by Frederick Lindquist against the Maurepas Land & Lumber Company, Limited, and others. Judgment for defendants, and plaintiff appeals.</p>

<p>APPEAL — REVIEW—RECORD—DATIVE TUTOR-DEATH — ACCOUNTING.</p> <p>1. For the review of a judgment sustaining an exception of no cause of action, all the appellate court need have before it is the petition or motion excepted to as containing no cause of action, the exception, and the judgment; and the transcript need contain no more.</p> <p>On Rehearing.</p> <p>2. During his life the dative tutor owes such accounts as the law requires tutors to render to the court by which he has been appointed, but after his death any balance due by him to his wards becomes a debt of his succession, and must be there recovered, or, if there be a universal legatee in possession, from him; but the legatee owes no account as tutor, and his settlement of the debt due in that capacity by his testator may be made as the settlement of any other debt due to the minors may be made, i. e., with the new tutor, extrajudicially or otherwise.</p> <p>3. Where the universal legatee of a deceased dative tutor, proceeding contradictorily with the incumbent of the tutorship, alleges that his testator has settled with respect to his gestión with his immediate successor, and prays the cancellation of the mortgage recorded in favor of the minor, a cause of action is disclosed, and, if his allegations be sustained by proof, he is entitled to judgment. The account between a former tutor, or his succession, and the new tutor, is not to be held open until the minor, perhaps of tender years, arrives at the age of majority.</p> <p>(Syllabus by the Court.)</p>

<p>NEGLIGENCE — COLLISION IN STREET — INJURY TO PEDESTRIAN.</p> <p>1. The issues between plaintiff and defendant are mainly of facts.</p> <p>Plaintiff was walking from one side of the street to the other, at or near the intersection of Frenchman and Boyal streets.</p> <p>Plaintiff collided with the head of the mule pulling the wagon, or with the wheel on the side of the wagon.</p> <p>There is testimony to sustain each theory.</p> <p>Defendant’s driver did not see plaintiff, who thus stepped in front of the mule or against the side of the wagon, and plaintiff does not know exactly how the accident occurred.</p> <p>Plaintiff says he looked up and did not see the wagon. While a plaintiff cannot be held to the exercise of unusual prudence, and he is not bound to “stop, look, and listen” for a street car in crossing at a street, when, none the less, he testifies that he did “stop, look, and listen,” and it is manifest that he did not “stop, look, and listen,” the witness, under the rule of evidence, weakens the weight of his other testimony.</p> <p>The plaintiff in his own behalf is the only witness who testifies directly in support of the allegation of his petition.</p> <p>One of the plaintiff’s two witnesses testified that the driver was looking- to the front all the time.</p> <p>“Q. Could any driver have avoided an accident of this kind in the way this man walked into this mule; could any have avoided it?” In answer to this the witness said: “Well, I</p> <p>don’t know; he couldn’t tell whether he was going to get on the track or not.”</p> <p>The other witness for plaintiff corroborates the foregoing, except that he testifies that plaintiff came in collision with the wheel first on the side of the wagon.</p> <p>This is the testimony for plaintiff. Two witnesses for defendant, who saw the accident, corroborate the statement that plaintiff came in collision with the side of the wagon.</p> <p>The driver for defendant testified that after the accident he slackened his gait, and, immediately after, continued on, because one of defendant’s employés, who happened to be near, told him to go on, that the plaintiff “was not badly hurt,” and that he would take charge of him.</p> <p>The boy who was with the driver in the wagon corroborates this driver.</p> <p>The driver testified that he did not report the accident, because he did not think it would amount to anything; he did not think that plaintiff was hurt much, and he was in the care of an employs of defendant.</p> <p>Defendant testified that he never had any complaint against this driver; that he had no reason to find fault with him, as he was always careful.</p> <p>The judge of the district court saw the witnesses while testifying. He saw their manner of testifying. He arrived at the conclusion that plaintiff had not made out a case.</p> <p>The onus was with plaintiff.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; George H. ThSard, Judge.</p> <p>Action by Mary O. Gibert against Domenico Randazzo, her husband. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Third. Judicial District Court, Parish of Bienville; Ben P. Edwards, Judge.</p> <p>Action by the Shreveport Cotton Oil Company against O. O. Friedlander and others. Judgment for defendants, and plaintiff appeals.</p>

<p>QUIETING TITLE — EVIDENCE—POSSESSION.</p> <p>1. A deficient muniment of title to real estate cannot be supplemented by the recordation of the affidavit of the claimant. Such affidavit is the mere verbal statement of the claimant, which amounts to nothing at all as a muniment of title to real estate.</p> <p>2. In Louisiana, whatever may be the rule elsewhere, a plaintiff, by bringing a suit to remove a cloud on his title, does not ipso facto admit that the muniments of title casting the cloud of which he complains are sufficient on their face to show title. lie cannot be held to be admitting the very opposite of what he alleges and is trying to show.</p> <p>3. A suit to remove a cloud on title is in the nature of a suit in slander of title, and cannot be sustained without proof of possession.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.</p> <p>Action by the succession of D. W. Williams against Louis E. Chaplain. Judgment for plaintiff, and defendant appeals.</p>

<p>TAXATION — ASSESSMENT—SALE—NOTICE — UNKNOWN OWNEES.</p> <p>1. Under the provisions of Act No. 170, p. 346, of 1898, several tracts of land, aggregating over 900 acres, were in 1899 assessed on a</p> <p>■supplemental roll to the “Heirs of Josh Fennimore,” and were in 1900 sold at tax sale to the defendant for the price of $17.45.</p> <p>The evidence disclosed that no notice of the assessment and of the delinquency was given to the heirs by mail, as required by the said act, and it was not proved that notice was given by publication, as in the case of ‘.‘unknown owners” and of “nonresidents whose post-office address is unknown.”</p> <p>Held that, as the property was not assessed to “unknown owners,” the heirs were entitled to notice by mail of the assessment and sale, and, if their address was unknown, and notice by publication was given, it devolved on the defendant to allege and prove the exception to the general rule.</p> <p>2. A tax debtor cannot be proceeded against at the same time as a known and as an unknown owner. See Succession of Williams v. Chaplain, ante, 1075, 36 South. 859.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from Fifteenth Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge.</p> <p>Action by Joseph Marx against the Louisiana Western Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>NULLITY OF JUDGMENT — ACTION—WHEN LIES— LAGIIES — APPEAL—IN JUNCTIO N.</p> <p>1. Where the cause for which a judgment from which an appeal has been taken may be annulled is not apparent upon the face of the record, the court by which such judgment was rendered- is the only one in which the nullity can be demanded.</p> <p>2. The remedy by action for nullity of judgment, as provided by Code Prac. art. 607, is independent of the remedy by appeal, but is not intended as a substitute therefor, or as a means of affording another day in court to a litigant who has. neglected his opportunity. Its purpose is to furnish relief against fraud which has operated in the obtention of a judgment, which makes no appearance in the record, and for which an appeal would afford no remedy.</p> <p>3. The case taken up by an appeal is the case heard and decided in the court of first instance, and which is contained in the record, whilst the case presented, within the meaning of Code Prac. art. 607, in an action for the nullity of the judgment appealed from, is one which has not been heard or decided, and which is dehors the record lodged in the appellate court; hence the action of nullity and the appeal may be maintained at the same time without conflict.</p> <p>4. If the conditions precedent imposed by law for the taking of an appeal, whether suspensive or devolutive, are not complied with no jurisdiction is vested in the appellate court, and it can do nothing with the case save dismiss the appeal (unless it be, possibly, in the exercise of a supervisory jurisdiction); and it cannot be said that a judgment from which no appeal has, in • contemplation of law, been taken, is the judgment of the appellate court.</p> <p>5. Where an' action for nullity of judgment properly lies, an injunction may issue to restrain the execution of the judgment attacked notwithstanding that a suspensive appeal therefrom has been dismissed and a devolutive appeal has been' subsequently taken and perfected and is still pending.</p> <p>(Syllabus by the Court.)</p>