Volume 2 — Teissier's Louisiana Reports

<p>Appeal from Civil District Coart, Division “E/J</p>

<p>1. All parties to the suit who are not appellants are appellees, and ali are concluded by the judgment rendered on appeal. A second appeal eatlftot be allowed.</p>

<p>Questions of fact Only are involved in this cause.</p> <p>Appeal from Civil District Court, Division “Ed*</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>'Issues of fact only are involved herein.</p> <p>Appeal from Civil District Court, Division "C.”</p>

<p>Questions of fact only are involved herein.</p> <p>Appeal from Civil District Court, Division “A.”</p>

The issues of act herein depend for their solution, not on the credibility of witnesses, but on an appreciation of their testimony. Appeal from Civil District Court, Division “E.”

<p>Appeal from Civil District Court, Division “B.”</p>

” It is settled jurisprudence that attorney’s fees are not recoverable when no exclusive or distinct services are rendered in dissolving a writ of injunction, and where 't'he dissolution of the writ is practically the result of a trial on the merits of the cause.

<p>Appeal from. Civil District Court, Divisions “E” and “B.”</p>

<p>Appeal, from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. The disregard of the terms of any injunction staying■ execution and admitted by plaintiff in injunction to have 'been obtained through fraud on the Court cannot be viewed as an additional ground in another suit for damages justifying one of the grounds thereof.</p> <p>2 Although terminating a law suit (and in this case one for damages) a compromise entered into between the litigants without consulting their attorneys and to their detriment has been condemned by the Supreme Court; yet, such a compromise has never been set aside, unless shown to have been through collusion or undue influence.</p> <p>3- An attorney disregarding such a compromise and suing for damages including solely his alleged attorney’s fees has no lien and privilege on the cause of action, but only in the Judgment obtained and not obtainable in the face of the compromise of which he was aware, not shown due to collusion or undue influence and which settled the differences of the parties.</p> <p>4. For fees due for past and actual services the attorney’s recourse was against those who had retained his services, 36 So. Rep. No. 17, page 826; 35 A. 337; 24 A. 571.</p>

<p>Appeal from Civil District Court,' Division “C.”</p>

” The actual value of the property taken away is the measure of compensation when, through ignorance, one commits a trespass on another’s property.

<p>1. Where, in a suit for the settlement of a partnership, the appointment of a receiver or liquidator 'becomes necessary to effect the object of the suit, the Court may appoint one. The power to do so •not only belongs to the class of incidental powers which Courts 'have full authority to exercise, but is especially conferred on the District Courts of this State by the Constitution.</p> <p>2. The appointment rests in the sound discretion of the Court to be exercised or not as the circumstances of each case seem to demand, taking into 'consideration the preservation of the property and its proceeds, and the protection of the rights of all parties as their interest may appear in the final adjudication.</p> <p>3. Art. 1135 C. C. does not confer the exclusive right oil the Succession representative» of a deceased partner to initiate the action for a partition, so called, of the partnership affairs. The surviving partner may sue the Succession representative for "partition” or liquidation. 4 In either event the action must be brought in a Court of ordinary jurisdiction.</p> <p>5. In a proper case a liquidator may be appointed for a partnership whether the partnership be "subsisting and existing,” or has been dissolved by limitation, or 'by mutual consent, or by the death 'of one of the partners, if the partnership agreement is silent as to the method of closing up the business and the members of the firm cannot agree in reference thereto.</p>

<p>1. Where the Clerk’s certificate declares that the transcript contains rii the evidence adduced upon the trial, and yet no testimony or evidence is found in the record to support the Judgment, the same must be reversed and' one of non-suit entered, or else the cause be remanded.</p> <p>2. Such certificate protects the appellant not shown to be in default, even though there be no evidence in the record, and obviates necessity on his part to have asked for a statement of facts.</p> <p>3. If the Clerk’s certificate was incorrect, the appellees might have protected themselves by taking steps for its correction.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

” ON Motion to Dismiss. Where the motion and order of appeal is from the .“Judgment rendered,” an averment in the motion for appeal that the error consists of the ‘fact that the costs have been improperly adjudged against the litigant moving the appeal, cannot be construed as intending an appeal solely from so much of the judgment as concerns the costs and therefore unappealable separately from the other matters concerned by the judgment.

<p>1. If is generaliy held that a railroad company is not bound to provide the best or mios-t approved appliances, but may use such as are reasonably lit for the purpose or that may be in general use on -well msnaged railroads.</p> <p>2. A charge by the Court, that the case depends upon matter of law and not upon matter of fact strips the • conclusions of fact of the jury of their value.</p>

<p>Appeal from Civil District Cout, Division “C.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>1. Where plaintiff tenders a title which he acquired, one-half from a surviving spouse in community and the other half toy subsequent proper judicial proceedings from the minor heirs of the deceased spouse in community, and it is neither alleged or shown that there are any community debts of said spouses the title, still he held good and valid.</p> <p>2. Hiere is nothing’ in the jurisprudence of this State which prevents the surviving spouse from disposing of his interest in the community subject to the debts and charges of the community.</p> <p>3. It was mot the duty of the purchaser of the minor’s interest' to follow’ or account for the former price given by him for the interest of the minors in this property.</p> <p>4. Nothing in the record shows that this was a promise to sell .with the giving of “earnest money.’’</p>

<p>1. Vv'!here a third person acquires in good faith and for value a negotiable instrument after it -has matured according to its original tenor, but before the maturity fixed by an undated indorsement on the note extending its payment to a later period, he takes same free of ali the equities -with which it was encumbered in the hands of ■the partv from whom he received it.</p> <p>2. Where the indorsement in such case bears no date, it will he presumed in favor of such innocent third holder, that it was made ■before the maturity.</p>

<p>Appeal from Civil District Court, Division "E”.</p>

<p>T. The fact that 3 suit may be neccessary to enforce a claim does not make it a litigious right.</p> <p>2.' Where it is not manifest that the appeal was taken for delay, and v.'here it appears that appellant may have daily admitted the cor-redness of the judgment appealed form, damages will not be allowed.</p>

<p>Appeal from Civil District Court, Division “-C.”</p>

” Where the record discloses, no information as to the identity between the person named in the body of the appeal bond as surety and the person signing the bond as. such, tlhe appeal will be dismissed

<p>Appeal from Civil ¡District Court, Division “D.”</p> <p>Issues of fact only are involved ihereln.</p>

<p>l. In proceedings in rein the real owner of the thing proceeded against, t>r al least the 'apparent owner under a recorded title in his name, must 'be made the defendant in the action.</p> <p>0 he title to all property of every kind and nature, real or personal, purchased or in any manner acquired by the , Sewerage & Water Board, is vested in the City ■ of New Orleans; hence in actions affecting or concerning such property, the city is a necessary party thereto.</p>

<p>Appeal from Civil District Court, Divison “B.55</p>

” The judge of the lower Court did not see and hear the witnesses, and the issues of fact involved herein are decided by this Gourt not upon the credibility of the witnesses, but upon our appreciation of the testimony. /

.Appeal from Civil District .Court, Division “B.” On Motion to Dismiss. Appellate jurisdiction is to be teste-d by the value -of wh-at is 'claimed in the petition, and whatever may be the amount of the judgment given, either party lias the right to appeal.

<p>1. The wife must show dehors the act of purchase, that the property claimed by her and acquired during the community was purchased ■with her separate funds.</p> <p>2. Costs are not left to the discretion of the Court; the statute imperatively declares 'that they are due to the party in whose favor the judgment is rendered</p>

<p>Appeal from -Civil District Court, Division “A.”</p>

” Plaintiff, as the original holder of certain -promissory notes, sued the maker -thereof. For a defence, the defendant urged want -of -consideration. Held : T.he defence -was made good.

” Our appreciation of the evidence as a whole leads to the conclusion, that the parties’ minds united on a contract which the plaintiff violated without good cause.

<p>Appeal from 'Civil District Court, Division “DA</p> <p>The erroneous fixation of the respective interest of parties in property concerned in a partition proceeding is herein corrected by consent of all parties.</p>

<p>Appeal from Civil District Court, Division “EV</p>

<p>Appeal from Civil District Court, Division “E.”</p> <p>This suit is kindred to Crescent City Manufacturing Co. vs. Louis Revera, et al., No. 3452, decided this day. The doctrine therein announced is affirmed.</p>

When a building contract, in every way legal, and recorded, as the law requires, provides for the construction of a 'building on a street and on lots named therein, and, without the consent and acquiescene of the surety, a building is erected on another and different street and lots, the surety will be relieved of liability.

” When there is no evidence in tile record to show 'want of notice or any other defect, the presumptive validity of the tax-title remains unre-butled.

<p>1. The decision in Cox vs. Ahlefeldt, in 105 La. 545, does not overrule the jurisprudence •which applied the rule contra non valentem ugera non curat prescnptio in cases where there was a legal impediment— un empechement de droit — to the enforcement of 'the claim against which prescription was pleaded.</p> <p>2. Considering that, since the adoption of the Constitution of 1873 seizure and sale of property are the legal substitutes for a suit to enforce taxes, and that the municipality could not seize and sell property adjudicated to the State any more than it could have sued the sovereign, prescription of the tax privileges must, under the foregoing rule be held suspended during the period of the State’s ownership.</p> <p>3. The decision in Perkins vs. Recorder, in La. 236, cannot logically be regarded as destroying anterior imprescriptible taxes and tax privilege, when it affirms previous cases absolutely declaring that Art. 186</p> <p>Coast, of 1898, operates prospectively only and does not affect such anterior imprescriptible taxes and tax privileges.</p>

<p>Appeal from Civil District Court, Division “D.”</p> <p>On Motion to Dismiss Appeal.</p>

<p>Appeal from Civil District Court, Division “D.”</p> <p>The issues herein are identical with those presented in the case of Aztec Land Co., Ltd., vs. City of New Orleans.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division "“A.”</p>

” Where property is purchased with the stipulation that delivery of the things sold is to be made within a fixed period of time, a tender thereof, after the expiration of the term fixed, imposes no legal obligation on the part of the purchaser to accept delivery of the thing thus tendered.

<p>Appeal from Civil District Court, Division “DR</p>

<p>Appeal from 'Civil District Court, Division “E.”</p> <p>Issue of fact only is involved in this cause.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

” The proof in the record to sustain the Judgment by default herein is meagre and unsatisfactory, and is not such as the plaintiff should make to establish his claim in a case involving the amount to be recovered for a loss under a policy of fire insurance.

<p>Í. Act 180 of 1894, holding the owner personally liable if he fail to obtain security frota the contractor is flot applicable to Contracts for less than $1000,</p> <p>2. These who Contract with the undertaker take Under and nót beyOnd the contract, and have neither á right of action against the owner who has paid him according to law and the terms of the contract, nor a privilege on the building.</p>

<p>1. Under Art. 1934, par. 1, of our Civil Code damages excontracta are, as a general rule, limited to those that may reasonably be supposed to have entered into the contemplation of the parties at the time of entering into the contract.</p> <p>2. The exception to the above general rule contained in the third paragraph of above Article cannot be construed as applying to a telegraphic message by the plaintiff to a third party to pay five dollars for plaintiff’s account, and, remote, speculative and problematical damages, averred to have been sustained by failure to promptly deliver such message, cannot be recovered.</p>

<p>Appeal from Civil District Court, Division “CA</p> <p>On second examination of the record we are ’Confirmed in the correctness of our former decree. Former decree remains undisturbed.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

Where tax title less than three years old results from a sale under an assessment in the name of a certain party, but the advertisement of sale was in the name of “unknown,” an adjudicatee of the tax pur'chaser cannot be compelled to accept such title, as his fear of possible 'future litigation is well grounded.

& Co., Ltd., a corporation organized under charter of date March 1st, 18995 fíELD: That so far as the record shows, the two are distinct corporations, and the cause is remanded to allow the plaintiff'to prove, if it can by competent evidence, that it has such interest as entitles it to' a right of action against the guarantor.

<p>1. Act ios of 1898 applies to surety companies, and its declaration, that no foreign company shall do business in this State until it shall first have appointed the Secretary of State as its attorney upon whom ser-' vice of process may be served, is mandatory and not permissive.</p> <p>-2. There is no issue as to whether such mode of service is exclusive, the appointment of the Secretaiy of State vacated the appointment of the previous attorney under the requirements of Act 41 of 1894, and no •additional appointment of agent to accept service has been made.</p> <p>.3. Service of process upon the orginal attorney, now fundus officio, is void.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

” [f, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

<p>1. A jury of freeholders authorized by our law to act in expropriation proceedings have to some extent the character and authority of experts supposed to have some personal knowledge of the matters submitted to them, and are authorized to rely on their own opinions as well as on the testimony adduced before them; their verdicts, therefore, are entitled to great respect, and will not be interfered with except in case of gross or manifest error.</p>

<p>Appeal from Civil District Court, Division “C.”</p> <p>The issue involved in this cause is the same as that in City oí New Orleans vs. Joseph A. Landry this day decided by us.</p>

<p>1. The measure of the reward of professional service is the exertion of legal knowledge, the responsibility incurred and labor bestowed.</p> <p>2. A Court, in determining the amount of a fee. must be guided by a conscientious estimate of their value, and responsibility cannot be shifted from the bench to the bar, by accepting as conclusive the opinions of lawyers as to the value of the services rendered.</p>

<p>1. While it is true that authentic acts cannot be varied between the parties except by a counter letter or by inerrogatories on facts and articles, it is equally true that the rule of inadmissibility of parol evidence against or beyond the contents of an act only extends to the parties thereto.</p> <p>2. Though the note be negotiable, the mortgage or vendor’s privilege securing it is not, and it is competent for a third person in interest to attack the transaction, and to show that the real nature of the contract is a mortgage in the form of a sale.</p>

<p>Appeal from Civil District Court, Division “D.”</p> <p>Issue of fact only is involved herein.</p>

<p>t. The putting in default is a prerequisite to the recovery of damages and of profits and fruits or to the rescission of the contract for its passive violation.</p> <p>2. This putting in default being, under our law, an indispensable prerequisite to sustain an action of this kind, it is not necessary to plead the want of it specially, it can be taken advantage of at any time; nor is it waived by the defense set up in the answer.</p> <p>1. A party suing to rescind a Contract for, its passive violation must, as a condition precedent, allege and prove a putting in default.</p> <p>12. The want of default n'eed not be pleaded in defence, is not waived by an answer setting up other matters and can be taken advantage of at any time by the defendant.</p> <p>3. Such is the general trend of our jurisprudence, which enforces the textual provisions of the Civil Code while the two cases cited as holding a contrary view absolutely ignore such provisions.</p> <p>4. I consider it our duty to give no weight to those two case's, and to adhere to earlier jurisprudence, never distinctly Overruled, but apparently merely overlooked,</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “C,”</p> <p>The exemptions in favor of minors in matters of prescription contained in the Civil Code cannot affect a constitutional provision protecting tax titles from attack after three years from the recordation of the 'tax Or from the date when the tax purchaser went into actual possession.</p>

<p>1. The remanding of cause for a 'particular purpose or for all purposes and the conditions annexed to such action rest within the sound discretion of the appellate Court.</p> <p>a. Although the more, frequent course has been to reverse and remand cases have arisen when remanding has been 'had without reversal, and when the appeal has been kept in abeyance.^</p>

” The beneficiary in this case who 'has paid all the premiums is entitled to . the full amount of the policies to the exclusion of the collateral heirs, and her right is not restricted to the one-tenth allowed by the Code to a concubine. Previous decree remains undisturbed,

Á consent for judgment may he either written or Verbal, and, if written, the instrument should form part of the record and the judgment should re'cite that the consent was so made; i'f verbal, it should he made “in open Court,” and the omission so to state in the judgment strikes it with nullity.

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from 'Civil District Court, Division “C”</p> <p>Issues of fact only are involved herein.</p>

Tlie assessment of merchandise or stock in trade is to be made on the basis of the value of such property as may be “on hand at the date of listing.” This is the specific declaration of Sec. 7 of Act No. 170 of r8gS.

<p>Appeal from Civil District Court. Division “B.”</p> <p>The issues in this case are similar to those in Swift & Co., Ltd., vs. Board of Assessors just decided.</p>

<p>1. An adjudicatee who absolutely declines to take the property cannot afterwards urge want of formal tender; his refusal was a waiver and the vendor was under no legal -obligation to do a vain thing</p> <p>2. Grounds urged in argument but not in the pleadings will not -be considered, defendant should have specially asserted all the defects upon which he relied to justify his refusal of title</p>

<p>1. Where it is not established that the debtor has been judicially notified of the title or claim which is the foundation of the demand for the whole of the property or debt, so as to acquire a sufficient knowledge of the rights sought to be enforced against him, no legal interruption of prescription results in favor of him to whom suoh rights belong.</p> <p>2. So where in a rule to subject to a lessor’s lien funds arising from the sale of property adjudicated at a Sheriff’s offering under a writ of fieri facias, issued in the suit of a person other than the lessor, no judgment is prayed for by the lessor against the lessee for the rent alleged ío be due, and no Copy of t'lie fule is sefVed upon file latter, the only service made being that of the decretal portion of the rule no legal interruption of prescription of the claim for rent results.</p> <p>1. A lessor’s privilege is a privilege of with the right of retention of the property pledged, and, when the creditor is in possession, prescription is suspended.</p> <p>2 It is the possession which suspends the prescription, and this without íegard as to whether the pledge is statutory or conventional.</p> <p>3. The written agreement on file, which is the law of the case as between the subscribers thereto, brings this strictly within the scope.</p>

<p>1. The respondent, a quasi-piiblic corporation, holding a franchise giving il the exclusive right to vend gas, and compelling it to furnish the same to all parties contracting for it, has the right to protect itself by reasonable stipulations in its Contract, hut it must at the same time, have clue regard for the rights and conveniente of tile consumer.</p> <p>2. The company has no right to refuse a new meter because its employees decide ex parte that the old meter which they removed had been injured through the consumer’s fault, and the latter denies the charge.</p> <p>5. The question of damage vel non, and its extent, is 'one which neither can decide alone and which must be solved by a proper investigation, judicial or non-judicial, as the parties may elect.</p> <p>■4. To insist upon '¡pre-payment of alleged damage, as a condition precedent "to continuing a 'consumer’s gas 'supply, is unjust, arbitrary and oppressive, and 'such a contention will not be tolerated by Courts off justice.</p> <p>S- The charter of the company does not clothe-it with judicial authority to decide its own claims in its own favor and audi alteram partem is of the essence of fair dealing.</p>

<p>Appeal from Civil District Court, Division “DA</p>

<p>1. When all the heirs of a succession are Minors, their tutor, may, virtute officii, administer the Succession to which they are called and may sue on proceedings for the sale of property to pay debts.</p> <p>2. Whilst our laws have provided no mode to compel a regular settlement of a community, dissolved by the death of the wife, it does not follow that, in the absence of opposition 011 the part of the surviving partner of the creditors of the community, liquidation and settlement of the community may not be made in the wife’s succession as well as in the husband’s.</p> <p>3- Where the advice and consent of a family meeting is necessary to the validity of a sale, an adjudication made prior to such action is not 'binding upon the adjudicatee; but if after, subsequent ratification by the family meeting and approval of the judge, the adjudicatee consummates the purchase, his title thus acquired is as valid as if the recommendation of the family meeting and order of Court approving the deliberations, had preceded the adjudication.</p> <p>4. As the rights of community creditors on community property are paramount to the rights of ownership which the surviving spouse 'had in the property at the dissolution of the community, so’ also are the rights of such creditors superior to the legal mortgage which the minor heir of his deceased parent has on the portion of the community property coming to the surviving parent; hence it is that an order of Court directing the cancellation of such mortgage, so far as it affects community property which has been sold to pay community debts, does no more than what would result, by operation of law, if no such formal order had been made.</p>

<p>Appeal from Civil District Court, Division “CP</p>

<p>Appeal from Civil District Court, Division “ET</p>

“E” and- “A.” A. stipulation in the contract between the principal and the surety on the official bond of the former, to the effect that the principal On the official bond “shall pay to his surety all loss, costs, charges, suits, damages, counsel fees and expenses of 'whatever kind or nature, which the surety shall or may for any cause and at any time sustain, or incur or be put to; for or by reason of or in Consequence of having entered into and executed the bond as…

<p>Appeal from Civil District Court, Division “D.”</p>

<p>1. The fond on the building contract herein. binds the surety to the? owner for the faithful performance of the Contract by the builder, and one of the requirements of the Contract is that the builder binds 'himself al his own expense for all labor, material and other charges.</p> <p>2. In Hughes Vs. .Smith, recently decided, the Supreme Court held that’ a bond similarly Conditioned was not such a bond as is required by Act rSo of 1894 to secure the payment of 'workmen, laborers and mechanics and the furnishers óí supplies.</p> <p>3. It follows that the owner is personally liable to the furnisher of materials used in the building.</p>

Challes. Plaintiff alleging that defendant is indebted 'to him ío'r 'services rendered by virtue of a contract, or, in the alternative, upon a quantum meriut, and who has been required to elect and has elected to proceed On the latter cause of action alone, Cannot be defeated by an exception of no -cause of action when he has made the proper averments to recover on a quanhtm meriut

<p>Appeal from Civil District Court, Division '“DC</p>

<p>Appeal from Civil -District -Court, Division “D.”</p>

<p>1. Where property is sold and transferred alter the completion of the assessment, notice of delinquency for taxes may be addressed to the vendor, and by serving on the purchaser or present owner a notice so addressed, the tax officers comply wit'h the law requiring notice to be served on the taxpayer.</p> <p>2. The testimony of a public officer in support of the recitals in a proce's verbal made by himself is entitled to great weight and will not be overcome by the mere negative testimony of interested parties.</p> <p>,3. But where the testimony of such officer contradicts the recitals of his proces verbal made at the time, it is to be weighed in the same manner as that of other witnesses.</p>

” An injunction will not lie to restrain executory process for want of authentic evidence, and the proper remedy in such a Case is by appeal from the order of seizure and sale.

<p>X. Where the record of appeal contains 110 note of evidence, statement of. fact, hill of exception or assignment of error, the appellee may either move the dismissal of the appeal or by answering- the appeal pray thf affirmance of the judgment.</p> <p>2. Where- the appeal is frivolous and taken for delay damages will be allowed.</p>

<p>r. Where in a contract for the sale of goods to he shipped to the purchaser by a date stipulated no mention is made of the date of delivery, good faith and fair dealing and the interest of commerce alike unite in requiring that he who stipulates to make the shipment by a certain date should see to it that, at least by no fault of his own, there is no unusual and unnecessary delay in the delivery.</p> <p>2. Where the seller claims to have made the shipment -within the period stipulated and an unusual delay has ensued in the delivery, the onus is on him to show that the delay is not attributable to him.</p>

<p>Appeal from Civil District Court, .Division “K”</p>

<p>1. Plaintiff's mule being injured through the fault of the defendant, the latter took charge of the animal and undertook to cure it. The mule finally recovered from its injuries but subsequently died of pneumonia whilst still in defendant’s custody.</p> <p>Neither its recovery from its injuries not its subsequent illness, nor its death, was ever reported to the plaintiff; nor at no time was the mule ever tendered to the plaintiff. Held, that defendant voluntarily assumed all risks after the mule recovered from its injury, and as he never tendered the animal to the plaintiff after that period, lie is responsible for its value.</p>

<p>Appeal from Civil District Court, Division “C.”</p>

<p>1. Where, in a suit to enforce the cost of paving done under lnunicipat authority, the constitutionality or legality of the ordinance under which the work was done is put at issue, the Supreme Court has exclusive appellate jurisdiction of the cause whatever may be the amount involved.</p> <p>2. Under the provisions of Act No. 56 of IQ.04, appellate Courts have the right, in cases where the appellant shall have appealed to the wron Court to transfer the cause to the proper Court, instead of dismissin the appeal. bf» bo</p>

<p>Appeal from Civil District 'Court, Division “C.”</p>

The 'asserted Owner had acquired by ■purchase from the judgment debtor and she successfully maintained the venty and bona fides of her acquisition.

<p>Appeal from Civil District Court, Division “C”</p>

<p>1. Death or a judicially declared insolvency fixes the rights of creditors. From that -moment no one can seek or obtain any advantage not common to all.</p> <p>2. If, through the individual efforts of a creditor, property of the insol'-' Vent debtor, or succession, is recovered by him, it must be restored to the debtor’s estate so that it may inure to all the creditors.</p> <p>3. Where a domestic creditor of an insolvent succession, or firm under judicial administration in this State, who is enumerated as a creditor on the schedule or inventory of the estate; who participates in the proceedings and shares in the dividends declared, should, by proceedings in another State, cause the Insolvent debtor’s- property in that other State to -be seized and sold to satisfy his debt, and out of the proceeds of the sale he realizes any sum or sums beyond what -would ratably be. due him upon an accounting by the Louisiana representative of the insolvent estate, he will not be permitted to thus obtain a preference over the other domestic creditors and he will be compelled to- restore what he has thus received, t-o the Louisiana administration.</p>

<p>1. Where a navigable stream separates parishes or States, their 'boundary extends to the thread or channel of the stream, and their respective Courts have jurisdiction of offenses and quasi-offenses -occurring 'between the bank on their respective side and said midchannel.</p> <p>2. Defendant, owning a wharf constructed on the bank of the river to which its ferry boats are moored, the first to the wharf and the second to the first, the second as well as the first will be considered as being moored to the wharf.</p> <p>3. In making a landing it is necessary to have more than one deck-hand, and where it is shown that the company employed but one man, .who, besides, was the fireman, it will be considered negligence On the part of the ferry company.</p> <p>4- The fact that plaintiff knew that the stern line was not tied when' lift attempted to leave the boat, is not negligence, when the proof is that the “exit-bar” had 'been removed, and other passengers were disembarking, and that plaintiff knew that it was usual to remove the “exit-bar” before tying the stern line,</p>

<p>I. Act No. 180 of 1894, entitled an act relative to contracts for buildings and the surety of workmen and furnishers of materials does not contain more than one object; nor does that -portion of It which fixes liability On owners w-ho fail to Comply with the provisions -of the Act relative to obtaining a bond and recording same and the Contract -within a certain delay, fall out'side of the title; nor is it -broader than the title; the Act is therefore not repugnant to Art. 29 of t-he Constitiu tion of 1879, which was in force when the Act Was passed.</p> <p>a. Where, if by timely objection to the introduction of evidence, the plaintiff might not be entitled to a judgment, under the specific prayef of his petition, to the extent obtained, nevertheless, if evidence is received -without objection and was manifestly offered and received to support the judgment subsequently based thereon, the evidence will be considered to -have been admitted in response to an amended prayer filed by consent of all parties.</p> <p>43. Whilst estoppel 'may prevail against "a litigant who, in One suit, alleges that a certain person is his debtor and subsequently in another suit against a third person, on the same Ca'use of action, alleges tile latter to be his debtor, there -being no joint or solidary liability of the alleged debtors, the plea to be effective -must be filed in the Court of the first instance or the evidence to establish the claim must be objected to. If n'o't -filed below the plea Cannot be considered on appeal where it is urged for the first time, and in argument only; in any event, however, it is waived and abandoned by the introduction and reception of evidence unobjected to.</p> <p>4. Where in a suit against the owner to hold him personally responsible for the claims of workmen and furnishers of materials notwithstanding he has obtained a bond and recorded it, a sufficient cause of action is disclosed if the petition alleges that the bond obtained by him is n favor of the owner and not in favor of the laborers and material men ; or if the allegations are that the bond and contract were not recorded within the time prescribed by Act 180 of 1894.</p> <p>5. To constitute res-adfadicata there must be identity of parties, capacity ■obiect and cause.</p> <p>6. No order of Court is necessary for the filing of a demand in recon-vention.</p> <p>7. The 'Civil District Court of the Parish of Orleans is without jurisdiction raticne materia in a cause in which the matter in dispute, whether in the main or on the reconventional demand, is less than one 'hundred dollars exclusive of interest.</p> <p>8. If an amendment is not prayed for in the answer to the appeal, none can be made in favor of appellee.</p>

<p>Appeal from Civil District Court, Division “B.”</p>

” In this case involving' issues of fact only and where the testimony is conflicting and the cause cannot he determined without disregarding the testimony of some of the witnesses, the opinion of the judge who seen them, and heard them testify, is entitled to great weight, and if not manifestly erroneous will be adopted.

<p>Appeal from Civil District Court, Division “D.”</p> <p>Issues; of fact only 'are involved herein.</p>

<p>Appeal from Civil District Court, Division “D.”</p>

<p>Appeal from Civil District Court, Division “D.”</p> <p>Issues of fact only are involved herein.</p>

<p>X Issues of fact only are involved 'herein. ’</p> <p>2. Under the circumstances herein, involving charges of fraud, "we give great weight to thé conclusion of fact of the district judge, and sustain his ruling.</p>

<p>Appeal from Civil District Court, Division “D.”</p> <p>Issues of fact only are involved herein.</p>

<p>Appeal from Civil District Court, Division “A.”</p>

<p>Appeal from the Civil District Court, Division “A.”</p>

<p>1. By competent evidence is meant that which the very nature of the thing to be proven requires, as the fit and appropriate proof in the. particular case, such as the .production of a writing where the contents are the subject of inquiry.</p> <p>2. 1 he meaning of the word “relevant” as applied to testimony is that it directly touches upon the issues which the parties have made by their pleadings so as to assist m getting at the truth. It comes from the French relever, which means to assist.</p> <p>3. It is not every fact which may be averred by the parties to a suit that constitute, in the strict legal sense, an issue in the case.</p> <p>4. To be an issue in the case the facts averred must be ‘material and to the contingency of the facts averred and sought to be proven there must be attached the legal consequence asserted by the party affirming them.</p> <p>5. He who has a right of action to claim what is due to him, has a right yet more evident to use the same -cause -of action as an exception in order to preserve his rights.</p> <p>6 A surety may -oppose to the creditor all the exceptions -belonging to the principal debtor and which are inherent to the debt, except those which are personal to the debtor, the exception of usury not being itl the latter class.</p>

A common owner of two adjoining town lots, separated by a’brick wall, erected buildings on both lots and adopted this -wall as the rear Wall of all the 'buildings so erected and generally used and… Held: that B has the right to use this wall as a wall in common because it was made such par destination de pcrc d-e famille.

<p>1. In confirming a default the proof offered hy plaintiff must conform to the allegations of his petition and he must make out his case with legal certainty.</p> <p>2. The evidence of one witness who simply declares that the contract was violated, giving scant, if any explanation of the particular causes or conditions which Constitute its violation, is not sufficient to authorize the confirmation of a default.</p>

<p>Appeal from Civil District Court, Division “E.”</p> <p>Questions of fact only are involved -herein.</p>

<p>Appeal from Civil District 'Court, Division “A”</p>

” This Case involves a question of fact only and concerns the execution of a promissory note by. the ordinary mark of a person who could write And -sign her name. The suit was filed after the death of the alleged maker. The evidence of its execution and consideration is of a character that falls far short of proving the case with legal certainty.

<p>T. A trader has the right to adopt as a trade-name a geographical term, and to use the name as a -brand for a certain class of -goods though he be not the manufacturer of the article.</p> <p>2. “Whcie a geographical term has come to mean in a secondary -sense the goods or business of a particular trader, a subsequent trader must accompany his use of the same term with such distinguishing characteristics as w.ill prevent his goods from being mistaken for those of his rival.”</p> <p>3. The rule is that the prayer of the petition must be read in the light •of the allegations of the petition, and though plaintiff may not be able to get relief to the extent prayed for, he can, under the .prayer fo-r general relief, get such relief as the nature of the case demand.</p>

<p>Appeal from Civil District Court, Division “E.”</p>

<p>Appeal from Civil District Court, Division “A.”</p>