Volume 9 — Teissier's Louisiana Reports

<p>1. Where property has been wrongfully converted, the owner may sue either for the property, or for its value, or in the alternative for the one or the other.</p> <p>2. Any refusal to deliver the property, not founded on the existence of some right or interest therein, is a wrongful conversion thereof, sufficient to warrant an action for the value thereof and damages.</p> <p>3. Upon all issues of fact the finding of the trial Judge is undoubtedly entitled to very great weight, but since the law grants an appeal on the facts as well as the law, an appellate Court is in duty bound' to consider and weigh the evidence for itself and reach its own. conclusion based thereon.</p>

<p>A sale per aversionem” conveys all the land between the apparent o.r visible, boundaries of the estate.</p>

<p>Appeal from the 28th Judicial District Court, Parish of Jefferson. ' ' '</p>

<p>Appeal from the First City Court, Division “B.”</p>

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

<p>Involves only issues of fact.</p>

<p>X,. The holder of a promissory note may sue thereon -though not the owner thereof, .and the maker (who would be discharged by payment to the holder), cannot raise the question of ownership, except for the purpose of setting up any equities which he might have against the true owner.</p> <p>2. One who acquires a promissory note after maturity takes it sub- ' ject to all existing equities in favor of the drawer; but payment' made to one not the holder at the time of such páyment does not discharge the note, and gives rise to no equity in favor óf the drawer.</p>

<p>The term public officer ..in Article 647, Code Of Practice, i.s synonymous with public employment; and all who are engaged in the public service hold public office within the meanmg of said article.</p>

<p>The owner of ari uninclosed lot cannot be made to contribute to the expense of a line fence. His liability arises only when he uses ' the fence and makes it supply a common need as an inclosure.</p>

<p>Questions of fact only are involved.</p>

<p>1. Where parties, after a succession has accrued to them, declare by authentic act or in a judicial proceeding* that they are without interest in a fund donated by their mother to a co-heir or in the property bought with it, and that they renounce in their co-heir’s' 'favor, they will be estopped from subsequently claiming* collation thereof.</p> <p>2. The acquisition by a vendor of a further interest in the property1 after the transfer of all her rights will inure to the benefit of the vendee.</p>

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

<p>An appeal will be dismissed where defendant’s answer confesses judgment for the whole of plaintiff’s claim and presents a demand' in reconvention for an amount below the minimum limit of the appellate jurisdiction of this Court.</p>

<p>i. Act 134 of 1906 refers to conditions existing at the time when the furnishers of materials, sub-contractors, etc., are first allowed an opportunity to judicially test the bond previously taken by the owner ex parte and on his own responsibility.</p> <p>2. The only view consonant with both the letter and the spirit of the^ Statute is that the owner is. liable, unless it be found, on the trial, of the objection in the concursas proceeding, that the surety is financially able to respond to his obligation.</p> <p>3. There is nothing in the nature of the obligation or in the terms of ' the Statute to require a return of milla bona as to the surety as a: condition precedent to the liability of the owner. He is liable-as the surety would have been.</p>

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

<p>The provisions of the Code of Practice requiring the Judge to pronounce on the merits of an intervention at the same time that he decides the principal action, have no application to an opposition having for its object to set aside a seizure as having been effected on property not belonging to defendant but owned by the opponent.</p> <p>On the contrary, the Code of Practice particularly enjoins that such opposition shall be considered as a separate demand distinct front the suit in which the seizure was effected. C. P., 389, 394, 395, 398-</p>

<p>Act 89 of 1886 creates no new privileges on crops but simply fixes the rank of privileges already granted by existing laws.</p>

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

<p>A paving claim, privilege or right of pledge arising under Act 7 of Extra Session of 1870, as amended by Acts Nos. 119 of 1886 and 142 Of 1894, is imprescriptible aild does not lapse for failure to re-inscribe same on the. mortgage records within ten "years.</p> <p>2. When paving work has been executed without protest on the part . of the property owners, Courts will not listen to objections made years afterwards to the validity of the proceedings.</p> <p>3. It is not a violation of Section 119 of Act 45 of 1896 for a paving . contractor, long after his contract is completed and accepted, and without any previous understanding that might have produced f undue influence or discrimination, to remit by" Way of discount" & small portion of the claim.</p>

<p>Questions of fact only are involved.</p>

<p>3. No suspensive appeal lies from- an order dissolving -on bond a writ of injunction -unless irreparable injury will arise by reason of such dissolution; and no injury is deemed irreparable which is compensable in money.</p> <p>S. The exercise by the lower Court of the discretion vested in it in fixing the-amount of the bond upon which an injunction is dissolved will not be disturbed on review where the record does not clearly and affirmatively disclose that the bond is insufficient to protect the parties at interest.</p> <p>3. Judicial bonds are to be construed by the laws under which they are executed, and the bondsman is held not as he has bojind .himself but as the law under which the bond is given requires that •he should be held.</p>

<p>Issues of fact only are involved herein.</p>

<p>Appeal from the First City Court, Division £!C.”</p>

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

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

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

<p>Under the New York Standard Form of Fire Insurance Policy prescribed by Section 22 of Article 3 of Act 105 of 1898, a tender on return of the unearned premium is a condition precedent to the cancellation of the policy at the instance of the insurer.</p>

<p>Appeal from the First City Court, Division “C”</p>

<p>While a married woman may, during the existence of the community, purchase property on credit as an investment for account of her separate paraphernal estate, still, in order to overcome the presumption that the property belongs to the community, she must affirmatively establish by proof' dehors the 'deed itself that the cash portion of the price invested in such a purchase was separate paraphernal property by her separately administered, and not only, that the property purchased is reasonable security for the credit portion of the price, but that the remaining separate paraphernal property under her administration or her separate paraphernal revenues are such as to render it reasonably certain tnat the deferred payments will be met'as they mature.</p>

<p>Questions of fact only are involved.</p>

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

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

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

<p>The Court is of opinion that it has jurisdiction over this appeal. On the merits, only questions of fact are involved.</p>

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

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

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

<p>Appeal from the First City Court, Division “A.”</p>

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

<p>App'eal from the Civil District Court, Division “A.”</p>

<p>Where the violation of a contract is a passive one, an action in damages for such violation must be preceded by a putting in default.</p>

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

<p>Issues of fact only are involved herein.</p>

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

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

<p>'Appeál from tile Civil District Court, Division “A."</p>

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

<p>The proper judgment is one of non-suit, where plaintiff’s failure to-establish its claim is probably due to its misapprehension as to the effect of the pleadings and proof.</p>

<p>Appeal from the Civil District Court.</p>

<p>Under Art. 901, C. P., tbe appellant cannot be permitted to withdraw his appeal without the consent of the appellee and the cause shall take its course.</p>

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

<p>t. An appellate Court will not heed an appeal to its discretionary powers when the effect of granting the relief prayed for would be to suspend indefinitely without affidavit, injunction or bond, the execution of a valid judgment.</p> <p>•2. The published statutes of 'other States shall be received in the Courts of this State as prima■ facie evidence of the statute laws of the States from which they purport to emanate.</p> <p>3- The issues of fact herein are resolved against defendant.</p>

<p>The creditor of a joint obligation is entitled to collect from each one of the co-obligors the full amount of his share of the obligation, and a payment made by one of the joint obligors is properly imputed upon his portion of the debt.</p>

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

<p>Involves only issues of fact.</p>

<p>Quest'ons of fact only are involved.</p>

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

<p>1. Custom may modify, restrict or enlarge a contract into which it enters, but it cannot create a contract or of itself give rise to an obligation.</p> <p>2. It is settled law that, before a legal charge can be made, there must , be a contract of employment, either expressly made or logically implied from the facts, and that no one can claim compensation from one who did not employ him, however beneficial or valuable the service may-prove to the latter.</p>

<p>1. During slavery the presumption of servitude attached to negroes alone and not to persons of color.</p> <p>2. The' vendee of a married woman possesses the same right as she herself had of showing that real estate purchased by her during the community in fact belonged to her separate paraphernal estate.</p>

<p>'The discretion vested in the lower Court in refusing a motion for a •new trial will not be reviewed or disturbed, where it clearly appears that mover has not been prejudiced by such refusal.</p>

<p>1. No call in warranty is permissible .in a purely possessory action.</p> <p>2. When the prayer of the petition is ambiguous, the allegations contained in the pleadings may be considered in determining the character of the action.</p>

<p>1. In the opinion remanding this cause, we held that defendants did not guarantee the hose against damage, accidental or malicious, and that their guarantee covered only defective or inferior workmanship.</p> <p>2. The evidence adduced on the second trial shows that the injury to the hose is not due to any of the causes covered by the guarantee.</p>

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

<p>An office or apartment leased exclusively to one person forms no part of the premises leased ^to another, even though situated in the same building.</p>

<p>Issues of fact only are involved herein.</p>

<p>Where the lease 1s silent as to the use to which the premises were to be put, parol evidence is admissible to show that such use was an illegal one.</p>

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

<p>1. The widows action for her marital fourth is maintainable directly against the detainer of the husband’s estate without the necessity • of its prior administration 'or liquidation, unless the existence o£ debts- is shown, ;</p> <p>2. A husband cannot be considered as dying “rich” within the meaning of R. C. C. 2382 whose estate of less than $2,000.00 was during the marriage burdened with a usufruct which did not.terminate until after his death.</p>

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

<p>Questions of fact only are involved.</p>

<p>Filing of a sworn statement in the mortgage office and service of an attested account upon the owner, are conditions precedent to the right to recover from the surety on a building contract, or from the owner.</p>

<p>APPLICATION FOR WRITS OF MANDAMUS, ETC., WRIT GRANTED.</p>

<p>1, A plaintiff is not required to detail in his petition the character or extent of his proof.</p> <p>2. The disappearance of arteles does, not of itself warrant the inference of their loss by burglary when no proof of violence and forcible entry is offered and where it is not shown that the premises covered by the policy we're properly closed.</p>

<p>issues of fact only are involved herein.</p>

<p>I. Section 49 of Act 170 of 1898 imposes upon the sheriff who takes possession of personal property the duty to pay the taxes due ' upon the' same.</p> <p>z. An assessment of a stock in trade is an indivisible appraisement of an assessable entity, and every part or item of the property is responsible for the tax upon the whole and is subject to a lien therefor under Section 32 of Act 170 of 1898.</p> <p>3. But the sheriff is not responsible for faxes on other personal property of the debtor which has not been taken possession of by him.</p>

<p>Where a claim for alimony is involved' the appeal should be taken to the Supreme Court.</p>

<p>Damages for slander 'of title will not be imposed unless mali'ce is proved.</p>

<p>Appeal from the Civil District Court, Division “C.’*</p>

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

<p>Appeal from tlie Civil District Court “Division “AN</p>

<p>Appeal from the 27th Judicial District Court for the Parish of St. James.</p>

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

<p>An appeal taken by motion and without prayer for citation at a term subsequent to that in which the judgment became final, will be dismissed, as it should have been taken by petition, accompanied by citation or prayer therefor.</p>

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

<p>r. No suit affecting the title to property, or even any link in the chain thereof, can be maintained, unless the last registered holder of the title, be a party to the suit.</p> <p>2. In a jactitation suit, a plaintiff or intervenor alleging slander of title, must prove actual possession in order to maintain the actjon.</p> <p>3. Where the law provides a particular form of action for the redress of a given wrong, the injured person must resort to that remedy alone, and cannot appeal to the equitable powers of the Court, which may be exercised only “where there is no express law.”</p> <p>4. There is a wide distinction between one who merely clouds the title of another by setting up and recording an adverse claim and title- to the property, and one who attempts to destroy the title of another by "cutting out of the public records every evidence thereof</p>

<p>1. The statutory right of pledge of the lessor on the effects of the sub-lessee cannot be affected by the fact that the sub-lessee has-given to the principal lessee negotiable rent notes which are outstanding in the hands of a third party.</p> <p>2. The trend of jurisprudence is to the effect that the negotiability of a rent note is not affected by the fact that its ■ consideration is to be hereafter realized or that from some contingency it may never be enjoyed, so long as the obligation retains its unconditional character and the certainty of payment in money of a fixed sum on a fixed day.</p> <p>3. Act 64 of 1904. known as the Negotiable Instrument Law, is ■ mainly intended to cpdify the law merchant as settled by the Courts. Unless its language . clearly shows an intention to establish a new rule, it will be construed as merely declaratory of the jurisprudence as it stood before its adoption.</p> <p>4. The Statute as construed by the text writers and the Courts, has left unimpaired the jurisprudence existing at the time of its adaption, on the subject of the negotiability of rent notes.</p>

<p>A clause in a policy of insurance reading: “If movables are removed without the consent of the Association, the right to indemnity shall cease,” does not mean that the entire policy is forfeited by the removal of part of the movable effects, but only that the right to indemnify shall cease as to the effects so removed.</p>

<p>Involves only issues of fact.</p>

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

<p>In order to escape liability for defects in work performed, the undertaker must prove the cause of the defects and that it was of such character as to relieve him from responsibility.</p>

<p>Questions of fact only are involved.</p>

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

<p>.An amendment to an answer Is permissible, provided it does not substantially alter the original defense.</p>

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

<p>Appeal from the Civil District Court, Division “A/7</p>

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

<p>1. A judgment adjudicating to a' parent the whole of the property held in common with the minor, for one-half the value thereof as fixed by the experts, conveys no title to the adjudicatee.</p> <p>2. One cannot be compelled to accept a title which is clearly suggestive of future litigation.</p>

<p>An appeal is not frivolous when the purpose thereof is to suspend the judgment until final action on - another j'udgment for the same debt, but technically not available as res judicata.</p>

<p>Appeal from the Civil District Court, Division *‘E.”</p>

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

<p>ON MOTION TO DISMISS.</p> <p>In computing the time in which a suspensive appeal may be taken, neither the day on which .the judgment was signed nor that on viliiuh the appeal was taken arc-included.</p> <p>I. No such privity exists between those furnishing material to a building contractor and the owner as to enable the latter to bind or estop the former by his declarations or admissions.</p> <p>■ 2. A building is not completed within the meaning of Act 134 of 1906 until it is ready for final delivery and has been tendered to the owner and he has accepted the same, or is in default for not having done so.</p> <p>3. R. C. C., Arts. 2772, et seq., authorizing laborers, material-men, etc., to arrest in the hands of the owner by the service of attested accounts funds belonging to the contractor, are not in conflict with and were not repealed by Act 134 of 1906, the Statute being merely supplementary thereto.</p> <p>4. A party will not be relieved of the costs of appeal where the sole amendment of the judgment covers a minor or clerical error that would have been corrected in the lower Court had its attention been seasonably directed thereto.</p>

<p>.In accordance with a stipulation on file executed by counsel for all parties in interest the appeal is dismissed.</p>

<p>T. 'The principal when sued may call his surety in warranty notwithstanding a lack of privity between the latter and the plaintiff.</p> <p>.2. Where the owner, sued by a material-man to enforce the personal liability imposed by Act 134 of 1906 for his failure to record the security in favor of workmen and furnishers of material as required by the Statute, calls the surety on the contractor’s bond in warranty, the call in warranty is not premature if all claims as between the owner, contractor and material-men are undisputed.</p> <p>3. The failure of the owner to record the bond required by Act 134 of 1906, does not discharge the surety.</p> <p>4. Every means of defense, such as payment, release, etc., which tends to the extinguishment of an obligation admitted or proved to have once existed, must be specially pleaded and cannot be urged under the general issue.</p> <p>5> Evidence received without objection does not enlarge the issues when otherwise admissible under the pleadings.</p> <p>6. A judgment which recites that it was rendered upon a consideration of the evidence adduced is presumed to have been based upon sufficient evidence to support it, though none be found in the transcript, which is affirmatively shown to be incomplete.</p> <p>7. No proof is required to support a claim of attorney’s fees for Services rendered in the presence of the Court.</p> <p>8. By not insisting upon the trial of an exception before the cace is tried upon the merits, the parties are presumed to have waived the exceptions.</p>

<p>1. When a plaintiff resides in a different parish from the defendant, he defendant may institute a demand in reconvention against him for any cause, and he may do so either by way of answer to the main demand, or by instituting a distinct and separate demand before the Court in which the main demand is pending.</p> <p>2. In such case the orginal plaintiff shall be bound to answer without pleading to the jurisdiction, even if he has his domicile elsewhere.</p> <p>3. In matters of jurisdiction, proof is admissible at any time irrespective of the pleadings, where such proof supplies a hiatus.</p>

<p>Appeal from the 28th Judicial District Court, Parish of St. Charles. •</p>

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

<p>1. Evidence received without objection does not enlarge the issues when otherwise admissible under the pleadings.</p> <p>2. When a document forming the basis of a demand was not offered and introduced in evidence below, the case may be -remanded to afford an opportunity to supply the omission.</p>

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

<p>3. The holder of a note cannot, as such, recover thereon, unless it be payable in terms, or in fact, to bearer.</p> <p>■2. The ownership of notes payable to order may be acquired either by original acquisition from the drawer, or by endorsement, or by assignment (which need not be in writing, Hughes vs. Harrison, 2 La., 89).</p> <p>3. The presumption is that a note not endorsed, is the property of the payee. This presumption is not overcome by the mere fact of the note being in the physical possession of a third person; but it may be rebutted by evidence showing that such third person is 'the true owner and bona fide holder thereof.</p> <p>4. Where the evidence does not enable 'the Appellate Court to pronounce definite judgment- for either party, the cause may be remanded for further proceedings. C. P., 906.</p>

<p>Objections to evidence, to be effective, must be timely; and testimony received without objection may serve to enlarge or vary the pleadings. (9 Ca., 114; 18 ffa., 328.)</p>

<p>Involves only issues of fact.</p>

<p>Involves only issues of fact.</p>

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

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

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

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

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

<p>I. Compensation takes place, as a general rule, even unknown to the debtor by mere operation of law and simultaneously existing debts are reciprocally extinguished to - the amount of their rer spective sums.</p> <p>43. Compensation ■ does not take place, however, in the confidential contracts arising from irregular deposits, such 'as deposits of money with a banker, and the depository is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, in the absence of a special mandate from him.</p> <p>3. But the prohibition of the Statute does not extend to the depositor who may therefore exercise the right of compensation.</p> <p>4. The doctrine of compensation by way of exception is liberally interpreted by the Court and carries as a result that, if the insolvent fiduciary could not have successfully resisted the plea, neither can its representative in behalf of the creditors.</p> <p>3. The endorser on a note sued in solido with -the maker may plead his deposit in compensation of his liability on the note.</p>

<p>"Where defendant has the last clear chance to avoid the accident, but fails to do so, he is liable, notwithstanding that plaintiff may himself have been at fault.</p>

<p>Appeal 'from the Civil District Court, Division “"B.77</p>

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

<p>The proper method to establish a claim against a succession is not by rule but by direct action or by opposition to the account.</p>

<p>Á joint owner of real estate on which there rests a mortgage can bine? herself by payments of interest and interrupt prescription of the note as to her virile share due thereon, but she is without power , to bind her children as joint co-owners when they did not authorize the payments of interest and'when there is no solidarity of obligation.</p>

<p>ífhe burden rests upon the endorser of establishing the facts relied upon as operating a release of his obligation.</p>

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