(106 La.)

STATE ex rel. SORREL v. FOSTER, Judge. (No. 14,073.)

(Supreme Court of Louisiana. Dec. 16, 1901.) SUPREME

COURT-JURISDICTION-MANDAMUS TO JUDGE-STOCK KILLED ON

TRACK-PLEADING.

1. Article 90 of the constitution of 1879, and article 94 of the constitution of 1898, give this court plenary powers of control and general supervision over inferior courts.

2. And in the exercise of this power the court will issue its writs in its discretion, according to the exceptional features of each case submitted.

3. The writ of mandamus will lie to compel a judge to try a case, when he declines to try it on an erroneous determination of a question of practice preliminary to the whole case.

4. Act No. 70 of 1886 relieves the owner of stock killed from proving negligence or fault on part of the railway company, in an action to recover the value of the stock.

5. Accordingly, a sufficient cause of action is set forth by the owner when he avers his animal has been killed, when and where killed, and that its value is so much.

6. As a plaintiff may not prove what he does not allege, so he need not allege that which he does not have to prove to make out his case. (Syllabus by the Court.)

Application by the state, on the relation of A. Sorrel, for writs of mandamus and certiorari to T. Don Foster, judge Writ of mandamus issued.

Cammack & Muller, for relator. Percy Saint, for respondent.

BLANCHARD, J. The relator instituted suit in the Second justice of the peace court, parish of Iberia, against Morgan's Louisi ana & Texas Railroad & Steamship Company, to recover the sum of $90, the value of a bull killed by the company's train of cars. The company failed to plead or appear in the magistrate's court, and judgment in due course was entered up in favor of the relator for the amount claimed. Whereupon, the company took a suspensive appeal to the district court of that parish, of which the respondent herein is the presiding judge. In the appellate court the defendant company filed an exception of no cause of action.

While the justice court is not a court of record, and no petition setting forth a suitor's cause of action is necessary, it seems, nevertheless, that Sorrel (plaintiff in that case, relator herein) did file a petition, in which he alleged the killing of his bull by the railway cars, the time and place of killing, the value of the bull, and failure to pay on amicable demand made. His prayer was for citation upon the defendant company and judgment for $90 and costs. The exception of no cause of action filed in the district court was leveled at this petition in this, to wit, that it did not contain an allegation the bull had been killed through the fault of the agents of the company. This exception, tried on the face of the papers, was sustained by the district judge, and the plaintiff's suit dismissed at his costs. After vainly urg

ing an application for new trial, the plaintiff, Sorrel, applied to this court for the exercise of its supervisory control, under article 94 of the constitution of 1898. This is sought through the writ of certiorari coupled with mandamus.

Relator alleges he has exhausted all legal remedies before the inferior court; that he has no remedy by further appeal; and that justice has been denied him. He contends no petition was necessary setting out his case in the justice court, and even if it were it was not required it should contain an averment that the bull was killed through the negligence of the railway; that Act No. 70 of 1886 specially relieves the owner of stock killed by a railroad from showing the killing was the result of the fault of the company; that all the owner has to prove is the fact of killing and the value of the animal, and thereupon he takes judgment, unless the defendant shows affirmatively the injury or killing was not through its fault or negligence; that if it be not incumbent on a plaintiff to prove negligence it would be vain and idle for him to allege it. The prayer of the application for the writs is that the respondent judge be commanded to reinstate the cause on his docket and proceed to the trial thereof on its merits. Responding to the rule nisi, the judge sends up the record of the case; pleads to the jurisdiction of this court to grant the relief sought; avers the court cannot legally direct inferior courts in the matter of the judgments they should render in causes pending before them; that certiorari cannot be substituted for appeal, etc. He further responds that, while it was not incumbent on the relator to file a petition in the magistrate's court, he did, in point of fact, do so, and is bound by the pleadings so filed; that in his petition he had failed to allege the killing of the bull was the fault of the railway company; that this averment was sacramental, and without it no cause of action was disclosed. His further contention is that Act No. 70 of 1886 merely shifts the burden of the proof of negligence in damage suits for killing stock from the owner to the railroad company, and does not relieve the owner from the necessity of alleging the negligence of the company. Ruling. Article 90 of the constitution of 1879, and article 94 of the present constitution, give this court plenary powers of control and general supervision over inferior courts. State v. Judge of Second City Court, 37 La. Ann. 285; State v. Lazarus, 36 La. Ann. 578. State v. Justice of the Peace, 41 La. Ann. 908, 6 South. 807. It is this power which is here invoked, and this court will issue its writs in its discretion, according to the exceptional features of each case submitted. State v. Lazarus, 36 La. Ann. 582. The writ of certiorari will issue, coupled with mandamus, when the judge of an inferior tribunal refuses to try a case, and such refusal amounts to a denial of justice. State v.

Judge of Twenty-Sixth Dist. Court, 34 La. Ann. 1178; State v. Judges of Court of Appeals, 36 La. Ann. 482; State v. Coquillon, 35 La. Ann. 1102; State v. Judge of Fifth Dist. Court, 32 La. Ann. 315; State v. Skinner, 33 La. Ann. 146. The writs thus coupled will be issued in cases where the law has assigned no relief by the ordinary means, and when justice and reason require that some mode should exist of redressing a wrong, or of redressing an abuse of any nature whatsoever. Code Prac. arts. 830, 837, 838; State v. Lazarus, 36 La. Ann. 578, 581. Here, there was no appeal from the ruling of the district judge, and, consequently, no relief could be had by the ordinary means. The position of the relator is that the judge illegally refused a trial of his cause on its merits, and that this refusal is equivalent to failure to perform duty. It has been distinctly held that the writ of mandamus will lie to compel a judge to try a case when he declines to try it on an erroneous determination of a question of practice preliminary to the whole case. State v. Ellis, 41 La. Ann. 41, 6 South. 55; State v. Judge of Twenty-Sixth Dist. Court, 34 La. Ann. 1177; State v. Judge of Third Dist. Court, 32 La. Ann. 542; Ex parte Bradstreet, 7 Pet. 634, 8 L. Ed. 810; U. S. v. Peters, 5 Cranch, 115, 3 L. Ed. 53. See, also, High, Extr. Rem. §§ 151, 250, 251. A distinction is always recognized between cases where it is sought by mandamus to control the decision of the inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law, or of practice, preliminary to the case. State v. Judge of Civil Dist. Court, 34 La. Ann. 76. And that is the case at bar. lator urges that the respondent judge has dismissed his case on an erroneous determination of a question of practice preliminary to a trial upon its merits. The question, then, presented is: Did the judge err in sustaining the exception of no cause of action because the relator had failed to allege in his petition the killing of his bull was the result of the fault of the railway company? The answer to this depends upon the effect to be given to Act No. 70 of 1886. That act reads: "That in suits against railroad companies for the loss of stock killed or injured by them, it shall be sufficient in order for the plaintiff and owner to recover to prove the killing or injury, unless it be shown by the defendant company that the killing or injury was not the result of fault or carelessness on their part, or the negligent or indifferent running or management of their locomotive or train." It will be observed this statute changes in an important respect the rule which obtained prior to its enactment. Then, the claimant owner must prove the killing or injury and the fault of the company. Now, it entirely suffices for the owner to recover that he prove merely the killing or injury. Since the law relieves the

Re

owner of proving negligence, wherefore the necessity of alleging that which he does not have to prove? His cause of action is com. plete, under the law as it now stands, when he sets forth his animal has been killed by the defendant company, where and when killed, and that its value is so much. He does not have to prove anything save this to recover. Therefore he has a cause of action when he alleges this. The public policy of the state announced in Act No. 70 of 1886 is that railway companies must pay for all stock killed or injured by their trains unless they (the companies) succeed in showing the killing or injury occurred through no fault of theirs. It is therefore for the railway company, in its answer to a suit, to allege no negligence, and to prove no negligence. It is not for the plaintiff to either allege fault or prove fault on part of the company. It would be requiring a vain thing of the plaintiff to insist he must allege negligence when he does not have to prove it. It is surplusage to aver that which need not be proven to make out a case. 2 Rice, Ev. p. 1101. As a plaintiff may not prove what he does not allege, so he need not allege that which the law relieves him from proving. The district judge should have overruled the exception of no cause of action filed in his court, based on the absence of the averment of negligence in the relator's petition.

It is therefore ordered that a peremptory writ of mandamus do issue, commanding the respondent judge to reinstate the cause of A. Sorrel against Morgan's Lousiana & Texas Railroad & Steamship Company on his docket, and to proceed to the trial thereof on its merits.

(106 La.)

WOLF v. EDWARDS. (No. 13,692.)1 (Supreme Court of Louisiana. Dec. 2, 1901.) INTERDICTION-ANNULMENT OF ACT.

An act done by a party prior to the petition for his or her interdiction cannot be annulled except upon proof that the cause of such interdiction notoriously existed at the time when the act was done, or that the person who dealt with the party of unsound mind could not have been deceived as to the state of his or her mind.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Action by Morris Wolf against Mrs. M. E. Edwards. Judgment for plaintiff, and defendant appeals. Affirmed.

William S. Parkerson, for appellant. Dart & Kernan, for appellee.

BLANCHARD, J. This is a proceeding via ordinaria for the collection of a mortgage note of $7,000, with interest, attorney's fees, etc. Judgment for the amount of the note is asked, with recognition and enforcement of the special mortgage securing the

1 Rehearing denied January 6, 1902.

same. The defense, in effect, is that the defendant was non compos mentis when she executed the note and mortgage; that soon thereafter she was interdicted; that the judgment of interdiction was duly published; that Geo. A. Hero, from whom the plaintiff acquired the note, was, by his situation, surroundings, and information, charged with knowledge of her mental incapacity at the time the note and mortgage were executed, and at the time he negotiated the note; and that his vendee of the note (plaintiff herein), having acquired the note after the publication of the judgment of interdiction, is likewise chargeable with knowledge of the facts, and cannot recover without proof of consideration for the note having inured to the benefit of the maker. The sult was brought against the curator of the interdict, and it is he who urges the above defense. The judgment of the trial court was in favor of the plaintiff, and the curator prosecutes this appeal.

Ruling: We find that this note and mortgage were executed on the 22d of March, 1899. The note is in the usual form, drawn by the maker to her own order, and by her indorsed, and paraphed by the notary to identify it with the act of mortgage. Mrs. Edwards, against whom at that time no interdiction proceedings were pending, appeared at the office of the notary, accompanied by her two sons, one of whom was yet a minor. The notary was a lawyer, as well as notary, and at the request of these parties he took the necessary steps to emancipate the minor. The petition for emancipation was drawn; the mother and tutrix signed a written consent to the emancipation; the parties, including the mother, went before the judge; and on the showing made, with the parties before him, he entered up and signed a judgment of emancipation. The purpose of this was to relieve the younger son of the disabilities of minority, to the end of making a settlement with him of his interest in the estate of his deceased father, administered by his mother as tutrix, and, following this settlement, to have erased and canceled the legal mortgages existing on the mother's property in his favor. It appears that a settlement was effected, and in due course the mortgages were canceled and erased. the day the judgment of emancipation was signed, at the request of Mrs. Edwards, or that of the older son, made in her presence, the notary prepared the mortgage in question here, and the note sued on, with other notes, and the same were signed and executed by her. There was merely a nominal mortgage. The notes were intended for negotiation to other parties. In other words, they were to be put upon the market. The notes, it seems, were left in charge of the notary until the 3d of April, 1899, at which time the older son, Daniel Edwards, called and obtained the delivery to him of two of them; and these two, aggregating $14,000, he negotiated the same day to George A.

On

Hero, who paid him therefor in cash (check) $4,874, and delivered up to him a note for $9,000 drawn by Mrs. Mary E. Edwards, the defendant herein, and indorsed by Daniel Edwards, which note he (Hero) held for value paid before maturity. One of the notes thus acquired by Hero forms the basis of this suit. It was payable one year after date, and drew 7 per cent. interest from date. Hero kept the two notes until December 27, 1899, and then negotiated them to the plaintiff herein, who paid him therefor in cash on that day $14,762.20. The one sued on matured March 22, 1900, and not being paid was protested, and this suit followed. Interdiction proceedings against Mrs. Edwards, taken at the instance of her married daughters, were begun April 11, 1899, and culminated April 26th in a judgment of interdiction. This judgment was published in two of the New Orleans newspapers from and inclusive of May 4th to and inclusive of June 3d. All the parties reside in New Orleans. It thus appears that when the note and mortgage were executed, and when Geo. A. Hero acquired the same, no interdiction proceedings against Mrs. Edwards had been taken. It appears, further, that the time at which the plaintiff, Wolf, acquired the note, was after judgment of interdiction had been pronounced and published. Though Wolf acquired the note from Hero subsequent to the interdiction and its publication, he is entitled to claim and assert the same rights in and to it that his transferror had. In point of fact, Wolf had no knowledge whatever of the mental unsoundness of the maker of the note, nor of the interdiction proceedings that had been taken, nor of the judgment of interdiction. He had not seen or been told of the publication of this judgment. He bought the note as an investment, in good faith, for value, before its maturity. Mrs. Edwards executed the note and mortgage 20 days before she was proceeded against for interdiction, and 35 days before the judgment interdicting her was rendered. Hero acquired the note sued on 8 days before the interdiction proceedings began, and 23 days before the judgment was rendered. The plain codal provisions of the law are determinative of the controversy. Article 402 of the Civil Code declares: "No act anterior to the petition for the interdiction shall be annulled, except where it shall be proved that the cause of such interdiction notoriously existed at the time when the acts, the validity of which is contested, were made or done, or that the party who contracted with the interdicted person could not have been deceived as to the situation of his mind." To the same effect is article 1788 of the Code. There is no proof in this record that any cause for interdiction of Mrs. Edwards notoriously existed either at the time she executed the note, or at the time Hero acquired the same. Nor is there proof that Hero at either date knew of her mental unsoundness. Hero acquired the note, paying

value therefor, before its maturity, from one in apparent legitimate possession of it, to wit, the son of the maker. The circumstance that he and this son were brothers-inlaw-had both married into the family of Mr. O. C. Oliver-is not sufficient to charge him with knowledge of the mental unsoundness of the mother of his brother-in-law, supposing it to be true that such mental unsoundness existed at the time the note was executed and at the time he negotiated it. Neither is it sufficient to charge him with knowledge that the instrument originated in fraud and illegality on the part of the son, if it be true that such was the case. It is shown that Mrs. Edwards had been in the habit of lending her name and credit to her son, and that Hero had repeatedly, prior to his acquisition of the note sued on, discounted her paper at the request of the son. Judgment affirmed.

(106 La.)

STATE v. ALEXANDER. (No. 14,120.)1 (Supreme Court of Louisiana. Dec. 2, 1901.) FUND IN COURT-RES JUDICATA-FILING

PLEA.

1. In a contest over a fund in court, the contestants need not file formal answers or exception to each other's pleadings, but may urge without pleading same all objections they may have to each other's claims, whether such objections be founded on law or on fact.

2. Where all the facts necessary to support a plea of res adjudicata are to be found in the record, such plea may be filed in the supreme

court.

3. The judgment on a rule to distribute proceeds may serve as a basis for res adjudicata, although not signed.

(Syllabus by the Court.)

Appeal from criminal district court, parish of Orleans; Joshua G. Baker, Judge.

Appearance bond of Sonny Alexander was forfeited, and from a judgment rendered Nicholas Gaspar, surety, appeals. Affirmed.

Albert Voorhies, for appellant. George W. Flynn, for appellee administratrix. Henry Garland Dupré, Asst. City Atty., and Samuel L. Gilmore, City Atty., for appellee city of New Orleans.

PROVOSTY, J. The appearance bond of the defendant was forfeited, and for the amount of the bond a judgment was entered against the surety. Under this judgment the property of the surety was sold, and the price was received by the sheriff. This price exceeded the amount of the bond. The sheriff died without having distributed the money thus received, and the administratrix of his succession obtained from the court an order for turning over the fund to the present sheriff. The present sheriff, treating this order as a rule to show cause, made answer to it. He averred that he was not obliged to receive this money, that it

1 Rehearing denied January 6, 1902

should be paid to the party in interest, the city of New Orleans; and he prayed that the city of New Orleans be ordered to show cause why the money should not be paid to her. The city pleaded that she was entitled to $500 of the sum, and she prayed that this amount be paid to her. Thereupon, the administratrix came in with a motion that the surety be likewise made a party, he having an interest for the excess of the money after satisfying the claim of the city. The surety pleaded that the judgment of forfeiture and the sale made thereunder were absolute uullities, because, among other reasons, the accused had been rearrested, and after such arrest had been discharged by nolle prosequi. He excepted to the proceeding by rule, and gave notice of his intention to bring suit thereafter to annul the judgment and the sale; and he prayed that matters be held in statu quo to await the termination of this said intended suit; and he prayed, further, in the alternative, and "as a last resort," that the entire fund be given to him. In this court both parties have filed further pleadings. The surety has filed an assignment of errors, in which he has set out fully the grounds on which he relies for claiming that the judgment of forfeiture and the sale made thereunder are null, and for objecting to the distribution of the fund. The city of New Orleans has pleaded res adjudicata against the demands of the surety. This plea of res judicata is founded on the fact that heretofore the same demand has been made by the same surety, in the same case, contradictorily with the same parties, before the same court, and been rejected by judgment now final. This plea is borne out by the facts, and has to be sustained. Such a plea, when based on facts to be found in the record, may be filed in this court. Carpenter v. Beatty, 12 Rob. 540; Code Prac. art. 346. But there was no need to file the plea. The answer of the surety to the rule was, without plea, open to every objection of law and fact. 1 Hen. p. 1155, No. 1; Succession of Romero, 28 La. Ann. 607; Succession of Planchet, 29 La. Ann. 521; Succession of Ames, 33 La. Ann. 1325; Succession of Sparrow, 39 La. Ann. 700, 2 South. 501. The proceeding was a contest over a fund. Issue did not need to be joined as between the several contestants, by formal pleadings. The issue was tacitly formed between them, each denying the claims of the others. The claim of each was open to all the objections of law and fact that every other could bring against it without need of formally pleading such objections. The judgment thus pleaded as res adjudicata was not signed; but it did not need to be. It was merely incidental, distributing a fund realized under the main judgment. Fox v. Tio, 1 La. Ann. 334.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be maintained at the cost of the appellant.

(106 La.)

HOWCOTT v. PETTIT. (No. 13,783.) (Supreme Court of Louisiana. Dec. 16, 1901.) PETITORY ACTION-PLEADING-RES JUDICATA.

1. In a petitory action the defendant is bound to plead all the titles under which he claims, and cannot evade the judgment rendered in such action by setting up a title which he might have urged by way of defense there

to.

2. The case is the same where, the defendant being the real party in interest, the title subsequently relied on stands in the name of another person, who holds as his representative, and for his accommodation and account.

3. In interpreting a petition, in order to determine whether it discloses a cause of action, all of the allegations are to be considered together, and with reference to the prayer.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Thomas C. W. Ellis, Judge.

Action by William H. Howcott against George S. Pettit. Judgment for defendant, and plaintiff appeals. Reversed.

Richardson & Soulé, William Winans Wall, and Kernan & Gowland, for appellant. George W. Flynn, for appellee. Sullivan, for appellee warrantor.

Statement.

John P.

MONROE, J. The petition in this case, Interpreted in connection with the exhibits annexed to and made part of it, alleges: That in June, 1893, Henry C. Dibble brought a petitory action against Joseph D. Taylor, praying to be declared the owner of certain real estate in New Orleans, of which Taylor was in possession. and of which he claimed to be the owner by virtue of certain tax titles. That in March, 1895, there was judgment in favor of said Dibble and against Taylor decreeing the former to be the owner of the property, and annulling the tax title set up by the latter, which judgment was affirmed by the court of appeals upon February 7, 1896. "That after said judgment was rendered, and pending the appeal therefrom, the said Taylor produced an adjudication by the state tax collector, on the 7th day of November, 1889, under Act No. 82 of 1884, in the name of J. C. Molyneaux, and caused an act of sale to be passed from the state tax collector to said Molyneaux on the 31st day of January, 1896, and caused it to be recorded on the 4th day of February, 1896. Petitioner avers that said title was

a fraudulent simulation, and was made pendente lite, and said tax adjudication was made to one Peter Molyneaux, acting for said Taylor, himself, as will appear by his sworn testimony in Exhibit C [annexed to and made part of the petition], and the said tax title was placed in the name of said James C. Molyneaux for the purpose of evading the effect of said judgment against the said Taylor, and it was afterwards placed in the name of said George Pettit for the same purpose; that said Pettit could acquire no legal title

from said Molyneaux, who had none, as said sale was in violation of article 2453 of the Revised Civil Code, and was not an innocent purchaser, and he paid nothing for it, and took said property in fraudem legis, in his name, without inquiring as to the title, without seeing it, and only to accommodate said Taylor." The prayer is that the petitioner be held to be the owner of the property, and that the title set up by Pettit be decreed a fraudulent simulation, or annulled as fraudulent. The defendant, Pettit, filed an exception of no cause of action and a plea of estoppel, and afterwards filed an answer calling J. C. Molyneaux in warranty, and Molyneaux, having been in the meanwhile interdicted, appeared through a curator ad hoc, and also excepted on the ground that the petition discloses no cause of action. These exceptions were overruled, but the case was then transferred to another division of the civil district court, the judge of which reinstated them to be tried with the merits, and thereafter maintained the exception of no cause of action, and dismissed the suit, whereupon the plaintiff appealed.

Opinion.

We are of opinion that the judgment appealed from is erroneous. Taking the averments of the petition to be true, the plaintiff's author, Dibble, sued Taylor for the property in controversy, and thereby subjected him to the necessity of setting up whatever titles he may have expected to rely on. Taylor, according to the petition, was at that time the real party in interest in the matter of the adjudication of November 7, 1889, the adjudicatee having been merely his agent and representative, who allowed the use of his name for the accommodation of Taylor, and, for his accommodation, transferred the title to Pettit, who allows his name to be used for the same reason; so that upon the face of the papers it appears that the title under which Pettit now claims the property is held for the account of Taylor, and was so held by Molyneaux when the suit brought by Dibble was tried and decided, and it therefore appears that Taylor, through Pettit, is now setting up a title, after final judgment against him, which he was bound to set up as a defense to the suit in which that judgment was rendered. This is inadmissible. "In a petitory action the defendant is bound to plead all the titles under which he claims to be owner, and a final judgment rendered in favor of plaintiff may be pleaded as res adjudicata against any title which the defendant was possessed of at the time, but omitted to plead." Shaffer v. Scuddy, 14 La. Ann. 575. "Courts of justice, in stating the rule, do not always employ the same language, but where every objection urged in the second suit was open to the party, within the legitimate scope of the pleadings, in the first suit, and might have been presented in that trial, the matter must be considered