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that the certificate to the transcript is not in due form. The motion to dismiss has not been submitted, and on this day the appellant has moved for a continuance of this cause, and that the lower court be ordered to send up a correct and complete transcript by the next term of this court. The appellant does not even allege that he is not in fault. Under article 898, Code Pr., in which have been embodied acts for the relief of appellants in cases of diminution of the record, this court will grant relief only from the effects of such mistakes, omissions, and similar irregularities as arise without fault on the part of the appellant. More than a year has elapsed since the rendition of the judgment in the lower court. A term of this court, other than the present term, has been held since then. The transcript was not filed in this court until the third day of the present term. The transcript is grossly defective. In fact it is no transcript. Under the circumstances of this case, we hold that the appellant is not entitled to the relief he asks, and his motion for a continuance, and for an order to the lower court to send up a correct and complete transcript, is overruled and refused.

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Supplemental Case.

The court, on appeal from the judgment rendered, having found it based on insufficient evidence, reversed it, but remanded the case for further proceedings. The plaintiff having, after having had the first judgment set aside, and the case reinstated on the docket, caused it to be assigned for trial, tried, and a second judgment rendered in his favor against defendant, without any notice to defendant of these after-proceedings, the second judgment annulled, avoided, and reversed.

(Syllabus by the Court.)

Appeal from district court, parish of De Soto; W. P. Hall, Judge.

Action by the Florsheim Bros. Dry Goods Company, Limited, against Joe Williams, on account for goods sold and delivered. There were two judgments rendered for plaintiff, from each of which defendant appeals. Reversed.

J. F. Pierson and Chas. W. Elam, for appellant.

Act No. 31 of 1890, amending Code Pr. art. 312, does not apply to the trial of causes at issue on answer of defendant. Code Pr. art. 476 et seq.

The act does not apply when the demand is for a balance of account rendered or stated. The act is confined in its application to cases "when the demand is for a sum due on open account."

The ex parte affidavit made under Act No. 31 of 1890 is not competent to support a judgment in a case tried on an answer filed by defendant, nor where the demand is for a sum due for a balance of account rendered or stated, compte arrete.

Such an ex parte affidavit of a single affiant is not sufficient to support a judgment in a case where the demand is for a sum of more than $500 on a balance of account rendered or stated. Rev. Civil Code, art. 2277; 7 La. 104; 17 La. 458; Carl v. Judge, 37 La. Ann. 381.

An account rendered and not objected to in a reasonable time is an account stated, compte arrete. 28 La. Ann. 606; 26 La Ann. 208; 43 La. Ann. 1045.

Plaintiff admits in his motion for a new trial that the judgment of August 23d “was rendered contrary to law, and without sufficient evidence."

Motions for new trial must be made within three judicial days from the rendition of the judgment, and during the term at which the judgment was rendered. Code Pr. 546, 558. But defendant appeared and fled his answer March 2, 1892.

Goss & Parsons, for appellee.

NICHOLLS, J. On February 9, 1892, the plaintiff filed a petition against the defendant, alleging that he was indebted to it in the sum of $2,855.30, with legal interest thereon from judicial demand for goods sold him, as would be duly shown on the trial, and praying for judgment against him for

that amount. On the 2d of March defendant filed an answer, pleading the general issue. On the 13th of April court adjourned to the next term in course, and on the 1st August met at its regular session. On the 22d of that month this case was taken up for trial, and evidence adduced, and on the next day (the 23d of August) the court rendered judgment in favor of plaintiff against defendant as prayed for, signing it the same day. On the 26th of August, 1892, the court adjourned to the next regular term, (November 14th,) on which day it met again. On the minutes of the 14th November the minutes show the following entry: "The Florsheim Bros. Dry Goods Co., L't'd, vs. Joe Williams. 1st Dist. Court, De Soto Parish. In the above numbered and entitled suit comes the plaintiff by counsel in open court, and moves the court in this case to set aside the judg. ment rendered thereon at the term of the court holden in the month of August, 1892, and refix the case for trial, on the ground that said judgment was rendered contrary to law, and without sufficient evidence." On the 16th the court acted on this motion, set aside the judgment, reinstated the case, and fixed it for trial for the 19th, on which day it was taken up, evidence adduced, and judgment rendered and signed the second time in favor of plaintiff against defendant as prayed for in the petition. On the 2d of December, 1892, the court adjourned to its next regular term. On the 3d day of May, 1893, the defendant obtained two orders for devolutive appeals,-one from the judgment first rendered on August 23, 1892; the other from the second judgment, rendered the 19th November, 1892,-which two appeals he perfected by citing plaintiff and giving bond. Both judgments bear the same title and the same number on the docket of the De Soto court, and two transcripts, both also having the same title and number, have been filed in this court under a single number.

authority, Henry Florsheim, president of the Florsheim Bros. Dry Goods Co., L't'd, who deposes and says upon his oath that the above account of Florsheim Bros. Dry Goods Co., L't'd, against Joe Williams for the sum of $2,855.39 is just, correct, due, and unpaid. and that all credits, offsets, and payments known to affiant have been allowed. Henry Florsheim."

"Sworn to & subscribed before me this 29th day of Feb., 1892. Lewis E. Carter, N. P."

This case is in a very anomalous condition. It seems that the plaintiff, after he had obtained a judgment against the defendant, and after the term of court at which it was rendered had closed, became apprehensive that it contained an inherent and radical weakness of which the defendant could at his leisure avail himself. Not wishing that this situation of affairs should longer continue, he, of his own motion, had the case reinstated as an open one upon the docket, and proceeded without notice of any kind to the defendant in any of these after-proceedings to take a new judgment. He ignored the fact that the former judgment had, at the moment he moved to set it aside, become a finality so far as its revision through the instrumentality of a new trial was concerned. He doubtless proceeded upon the theory that article 548 of the Code of Practice, which declares that "a judgment once rendered becomes the property of him in whose favor it has been rendered, and that the judge cannot set aside the same except in the mode provided by law," was not applicable to the party obtaining the judg ment, but had reference solely to an alteration to the prejudice of the judgment creditor; that quoad the defendant the judgment evidenced an obligation, and not a right, and that, the judgment obtained being the property of the plaintiff, he was at liberty to relinquish the benefit of it, and replace matters to the situation in which they were before it was obtained; that the defendant had no possible ground of complaint, but that he was really a gainer by the change. It is very true that the judgment obtained was the property of the plaintiff, and that to a certain extent he had control over it; but the law did not give him control to such an extent as to injuriously affect the rights of others. It was for the defendant, and not for the plaintiff, to decide whether an alteration in the judgment as 17 40 $3,066 43 originally rendered would be disadvantageous to him or not. Though not the owner, in one sense, of the judgment, the defendant had certain rights springing from and resting on the judgment from which the plaintiff could not cut him off, one of which was the right of appeal, an ex parte setting aside of the judgment to the contrary notwithstanding. Of this right he has availed himself, and he is properly before us as an appellant from the first judgment. He claims that that judg

From the record it appears that the only evidence adduced on the first trial was an instrument in the following words:

"Statement.

"Shreveport, Louisiana, Feby. 8th, 1892. "Mr. Joe Williams to the Florsheim Bros. Dry Goods Co., Limited, Dr. 1891. Jany. 28. To statement

rendered

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$3,049 03

March 16. By pro 10 B/c $ 312 19
June 15. By pro 4 B/c.. 120 45

432 64 $2,633 79 221 60 $2,855 39 "State of Louisiana, parish of Caddo. Personally appeared before me, the undersigned

Interest to date.....

Amount due us.

ment was rendered upon insufficient evidence; that at the time the case was tried it did not stand on default, but upon issue joined, on an answer pleading the general denial; that, the amount involved being over $500, plaintiff's demand had to be proved by one credible witness and corroborating circumstances, (Rev. Civil Code, art. 2277;) that while "a corroborating circumstance" would have been found in the fact of a judgment by default, had defendant permitted the case to stand in that way, that "corroborating fact" was done away with by the filing of the answer, and matters had to be determined as to the sufficiency of the evidence by the general rules. He further claims that Act No. 31 of 1890 applies only to cases standing on default, where it was anticlpated that the affidavit to the correctness of the open account sued upon would be strengthened and supplemented by the tacit admission arising from the default itself. In support of the correctness of these views plaintiff presses upon us the judicial admission made by the plaintiff himself in asking for the setting aside of the judgment that it was contrary to law, and rendered upon insufficient evidence. As we have before us the record in which this statement was made, that fact has necessarily come to our knowledge, but not to our knowledge in such a way that on the present inquiry it can be utilized for plaintiff's benefit. In appealing from the first judgment, plaintiff restricted matters to those occurring up to the judgment. He cannot pass beyond that point, so far as the first judgment is concerned. That judgment was obtained, as we have said, solely on the strength of the affidavit of the president of the plaintiff corporation. It was not as absolute, direct, and positive as it should have been in its terms. The amount involved was over $500, and the case was not standing on default. We think the defendant, under the circumstances, was entitled to exact stronger evidence. We are of the opinion that the judgment should be reversed, but the reversal of the judgment need not carry with it the dismissal of plaintiff's demand. For the reasons herein assigned, it is ordered and decreed that the judgment rendered by the district court for the parish of De Soto on the 23d day of August, 1892, in favor of the plaintiff against defendant, and appealed from herein, be annulled, avoided, and reversed, the case reinstated, and remanded for further proceedings according to law.

Supplemental Case.

This case is supplemental to that in the matter of the same parties which we have just decided, and for the facts involved we refer to the statement made therein. After the plaintiff obtained judgment in that case against the defendant, and after the term of court at which it was rendered had been closed, and the delays for a new trial had

expired, plaintiff, upon an ex parte motion to that effect, caused the judgment to be set aside, the case to be reinstated as an open one, and, without any notice of any kind to the defendant in any of these after-proceedings, proceeded to take judgment against him. The defendant has appealed from this last judgment. The proceedings taken by the plaintiff after the rendition of the first judgment and the adjournment of the court were unwarranted in law, and the judgment based upon them is null and void, and should be so declared. It is therefore ordered, adjudged, and decreed that the judgment ap pealed from, being that rendered by the ninth judicial district court for the parish of De Soto in the matter of the above-entitled suit (in favor of plaintiff and against defendant) on the 19th day of November, be, and the same is hereby, annulled, avoided, and reversed.

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1. The question is not one of constructive service vel non, but whether the wife, who is out of the state, can be brought into court to respond in a civil suit, by citation on her hus band, an absentee, who happens to be temporarily in this state. The service, in so far as she is concerned, being personal, the court was without jurisdiction.

2. The husband who joins and aids his wife in committing a tort in an illegal sequestration in proceedings instituted to recover her paraphernal claim is bound in solido for the damages occasioned.

3. A sheriff acting under the directions of a court of competent jurisdiction, and carrying out its orders, is not responsible in damages.

4. Prescription runs from the day the injury or damage was sustained.

5. Damages for expected profits must be clearly established.

Appeal from district court, parish of Bienville; J. J. Sprawls, Judge ad hoc.

B. M. Manning, sheriff, and others. There Action by L. L. Crow and others against was judgment for plaintiffs, and defendants appeal. Reversed.

A. J. Murff, J. E. Reynolds, W. N. Richardson, F. P. Stubbs, and Ben P. Edwards, for appellants.

On Exception to Jurisdiction Ratione Per

sonae.

The second district court for Bienville parish, La., is without jurisdiction ratione personae in a direct personal action, wherein Mrs. Annie P. Mower and her husband, Calvin R. Mower, residents of the state of Illinois, are sought to be made defendants. Code Pr. art. 162; 35 La. Ann. 1184; 95 U. S. 714; 98 U. S. 746; 99 U. S. 362; 42 La. Ann. 362, 7 South. 557.

On the Plea of One Year's Prescription. The seizure of A.'s property under a writ against B. is a quasi offense, and, as such, prescribed by one year from the date of seizure, and not from the day on which final judgment was rendered. 25 La. Ann. 414; 2 Mart. (N. S.) 24; 6 Rob. (La.) 382; 9 Mart. (N. S.) 624; 5 La. 39; 9 La. Ann. 490; Rev. Civil Code, arts. 2315, 2316, 3536; 20 La. Ann. 151, 215, 323; 16 La. Ann. 354; 31 La. Ann. 560-527.

On the Plea of Estoppel.

Plaintiffs who induced or provoked the seizure by their own misconduct are estopped from claiming damages, even if sustained by the seizure. 17 La. 361; 18 La. 339; 7 La. Ann. 321; 8 La. Ann. 71; 30 La. Ann. 241; 38 La. Ann. 267.

On the Merits.

Natural law does not allow one person to enrich himself at the expense of another. 1 Poth. Obl. (3d Amer. Ed.) p. 166.

When a sheriff acts honestly, being a public officer, he must be protected against ex>cessive and vindictive damages. 14 La. 281. Suits in damages against sheriffs, whose duties are delicate and responsibilities great, are cautiously entertained by courts, lest the efficiency of the law be impaired. 8 La. Ann. 77.

Plaintiffs in a case of damages ex delicto must make their case certain; a probable -case will not satisfy the exigency of the law. 16 La. Ann. 121; 21 La. Ann. 185; 18 La. Ann. 597; 15 La. Ann. 268.

Proof of the amount of lost profits, sued for as damages, must be clear, absolute, and certain. 18 La. Ann. 646.

Where A. enters into a timber contract with B. by which A. is to furnish the timber, and B. is to saw and deliver one-tenth to A., a contract or partnership entered into by B. with third persons, unauthorized by A., does not bind A. Rev. Civil Code, art. 2815.

Mills and machinery placed on lands with brick and mortar are immovable. 28 La. Ann. 793; 27 La. Ann. 657.

The true standard for damages is the expenses incurred and the profits lost, as the direct consequence of the seizure and detention, and as far as they are ascertainable on part of the plaintiffs. 27 La. Ann. 191.

A party whose property has been wrongfully attached or sequestered can recover the damages actually sustained, and no more, unless the seizure has been utterly unfounded and malicious. Moore v. Withenburg, 13 La. Ann. 22; Acussory Co. v. McCerren, Id. 214; 1 H. p. 128-16.

No damages are recoverable for a mere inconvenience attending the existence of a public benefit; or for any lawful act lawfully done, which, if causing damage, is damnum absque injuria; or for any act causing no legal in

jury, which is sine damno; or for an injury caused wholly or in part by the plaintiff's own wrongful act, default, or negligence. 5 Amer. & Eng. Enc. Law, p. 3.

The plaintiff in a case of damages ex delicto must make his case certain; a probable case will not satisfy the exigency of the law. 16 La. Ann. 121; 21 La. Ann. 185; 25 La. Ann. 419.

L. K. Watkins, Drew & Stewart, and J. A. Dorman, for appellees.

On Exception to Jurisdiction.

A nonresident can be sued in the courts of this state if he has a resident agent here. Code Pr. art. 196.

Or if he has property in the state subject to the jurisdiction of the court, whether he has a resident agent or not. Code Pr. arts. 116, 963, 964; 29 La. Ann. 817; 28 La. Ann. 576; 19 La. Ann. 36; 18 La. Ann. 209; 2 La. Ann. 1010; 6 La. Ann. 220.

He can be sued in our courts if citation can be made on him personally. Code Pr. art. 165, No. 5; 30 La. Ann. 930; 24 La. Ann. 296; 22 La. Ann. 383.

Being subject to the jurisdiction of our courts if cited, any appearance which waives citation brings him into court. Exception to jurisdiction waives citation, and puts him before the court. 38 La. Ann. 757; 31 La. Ann. 540; 23 La. Ann. 803.

Cotrespassers and joint obligors can be sued at the jurisdiction of either. Here we have B. M. Manning, sheriff, one obligor, before the court; also, .E. C. Drew, resident agent, and C. R. Mower, by personal service on him. Code Pr. art. 165, No. 6.

Wife can be brought into court by service on her husband for her. Code Pr. arts. 182192; 29 La. Ann. 749; 30 La. Ann. 552; 39 La. Ann. 437, 2 South. 63.

Estoppel.

Estoppel is a special defense waiving general issue, and the burden of proof is on party making exception. 33 La. Ann. 749, on top page, and cases cited. Cross, Pl. 127, § 111; 32 La. Ann. 966; 31 La. Ann. 81; 22 La. Ann. 75; 25 La. Ann. 182; 7 Amer. & Eng. Enc. Law, pp. 16-18; 24 La. Ann. 288.

On Merits.

Seizure of A.'s property for B.'s debt is a tort sounding in damages. Rev. Civil Code, art. 2315; 2 La. Ann. 930; 4 Rob. (La.) 39; 34 La. Ann. 58; 7 La. Ann. 524; 15 La. Ann. 491; 23 La. Ann. 489.

Sheriff acting under such a writ, making such a seizure, is liable for all actual damages. 43 La. Ann. 289, 8 South. 886; 15 La. Ann. 283.

The sheriff and seizing creditor are bound in solido, and the creditor need not interfere in the original suit. 5 La. 39; 2 La. Ana. 930; 8 La. Ann. 280; 4 Rob. (La.) 136; 9 Mart. (La.) 624; 4 Rob. (La.) 39.

This suit is for actual damages, and the judgment should be all the evidence will justify, as defendants acted tortiously and without probable cause. 25 La. Ann. 414; 15 La. Ann. 16, 337; 29 La. Ann. 516; 28 La. Ann. 340; 17 La. Ann. 19; 18 La. Ann. 26; 32 La. Ann. 14; 35 La. Ann. 1000; 38 La. Ann. 347.

Plea of Prescription.

Suit against one debtor in solido interrupts prescription as to all. Rev. Civil Code, arts. 2097, 2090, 3552; 32 La. Ann. 627; 29 La. Ann. 300.

In this case the damage was an accruing one, and only prescribed from the time it actually occurred.

BREAUX, J. Mrs. Annie P. Mower, authorized, assisted, and joined by her husband, Calvin R. Mower, domiciled in the state of Illinois, represented by Emile C. Drew, of Bienville parish, as attorney in fact, brought an action against T. M. Martin, and caused property to be sequestered. The indebtedness to her by the defendant in the suit, T. M. Martin, was $600, due on trees sold to the defendant in that case, and $190 for timber she claimed was destroyed by him. She made the usual allegation for a writ of sequestration, and described the property she desired to have sequestered, and which the sheriff sequestered and took into his possession on the 10th day of December, 1891. On defendant's motion this writ was dissolved, for the reason that she had no privilege that would sustain a sequestration. The property sequestered was claimed at the time by a partnership of which H. L. Crow, Z. Martin, L. L. Crow, and T. M. Martin were the members. The partnership was dissolved. The three partners who succeeded to the rights of the partnership brought suit against the sheriff who executed the writ of sequestration, against Mrs. Mower and her husband, and against E. L. Drew, agent, for damages in solido by the illegal sequestration. One citation to Mrs. Mower and husband was served on E. C. Drew, agent. Another, addressed to the same parties, was served on C. R. Mower, the husband, personally, who was temporarily in the parish on the 10th day of December, 1892. They subsequently interposed the plea of want of jurisdiction ratione materiae to try a cause against them, being absentees, which was overruled. They also interposed the plea of estoppel, and pleaded the prescription of 12 months; also, no cause of action. The answer of the defendants is a general denial. The judgment of the district court condemns the defendants B. M. Manning, sheriff, C. R. Mower, and P. P. Mower in solido in the sum of $5,004.25, with legal interest from judicial demand. From this judgment they appeal.

The sheriff having made service of the citation to Mrs. Mower by handing it to

her husband, the question arises as to whether it is such a service as binds and is legal as to her, an absentee. The service upon Drew, agent, is illegal, for he was without authority to represent her in the suit. It therefore remains for us to determine the legal effect of the citation to Mrs. Mower served upon Mower, her husband. The absentee may be cited to answer wherever he is found within the limits of the state. The service was legally made upon the absentee Mower, in so far as he is personally concerned. If the writ and citation be directed against a married woman, the service may be made by delivering it to her husband. A defendant who is an absentee may be brought within the court's jurisdiction by personal service. The service is personal when delivered to himself. The wife was an absentee, and no personal service was made as to her. The husband's authority was sufficient to bind her to respond if she were present, in so far as relates to a citation, pure and simple. In this case, if it be decided that the service is legal against the wife, it will have the effect of constructively bringing her into court as if present, and of conferring jurisdiction. The condition under which jurisdiction arises is personal presence. By the presence of her husband she is not present, personally nor constructively. The intimate business relations the law intends should exist between the husband and wife, the authority that he is intrusted with in business matters in which she is concerned, do not enable him to personate her as present when she is absent. One of the elements to confer jurisdiction is lacking,-the service upon the wife personally. The personal service upon the husband is not a personal service as to her. The case of Pennoyer v. Neff, 95 U. S. 714, to which our attention is invited, has no bearing. The question is not one of constructive service vel non, but whether the wife, an absentee, can be brought into court by citation on her husband, absentee, who happens to be temporarily in this state. The service, in so far as she is concerned, not being personal, the court was without jurisdiction. The plea to the jurisdiction invoked as an admission of citation is not such an admission as waives citation, it having been interposed by an absentee. As against her, citation is the basis of the action. The plea, as presented, covers both want of citation and jurisdiction.

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The court was without jurisdiction because the defendant had not been legally cited. The amount claimed being paraphernal, the husband having joined his wife to authorize her and assist her in the suit, the defendant contends that plaintiffs have no right of action against him. Every person is responsible for the damages he has occasioned by his negligence or imprudence. If defendant's wife has committed a trespass,-a tort, as is alleged,-and thereby has caused dam

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