where it had been switching, and was brought from behind on the said side track or switch, shoving before it two freight cars, and, in coupling said freight cars to the baggage or express or smoking car, to which the coach in which the ladies and children were was attached, struck it with great force and violence, thereby shoving and pushing with equal force and violence against the coach in which they were, thereby producing and causing a violent and sudden jerk and concussion, "by which his little girl, Tullia, who was then standing very near to her mother, was thrown off the said coach," he nowhere charges that the coupling, as made on that day, was, as to time, place, or manner, either unusual, unnecessary, improper, or negligent. The negligence relative to the coupling, of which the plaintiff complains, is not as to its violence, but is declared to be the failure on the part of the officers and employes of the road to have given notice that it was about to be made. In designating the negligence which is made the basis of the action, that relating to the failure to construct the station house is charged as culpable, gross, and wanton, while that relative to the failure to give notice is characterized simply as negligence, without those adjectives attached. We do not think that, under the pleadings, the character of the coupling is strictly an issue. It may be well to say, however, that there is nothing in the record which would lead us to the conclusion that the coupling on the day in question was materially different from that upon other days, or that it was made with unnecessary force or shock.

The defendant company owns and operates a branch road from Cade station to the town of St. Martin's. The branch was constructed about 1882. There is a freight depot at Cade, but no station house or waiting room for passengers. The custom seems to have been for passengers going to St. Martin's, or coming from that place, to take or retain seats in the passenger coach of the branch train, which usually arrived at Cade before the regular train, and there awaited its arrival. On the 3d of June, 1892, Mrs. De Mahy and her two children, one 6 years and the other 2 years and 11 months old, took passage at St. Martin's for Cade, where she expected to meet her sister coming from New Orleans. She was accompanied by several friends. There were a number of ladies and children, and some men, upon the train, as passengers. When the train reached Cade, it was sidetracked, the locomotive detached, and used for some time in switching freight cars which were to be, and were afterwards, attached to it. When the coupling was made of the locomotive and these freight cars to the coaches which had been sidetracked, there resulted a very considerable jolt, which caused the smaller child of Mrs. De Mahy, who was standing on the platform of the passenger car, to be thrown v.14so.no.2-5

down, and to fall through the opening between that coach and a baggage or express car which was next to it. The mother, who was standing in the coach, near the door, immediately ran out, jumped upon the ground, and thrust her arm under the still moving car to reach and protect the child. In so doing, her arm was caught under, and badly broken by, one of the wheels. That she was very seriously injured, and suffered great pain, is beyond question. In all probability, she will never regain fully, if at all, the use of the arm, between the elbow and the shoulder.

On the day after the accident, Dr. De Mahy, the husband of the injured lady, wrote as follows to the superintendent of the defendant: "St. Martinsville, La., June 4, 1892. Dear Sir: Dr. Duperier told me that you had made inquiry about the accident to my wife and child. Let it be distinctly understood that the railroad company is in no way to blame for it. Mr. B. L. Durand-I must say, one of your best officials-has no reproach to receive from anybody, and I formally exonerate him from the least censure. Hoping this will be favorably received, I am, yours, respectfully, Henry De Mahy, M. D." Dr. Duperier, the gentleman referred to in this letter, says in his testimony that he was called as a physician to the residence of Dr. De Mahy the evening of the accident, on which occasion he asked him the question, "How did the accident to your wife occur?" to which he answered, "I cannot blame the railroad company, nor any of the officials of the same, for the accident." Notwithstanding this declaration and letter, this suit was instituted, plaintiff assigning as reasons for bringing it those which we have copied from the pleadings.

During the trial, defendant offered, but was not permitted, to prove that, at the moment of the accident, Mrs. De Mahy herself declared that she blamed no one but herself for the accident, and that no fault was attributable to defendant. These declarations, as part of the res gestae, should have been admitted.

was

Plaintiff claims that the accident caused by the fault and gross, wanton, and culpable negligence of the defendant, in not having built a station house and waiting room for the accommodation of passengers at Cade. We are not called on to say, in this case, whether defendant was or was not under a legal duty and obligation to have done so; for, upon the assumption that it was, the failure to do so was not the proximate cause of the injury. The case must turn upon other facts.

We have said that at the moment of the coupling the child was standing upon the platform of the passenger coach. The only witness of the plaintiff who testifies upon that subject expressly states that such was the case, and this is supported by a number of witnesses for the defense. The evidence

shows that the little girl had gone several times upon the platform, and been brought back; and the imprudence of her being in such a position, independently of any question of coupling, was both manifest and recognized. Had she not been in this particular place, she would have received no harm. We cannot hold otherwise than that it was negligence in the mother to have permitted a child of that tender age to have been where she was. That fact was the direct contributing cause of her falling. This suit is not for damages for injury done to the child, but for those received by the mother, and for injuries by the mother, not as the direct and immediate result of the coupling, upon herself, but as the result of her going out after the jolt had taken place, and she had received no personal harm therefrom, and placing her arm under the car in her effort to guard and save her child. Plaintiff's counsel contend that in doing so she was not only not to blame, but that she showed the greatest heroism and greatest devotion. In this they are certainly correct, for the mother's conduct, both at the time and afterwards, was such as to command the highest admiration; but counsel are mistaken in thinking that the contributory negligence which defendant charges was in that act. What it charged as contributory negligence was the failure of the mother to have kept the child inside of the coach, and the allowing her to have gone upon the platform. It is most deplorable that she should have lost sight of her, but, for the consequences upon herself of having done so, she cannot hold the defendant responsible.

Very considerable testimony was taken as to whether the conductor had notified the passengers to keep their seats, and informed them of the danger of standing on the platform. There is testimony from several witnesses to the effect that the conductor, in a tone loud enough to be heard through the car, told different passengers to keep their seats, one of the witnesses stating that Mrs. De Mahy herself was one of those to whom he addressed himself. The conductor swears that he did tell the passengers to do so, and the testimony to the contrary is purely negative, and by parties who, being engaged in conversation, were not likely to have noticed this fact. There is no testimony as to whether he warned them of any danger to result from not observing his directions, but we think there was no particular danger to have been apprehended, unless under such an exceptional circumstance as occurred on this occasion, (the going of so young a child upon the platform,) which he could not fairly be expected to have anticipated.

The evidence shows that the employes of the company were, at the time of the coupling, at their usual, respective posts, for that particular work, and further shows that when the coupling took place the approach of the cars for that purpose could be seen

through the baggage car by all not having their backs turned in that direction, as seems, unfortunately, to have been the case with Mrs. De Mahy at that time. For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment thereon rendered be annulled, avoided, and reversed, and that there be judgment in favor of defendant against plaintiff, rejecting his demand and dismissing his suit, with costs in both courts.

PARLANGE, J., takes no part.

(45 La. Ann.)

STATE ex rel. DUFFARD v. WHITAKER, Recorder.

(Supreme Court of Louisiana. Nov. 20, 1893.) MANDAMUS TO COURT-DENYING APPEAL - COSTS.

1. A judge who refuses to grant an appeal in an appealable case on the grounds that the issues raised have been repeatedly determined by the supreme court adversely to the contentions of the party moving for the appeal, and that the applicant was through his motion seeking to abuse the right of appeal, acts unjusti fiably. He has nothing to do with the motives prompting the exercise of the legal right, nor the final result of the controversy.

2. Though the rulings of a judge in a cause be erroneous, he is protected in that cause from liability for resulting costs, from motives of public policy.

(Syllabus by the Court.)

Original application in the name of the state at relation of Jean Duffard for writs of mandamus and certiorari to E. S. Whitaker, recorder. Granted.

James C. Walker, for relator. Louque & McGloin, for respondent.

NICHOLLS, C. J. Relator avers that on or about 23d of September, 1892, E. Gray, an inspecting officer of the board of health, assigned to duty in the city of New Orleans, made affidavit against him before the Hon. E. S. Whitaker, recorder of the first recorder's court of New Orleans, complaining that relator had violated Ordinance No. 6,596 of the city of New Orleans approved August 4, 1892, by refusing to furnish upon his demand a sample of the milk contained in the cans carried by relator in his wagon as a dairyman, and praying for his arrest and punishment for the said reason. That relator was accordingly arrested, and held to bail, and finally, on the 24th May, 1893, relator was put upon his trial before said recorder on said charge, and thereupon adjudged to pay a fine of $25, and, in default of payment, to be imprisoned in the parish prison of the city of New Orleans for 30 days. Relator avers that he did refuse to furnish the said health officer with the required half pint of milk or sample, but not at all because the said milk was impure or adulterated. That said milk was not impure or adulterated, but, on the contrary, the same was equal in point of

quality in all respects to the standard required by the law of the state and the ordinances of the city of New Orleans; but that said refusal was based upon other considerations entirely, and had for its object to insist upon and to maintain his rights and privileges of liberty and property secured and guarantied to him by the constitution of the state of Louisiana and of the United States, and in the sincere belief that the provisions and requirements of the said city ordinance were in direct violation thereof, as he was advised and informed was really the truth, and could be maintained. Relator avers that said ordinance imposes a fine and forfeiture for such refusal aforesaid, and that said portion of the ordinance in question is unconstitutional, null and void, for manifold reasons, which he pleaded specially, and set up in his defense to said charge and affidavit before the said recorder of the first recorder's court of New Orleans, which said pleas and defenses were overruled by him on the trial, and among which said pleas and defenses were the following: (1) That said ordinance is an unreasonable, odious, and oppressive regulation, and interferes with relator in a lawful and industrial pursuit, which is not injurious to the community, and disregards relator's constitutional privilege to be protected in the possession and enjoyment of his property. (2) That said ordinance compels relator to be a witness against himself in a criminal case, within the meaning of the fifth amendment of the United States constitution and article 6 of the Louisiana constitution. (3) Said ordinance is repugnant to the fourth amendment of the United States constitution and article 2 of the Louisiana state constitution, and violates relator's right to be secured in his person and effects against unreasonable searches and seizures. (4) It violates the state and federal constitutions by depriving relator of his liberty and property without due process of law, because it subjects him to fine and imprisonment for refusing to furnish evidence against himself, which is not due process of law, and compulsorily confiscates the merchandise (milk) in which he deals without compensation, and therefore also deprives relator of the equal protection of the laws. Const. La. arts. 6, 155; Const. U. S. Amend. 14. (5) The said ordinance violates the fourteenth amendment of the United States constitution for the foregoing and other apparent reasons. Relator represents that all said reasons in substance, and many others, also challenging the constitutionality of the said provision in the said ordinance, were by him specially pleaded in his behalf in his defense to such charge, all of which were overruled and set aside as of no avail, and relator was fined as stated, and thereupon relator appealed to said recorder to be allowed a suspensive appeal from said fine and sentence, and prayed that the same be made returnable to the supreme court, as the law

required, on furnishing bond and security in such amount, and conditioned as the law directs. That the said recorder refused to allow said appeal from his judgment and sentence, and assigned no reason for the said refusal other than that the people of the city of New Orleans looked to him to suppress the selling of adulterated milk within the city limits. That said recorder insisted that said fine of $25 should be immediately paid by relator, and, in default of payment of said fine, that relator should be immediately locked up and imprisoned, and therefore under duress; and protesting that said fine and sentence, and that said refusal to allow an appeal to the supreme court, and threat of immediate imprisonment, were unlawful; and, moreover, reserving all his rights to insist that said appeal should be allowed and granted as prayed for, relator paid to the clerk of the said first recorder's court, by direction of said recorder, the said fine, and obtained a receipt therefor as paid under protest, and annexed to his petition. Relator further averred that he was entitled to an appeal from the sentence of the recorder because the constitutionality of said ordinance and of the fine, penalty, and forfeiture imposed thereunder are directly called in question, and that there is no other remedy to enforce relator's right to said appeal except to apply to the supreme court for a writ of mandamus to command the said recorder to grant said appeal, and for a writ of certiorari, to the end that the said proceedings of the State of Louisiana v. Jean Duffard (relator) be certified to the supreme court in order that their validity be ascertained. That he had notified the recorder of his intention to apply for said writs. That he is entitled to a return of the said $25 which he has been compelled to pay under protest. He accordingly prayed that a writ of mandamus issue commanding the said recorder to allow relator a suspensive appeal from the sentence imposed by him against relator in the said proceedings, returnable to the supreme court according to law upon his furnishing bond and security according to law, and to return the said fine of $25, and for a writ of certiorari directing the said recorder to certify to the supreme court the said proceedings, in order that their validity may be ascertained, and that the writ of mandamus be made peremptory, and that said fine of $25 be returned to him, that he be allowed a suspensive appeal, and that the recorder be ordered to pay the cost of the proceedings.

Alternative writs having issued as prayed for, the recorder sent up the record as he was directed, and filed an answer, in which he declared that he considered the demand for appeal herein upon issues passed upon by the supreme court in several cases expressly or by implication as an abuse; that he declined, after imposing the fine, to grant any order releasing relator from custody,

and relator, in default of such order for release, paid the fine; that all of said proceedings took place May 24, 1893, and relator did not proceed for mandamus until May 26th, and respondent received no notice thereof until May 29th; that meanwhile, in due course, the amount paid by relator went into the city treasury as directed by law, and that respondent has no control and never had over the amount of said fine, and cannot be ordered to refund the same; that he acted in good faith, according to his best judgment, and in the public interest, as the same appeared to him to demand, and as a public officer, and he denies that he can be mulcted in the costs of this proceeding, even if the court should hold that he acted in any way erroneously. Wherefore, submitting himself to the orders of the court, he prays that he be not in any event condemned to pay the costs.

as

An examination of the record sent up shows that relator, charged with the violation of an ordinance of the city of New Orleans imposing as a penalty for its violation a fine of $25, and, in default of payment thereof, imprisonment in the parish prison for a period of not over 30 days, contested on his trial the constitutionality and legality of the ordinance and the fine and penalty therein imposed; that the issues so raised by him were determined against him; that he was convicted of the offense, and sentenced under the terms of the ordinance; that he applied at once for a suspensive appeal from this sentence, and that his application was refused. Relator was unquestionably entitled to an appeal, under article 81 of the constitution. The only reason signed by the respondent judge for his action is that in his opinion the issue passed upon by him had on several occasions been decided by this court, either expressly or by implication, adversely to relator's contentions, and that relator was, through his motion, seeking to abuse the right of appeal. If the relator was, under the constitution entitled to have the judgment of the court below reviewed by this court, that right could not be impaired by any belief which the judge of the recorder's court might have as to improper motives having prompted the party convicted to claim the exercise of the right. That was a matter with which he had nothing to do. So far as the question of appeal was concerned, it was no part of his duty to consider what this court had said or might say on the issues raised. State v. Davey, 37 La. Ann. 828. The course pursued by him was totally unwarranted. Relator's rights in the premises have not been prejudiced by the payment made by him of the fine imposed, under the circumstances of that payment. The respondent judge, in his answer, contends that, even though he may have erred in declining to grant the appeal, the costs of the present proceeding should not be thrown upon him, as he acted

in good faith, according to his best judgment, and in the public interest as the same appeared to him as a public officer. Although the action of the city judge in this matter was unjustifiable, reasons of public policy protect him from being made to pay the costs. They must be borne by the city of New Orleans. For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the alternative writ of mandamus herein issued be made peremptory; costs of this proceeding to be paid by the city of New Orleans.

1. The mortgagor is not an essential party to a third opposition by a mortgagee contesting the validity and rank of other mortgages, and an answer on his part is in the nature of an intervention, he not having been cited.

2. In case the same person is sued by same plaintiff, in two different courts, at one and the same time, for the same cause of action, and, without tendering the declinatory exception of litis pendens, answers both demands, the first judgment rendered by either court would be valid and executory against the party cast in the action.

3. The federal jurisprudence on this question is the same as our own.

4. The judgment of the court a qua having decreed the cancellation of one of the mortgages contested by third opponent, and this mortgagee not having appeared or filed an answer to the appeal, the debtor is without interest, and this court without jurisdiction to alter it. 5. The same is true of the purchaser who has appealed.

6. The judge having directed the sheriff to retain the proceeds of sale subject to the further order of court, and he having acknowledged service, and waived citation, the purchaser, agreeing to become the stakeholder in his stead, and consenting to pay such judgment as may be rendered against him for the proceeds, becomes thereby a party to the suit, and such an agreement is tantamount to a confession of payment, and no further citation is required.

(Syllabus by the Court.)

Appeal from district court, parish of St. James; Henry L. Duffel, Judge.

Action by Amant Bourgeois against Octave Jacobs to enforce a vendor's lien in the nature of a special mortgage. Julia Kunemann appeared, and filed a third opposition, and From other parties were made defendants. the judgment rendered, defendant Jacobs appeals. Affirmed.

Sims & Poche and E. N. Pugh, for appellant. Charles Louque, for appellee Julia Kunemann.

WATKINS, J. On the 7th of March, 1878, Octave Jacobs became the purchaser of a sugar plantation in the parish of St. James, for the sum of $42,300, and of this he paid

$15,000 in cash, and for the residue he issued a series of promissory notes, payable to his own order, and same were by himself indorsed; and, to secure the same, he stipulated and consented a special mortgage, and recognized the vendor's lien on the property. Amongst others, there were three notes,-one for $3,850, one for $1,100, and one for $550,all of which matured on the 1st of February, 1889; and there was a stipulation in the act that the mortgage securing the payment of those three notes should have preference and priority over the security it gave to all others; in other words, those three notes were concurrently secured by a first mortgage, and all others by a second mortgage. On the 10th of February, 1888, Amant Bourgeois procured an order of seizure and sale against the mortgaged property, in the enforcement and collection of the note of $550 and interest, as secured by said first mortgage and vendor's lien. On the 12th of March, 1888, during the pendency of those executory proceedings, Mrs. Julia Kunemann filed a third opposition, on the grounds, substantially, viz: That she was the holder and owner of another of the series of notes which were issued by Octave Jacobs, for $8,000, made payable on the 2d of March, 1882, with 8 per cent. per annum interest from date, and secured by the second mortgage contained in the act of sale; that upon the mortgage certificate there appears mention of a mortgage in favor of the Consolidated Association of the Planters of Louisiana, to secure the payment of the unpaid portion of the stock of said association, amounting to $40,000; that the shareholders have long since paid in, on calls, the sum of $612,000, which is and was more than sufficient to meet and discharge the whole of the indebtedness of said bank to its bondholders, or to the state as their subrogees, and no other debt is now due; that same was paid to the officers of the state having the control of the affairs of the bank, and is a full discharge and satisfaction of all claims which can be made by the state or stockholders, and the said mortgage should be canceled and erased. She prays to be paid from the proceeds of sale, by preference over the seizing creditor, the full amount of her note, with attorney's fees, interest, and cost, and that the sheriff be ordered to retain said sums, subject to the further order of the court; and it was so ordered. The receiver of the Consolidated Association was cited in March, and the seizing creditor, in April, 1888; and on the 26th of April, 1888, Octave Jacobs filed an answer, and denied that any interest had run or accrued on the note held by opponent since the 2d of March, 1882, and averred that the act of sale to him contained a stipulation to that effect. He further avers that in a suit entitled "Widow Caesar Kunemann v. Octave Jacobs" the plaintiff made claim for interest on said $8,000 note, from and after the 1st of March. 1882; and, upon a trial contradictorily had, judgment was pro

He

nounced in his favor, rejecting her demand, and decreeing that, under the stipulations contained in said act of sale, "no interest could be exacted pending the liquidation of said association." He avers, further, that the affairs of said association have not yet been liquidated, and that neither interest nor capital of said debt can be collected, because same are not due, for that reason; and he pleads the said stipulation and covenant in said act of sale and mortgage and said judgment as res judicata, and as evidencing the nonmaturity of said debt and interest. prays for the rejection of plaintiff's demand in toto. The seizing creditor answers that his claim, under which the property was sent to sale, is entitled to be paid, by preference over that of opponent, from the proceeds of sale, the capital and interest of his note, attorney's fees, and cost. The receiver filed an exception to the jurisdiction of the court, and, this being overruled, he filed no answer, and took no further part in the proceedings. The judgment confirmed and made final the judgment by default taken against the Consolidated Association, and directed and decreed the recorder of mortgages to cancel and erase from the books of his office any and all mortgages and assumptions in favor of the same; overruled the various pleas of the defendant Octave Jacobs, and decreed the opponent entitled to be paid the full amount of her demand, capital and interest; ordered that Ellen Mason, wife of Octave Jacobs, purchaser at sheriff's sale of the mortgaged property, should, under her agreement to keep the proceeds in lieu of the sheriff, pay the same (1) to Amant Bourgeois, the amount of his debt, with interest, cost, etc.; and (2) to Julia Kunemann, opponent, the amount of her debt, interest, attorney's fees, and cost; and directing the cancellation of the mortgages and liens securing same. From this judgment Octave Jacobs appeals, and neither of the appellees has filed an answer, or requests any amendment of the decree.

Under this state of facts, it is manifest that no alteration can be made in the judgment in respect to any one of the appellees. This court has no jurisdiction or power to do so. Inasmuch as the judge a quo found and decided that the stockholders of the Consolidated Association and the state had been fully satisfied, adjudged and decreed that its mortgage should be canceled and erased, and this decree remains unappealed from by the association, we are at a loss to perceive on what foundation Jacobs' right of appeal is predicated. His answer did not and could not deny the existence of the notes he had executed, and the mortgage he consented to secure their payment. It only asserted that the demand of opponent was premature, because the payment of the note she held had been procrastinated by its terms, and a covenant in the act of sale, until the affairs of the Consolidated Association should have been