Sattler & Co. vs. Marino. self the necessaries of life, without drawing a cent from his salary, without incurring any liability toward the employer, at whose table he took his meals, in whose bed he slept. This is incredible. The fact that-after the sale of the twentieth of January-Salvador hastened to buy in his own name, for what he calls his store, was only an additional precaution resorted to by him to manufacture and obtain evidence, to conceal a manifest simulation. Be this as it may, no insolvent merchant can sell to his insolvent clerk, for the latter's wages, and at twelve, eighteen, twenty-four and thirty months' credit, a stock of goods valued by themselves at more than four times the amount of the wages, and the price of which both the merchant and the clerk know to be yet due to those who furnished the goods. Such a sale is, beyond a doubt, a fraudulent simulation. Were it simulated but in part, how could we distinguish its real and unreal parts, and decide which of the contents of a store sold as an entirety, should pass to one who did not intend to buy, and which should be considered as still belonging to one who did not intend to sell. The fraud, in this instance, does not merely consist in the endeavor to give or obtain a preference over other creditors, but to place out of those creditors' reach the property which is their common pledge, and that fraud tainted and nullified, at its very inception, the whole of a contract, no branch of which ever had a legal existence. The judgment appealed from is affirmed with costs. No. 6984. JOSHUA C. THOMS VS. B. W. SEWELL ET AL. In a suit for damages on the ground of a wrongful sequestration of land, the judgment rendered in a former suit between the same parties, involving the ownership of the land, can not be pleaded as res adjudicata. The objects aimed at, and the causes of action in the two suits are entirely different. PPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, special judge. W. F. Kernan for plaintiff and appellant. Wedge & Moore for defendant. The opinion of the court was delivered by SPENCER, J. In 1869 J. C. Thoms sued B. W. Sewell and Mrs. Kennedy to recover and be decreed owner of a tract of land, and to annul a sale thereof made by Mrs. Kennedy to Sewell as fraudulent. Pending this suit, Sewell commenced suit against Thoms, claiming ownership of this same land, and had the same sequestered. Thoms vs. Sewell et al. Thoms filed a plea of lis pendens to Sewell's suit, averring that "all the matters therein alleged are pending between defendant and plaintiff, in the case of Thoms vs. Sewell and Mrs. Kennedy." The case of Thoms vs. Sewell and Kennedy was finally decided by this court in favor of Thoms. See 24 An. 209. He was decreed owner of the land. Subsequent to this decision, on the fourteenth of June, 1870, Sewell's counsel filed in his suit against Thoms a written consent that the plea of lis pendens be sustained and the suit dismissed-which was accordingly done. Thereupon, Thoms brought the present suit on the sequestration bond given in Sewell vs. Thoms for damages. The defendant pleads the judgment of this court in Thoms vs. Sewell and Kennedy in bar and as res adjudicata. The court below sustained the plea, and plaintiff appeals. It is difficult to see by what process of reasoning the court below reached such a conclusion. There is but one of the elements of res adjudicata present, to wit: identity of the parties to the two suits. The objects of the two demands and the causes of action are wholly different. In the suit of Thoms vs. Sewell and Kennedy the cause of action was ownership, and its object the land. In the present suit the cause of the action is an alleged wrong by seizure of property, and its object money. In the suit of Thoms vs. Sewell and Kennedy, plaintiff did not and could not demand damages for a sequestration which was not levied until afterward in another suit. He could not have legally claimed it by way of reconvention even, in this other suit of Sewell vs. Thoms, as both parties lived in the same parish. 24 A. 208; 12 A. 114; 17 L. 176; 10 A. 10; 3 A. 588. Defendant's counsel insists, however, if there is not technically res adjudicata plaintiff is at least estopped by his assertion in his plea of lis pendens, that all the matters alleged in Sewell's suit against him were involved in his suit against Sewell and Kennedy. That statement was legally true, for the thing in dispute in both cases was the land, and we are at a loss to see how that averment now estops plaintiff from claiming what he could only claim after those suits had terminated. The judgment appealed from is erroneous, and it is ordered, adjudged, and decreed that the same be set aside and reversed, and that defendant's plea of res adjudicata and estoppel be overruled, and that this cause be remanded to be proceeded with according to law; defendant and appellee paying costs of appeal. McKnight vs. Parish of Grant. No. 6993. HOWARD MCKNIGHT VS. THE PARISH OF GRANT. Land which has been donated to a parish and dedicated to public use, can not be seized for any debt due by the parish. The contractor who furnishes the material and builds a jail for a parish, under a contract with the police jury of the parish, has the mechanics' lien and privilege on the jail, to secure the payment of what is due him under the contract. A PPEAL from the Ninth Judicial District Court, parish of Grant. R. A. Hunter for plaintiff and appellant. A. Cazabat, Parish Attorney, for defendant. SPENCER, J. The police jury of the parish of Grant by ordinance appointed a committee to contract for building a public jail at Colfax; made the necessary appropriation, and levied a tax of two mills to pay for the same. The contract was made with plaintiff, who undertook to furnish all the material and build the jail for $1000, payable in cash when completed. There is no dispute that he fully complied with his contract. The parish authorities received the building, and have ever since occupied it. Plaintiff duly recorded his contract. Only $155 have been paid him, and as it seems no effort is made to collect the tax, or if collected as it has not been paid to him, he brings this suit for the balance due him, and claims the mechanics' and builders' lien on the jail and on one acre of ground on which it is situated, under article 3249 of the Civil Code. The district judge gave him a judgment for the amount due, but refused to recognize his lien, and plaintiff appeals. It seems that the land on which the jail is built was expressly bought and donated to the parish, for the purpose of a jail lot. We have lately held, in the case of Parish Plaquemines vs. Foulhouze, that under such circumstances the land has been dedicated to public uses and can not be seized for debts of the parish. That it does not constitute property of the parish in the ordinary acceptation of that term, being out of commerce and belonging to the public. But because the soil upon which a building is erected can not be sold to pay the cost of its erection, it by no means follows that the building itself may not be. The 3249th article of the C. C. gives the lien "upon the building and upon the lot of ground;" and then proceeds to provide for the case where the lot of ground belongs to another than the party having the work done, and where, therefore, it is not alienable in satisfaction of the debt. We think the spirit of this article requires us to recognize the lien on the building. It would be 30 361 51 1386 McKnight vs. Parish of Grant. monstrous to allow the parish to appropriate another man's material and labor in the form of a house, and refuse to pay him because the land on which it is built is inalienable, and out of commerce. The builder in such a case as this may be in some sort assimilated to a vendor of the materials and labor represented in the house. Good conscience forbids that he be denied the right to subject the building to his debt. It is therefore ordered, adjudged, and decreed that the judgment appealed from be and is so amended as to recognize and render execu tory the building lien claimed by plaintiff on and upon the jail building of the parish of Grant, at Colfax, and that the same be seized and sold to satisfy plaintiff's judgment. That in other respects the judgment appealed from be affirmed, and that defendant pay the costs of appeal. 30 362 47 1528 30 362 51 1413 30 3621 e115 64 No. 6541. THE STATE VS. JUDGE SPENCER. Dying declarations made by a deceased person under a sense of immediate and impending death are admissible in evidence. A PPEAL from the Thirteenth Judicial District Court, parish of Tensas. H. N. Ogden, Attorney General, for the State. Griffith & Brown for defendant. The opinion of the court was delivered by SPENCER, J. The defendant was convicted of murder without capital punishment. The sole question presented is as to the admissibility of the dying declarations of the deceased. The bill of exceptions discloses that the deceased was shot about nine o'clock at night. The witness details the facts as follows: "As the shot was fired, the deceased fell and cried out, 'Oh Lord! I am shot!' Being asked where, he replied, 'In the stomach.' His bowels were protruding from his abdomen, he was too weak to help himself, and his wife and witness took hold of him and put him to bed. He asked witness to pour water on his wound, which witness did. After he had been placed in bed and after he had asked witness to pour water on his wounds, he said the accused, Judge Spencer, had shot him. Immediately after saying this, witness said to him, Gilbert you had better pray.' He told witness to pray for him; and immediately afterward he called his children around his bedside and bade them goodbye, and said to his wife take care of the children as best she could. He then became speechless and died at five minutes past twelve o'clock." State vs. Spencer. Dying declarations are admissible only when it appears that they were made under a sense of immediate and impending death. The actions and declarations of the deceased must manifest his consciousness of and belief in speedy dissolution. Greenleaf, vol. 1, sec. 158. Archbold, vol. 1, p. 140. We think the condition of the deceased at the time of and his actions and declarations accompanying and immediately following his statement that the defendant had shot him bring this case within the rule, and that the judge a quo did not err in admitting them as declarations made in the presence and with a full sense of impending death. The judgment appealed from is affirmed. No. 6870. VICTOR LAURENT VS. A. J. BEELMAN AND F. M. BEELMAN. A judgment rendered against a party who was not cited, and who has not put in an A final judgment on default, signed by the judge in chambers, is absolutely void. A void judgment can not be revived. PPEAL from the Fourth Judicial District Court, parish of St. Charles. A Marks, J. Breaux, Fenner & Hall for plaintiffs and appellants. J. D. Augustin for defendants. The opinion of the court was delivered by SPENCER, J. On the thirteenth of March, 1867, plaintiff filed a suit claiming judgment against the defendants separately as joint indorsers. of a note. He prayed for citation of each defendant, as usual, and that each of them be condemned to pay him one half the note. A citation issued, addressed to “F. M. Beelman, Parish of St. Charles." The sheriff's return states; "Received copies of the within summons and petition accompanying, on the thirteenth of March, 1867, and served the same on A. J. Beelman and F. M. Beelman, personally," etc. Judgment by default was confirmed against both defendants, and "signed on the tenth of August, 1867, at chambers.” On the tenth of July, 1877, plaintiff filed petition to revive this judgment, citing both defendants personally to show cause, etc. A. J. Beelman appeared and pleaded as cause against revival that the so-called judgment was rendered on default without his having ever been cited, and was signed at chambers and not read and signed in open 30 363 48 907 30 363 50 440 50 441 |