321; Henderson v. Insurance Co., 72 Ala. 32; Heyward v. Manufacturing Co., (Ala.) 11 South. 837. davit and bond with said Creen; that the | Eng. Enc. Law, 1094; Wap. Attachm. 24, said Creen declined and refused to issue said writ of garnishment. Whereupon, the petitioner prayed that a writ of mandamus be awarded, requiring the said Creen to issue the writ of garnishment against the garnishees named, as required by the statute. For answer to said petition the said Creen said that while the petitioner filed affidavit and bond, which was attached to the petition, the petitioner did not make and file an affidavit required by the act of the general assembly of Alabama, approved February 21, 1893, to the effect viz. that the amount sought to be recovered was for necessary bread and meat for the support of the defendant and his family, or for house rent. Upon this answer, as shown, the judge of the city court refused to grant the writ of mandamus. Hence, this appeal. The facts of the second case, No. 33, are substantially the same, with the exception that the debt which was the foundation of the suit by said Adamıs against Baker before Creen was contracted on May 25, 1893, by the execution of a promissory note waiving his right of exemptions, and made payable one day after date. The allegations of the complaint were substantially the same as those contained in case No. 32. The said James F. Creen demurred to the petition on the grounds that said petition shows on its face that petitioner did not make the affidavit required by law of a party desiring to sue out a writ of garnishment, and that the claim sought to be made was for necessary bread and meat for the support of the defendant and his family, or for house rent. The court sustained these demurrers, and refused petitioner's application for mandamus. Hence, this appeal. Thos. W. Coleman, Jr., and Caldwell, Johnson & Acker, for appellant. James F. Creen, in pro. per. HARALSON, J. We have before us the construction of the act of the general assembly approved February 21, 1893, (Acts 189293, p. 886,) entitled "An act to regulate the issue of garnishments and proceedings therein in the counties of Jefferson, Dallas, Calhoun, Escambia and Cleburne." 1. It may be properly premised that everywhere the remedy by garnishment is wholly dependent on statutory authorization, and it must be pursued, if at all, under statutory requisites. The legislature may allow the remedy, within constitutional limitations, in the circuit and city or chancery courts, or in either, and not in the justices' courts, or vice versa, and for different amounts, and on different conditions and limitations in the one and the other, or it may withhold the remedy altogether from any court; and no judicial complaint can be made against a statute because of the conferring or withholding the remedy, or for its limitations and restrictions if conferred. 8 Amer. & 2. As to suits in justices' courts, the act is general, where the plaintiff desires to sue out process of garnishment, whether the contract on which the suit is based was entered into before or after the passage of the act, and it curtails the right by garnishment, in those courts, to cases where the contracts sued on have for their consideration bread and meat-whatever those words include for the support of the defendant and his family, or for house rent. The remedy, therefore, in such courts, as for all contracts entered into before the act went into effect, which were not based on bread and meat for the support of the defendant and his family, or for house rent, is destroyed altogether, and for such of them as did have such considerations the remedy is changed and im, paired. The decisions of this court heretofore rendered, and those of the United States supreme court, referred to in those decisions, leave no escape from the conclusion that this act, as for all contracts entered into before it took effect, by its terms, violates in the most palpable manner section 56, art. 4, of our constitution, which provides that "there can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement," and is therefore void. Edwards v. Williamson, 70 Ala. 145; Osborn v. Wall-Paper Co., (Ala.) 13 South. 777. 3. The latter part of section 1 of said act provides: "And it shall be unlawful for any justice of the peace, or notary public, to issue a garnishment on any claim when exemptions have not been waived in writing, and that such waiver shall only be given for necessary bread and meat for support of defendant and his family, or for house rent." This clause cannot be fairly construed, as it has been suggested it may be, as a restraint upon the exercise of the right to waive one's exemptions, secured by the constitution; but it was intended, and must be held, as a limitation only on the right of garnishment in justices' courts to cases where the defendant has waived his exemptions, and the consideration of the contract was bread and meat or house rent. In case No. 33 the contract sued on was a note for three dollars dated May 25, 1893, payable by defendant one day after date, which included a waiver of exemptions. Garnishment was sought to be sued out. against a debtor of defendant in aid of the action against him. The petitioner, plaintiff in the justice's court, failed to comply with the provisions of said act in instituting his garnishment proceeding, and the justice properly refused to issue it. Mandamus was rightly denied by the judge of the city court. Mandamus denied. In case No. 32 the cause of action was a note for $10, payable to plaintiff by defend- | ant on demand, dated 23d January, 1893, which note contains a waiver of exemptions as to personal property. As in the other case, garnishment was sought in aid of the suit against defendant, and it is not disputed that the requirements of the general law on the subject to procure a writ of garnishment were complied with, but the justice refused to grant it. Under our ruling, the requirements of the act in question did not apply in this case, and the justice should have issued the writ. We do not deem it advisable or proper to consider questions urged on us in briefs of counsel, which may arise under this law, but do not arise in these cases. Mandamus awarded. ALABAMA G. S. R. CO. v. EICHOFER. (Supreme Court of Alabama. Nov. 28, 1893.) NONDELIVERY OF ACTION AGAINST CARRIER 1. The right of action for the breach by a common carrier of a contract to deliver goods is, under Code, § 2615, not barred for six years. 2. There was evidence that goods shipped to New York over defendant railroad arrived there within two weeks, and were properly stored there for three years, ready for delivery, and that the consignee did not appear to receive them; that the connecting carrier unsuccessfully tried to find the consignee; and that finally the property was sold for charges. There was, on the other hand, evidence that the goods did not reach New York within six weeks, that defendant's agent was unable to trace them five months after their shipment, and that repeated inquiries were made for the goods at the connecting carrier's depots in New York within two months after the shipment. Defendant had agreed to deliver the goods in New York. Held, that the question of nondelivery was for the jury. Appeal from circuit court, Jefferson county; James J. Banks, Judge. Action by C. Eichofer against the Alabama Great Southern Railroad Company to recover for its failure to deliver certain goods in New York. From a judgment for plaintiff, defendant appeals. Affirmed. The complaint was in compliance with form No. 15, p. 793, of the Code of 1886. Said goods were shipped July 19, 1888, and the present suit was commenced November 12, 1891. The defendant issued a through bill of lading to the plaintiff; did not limit its liability over its own road, but agreed to deliver the goods mentioned in said bill of lading in the city of New York. The defendant pleaded the general issue by its first and second pleas, and by the third plea the statute of limitations of one year. The defendant demurred to the third plea on the ground that it presented no defense to this action. The court sustained this demurrer, and the defendant excepted. The evidence in behalf of the plaintiff and the defendant is sufficiently shown in the opinion. Upon the introduction of all the evidence the defendant requested the court to give the general affirma tive charge in its behalf, and duly excepted to the refusal to give said charge. Upon the return of the verdict for the plaintiff, and the rendition of judgment thereon, the defendant moved for a new trial on the grounds that the verdict of the jury was contrary to the evidence; that it was contrary to the charge of the court, and contrary to the law of the case; that the verdict was contrary to law because the suit was for the failure to deliver the goods in New York, not for a delay in delivery; and that the evidence showed that the goods were delivered in New York, and on the ground that the court refused to give the general charge requested by the defendant. The court overruled this motion, and the defendant duly excepted. The defendant now appeals, and assigns as error the sustaining of the demurrer to the third plea, the court's refusal to give the general charge in favor of the defendant, the court's overruling the defendant's motion for a new trial, and its refusal to grant a new trial. A. G. Smith, for appellant. Richard H. Fries, for appellee. MCCLELLAN, J. This is an action ex contractu for the nondelivery of goods by a common carrier in violation of the contract of carriage. It was well brought within six years, under section 2615 of the Code, and the demurrer to defendant's plea of the statute of limitations of one year (Code, § 2619) was properly sustained. The shipment was made over defendant's line at Birmingham, Ala., to New York, on July 19, 1888. Defendant's evidence goes to show that the goods arrived at the depot of the Pennsylvania Railway in New York on August 11, 1888, and thence on, for three years, were properly stored there ready for delivery to the consignee, but that the consignee did not appear to receive them; that reasonable efforts were made on the part of the delivering carrier to find the consignee, but without success; and that finally, on October 6, 1891, the property was sent to Philadelphia to be sold for freight charges, etc. There was, on the other hand, evidence from which the jury might have inferred that the goods were not received and stored in New York on August 11, 1888, or for months after that time. It was shown, for example, that the defendant's agent in Birmingham, though making repeated efforts to trace and find the property, had not done so on the 15th December, 1888, nearly five months after the shipment, and it is hardly reasonable to suppose that his efforts to this end would, for so long, have been abortive, had the goods really been in the connecting carrier's depot at the point of final delivery. There was testimony, too, that inquiries for the goods during September and October, 1888, were made by or on in behalf of the consignee at all of the delivering carrier's depots in New York city, or at least at all of its depots along North river, where the depot in which defendant's witnesses say the consignment was received and stored was situated. This evidence upon either hand presented, as an issue of fact to be determined by the jury, the inquiry whether the goods were ever received at the New York depots of the delivering carrier at all or not, or at least whether they were so received within any reasonable time after their shipment from Birmingham; and if the jury had found that they did not reach New York at all, or not till the lapse of from two to five months after the shipment, as they had a right to find, the nondelivery averred in the complaint would have been established, and plaintiff's case made out. The existence of this right on the part of the jury, of course, demonstrates the propriety of the trial court's refusal to give the affirmative charge for the defendant. And we are not prepared to say that the verdict of the jury, in line with the tendencies of plaintiff's evidence, was so clearly against the weight of the whole evidence, or so lacking in the support of evidence, as to have justified the court below in granting a new trial. The judgment of the circuit court is affirmed. STATE ex rel. MARX v. JUDGE OF THIRD In case a party makes application for a respite in the court of one parish, and, subsequently to same being granted, he permanently changes his domicile to another parish, it is competent for a creditor, complaining of his failure to comply with the award, to proceed by rule taken in the court of first instance to compel him to make a surrender under the insolvent law. Act 134 of 1888, amending Rev. Civil Code, art. 3093, is ample warrant for thus proceeding. (Syllabus by the Court.) Original application in the name of the state at the relation of Jacob Marx for writ of prohibition to the judge of the third Judicial district court for the parish of Union. Denied. Dawkins & Dawkins and Lazarus, Moore & Lemle, for relator. Everett & Thomas, for respondent. WATKINS, J. Relator alleges that about the 1st of April, 1892, while he was domiciled in the parish of Union, he filed a petition in the respondent's court, petitioning his creditors for respite, and that same was subsequently granted. That subsequently he permanently removed from the parish of Union to the parish of Ouachita, and there established his permanent domicile, to which he had intermediately removed his property and effects. That on the 23d of August, 1893,-subsequent to the relator's change of That domicile,-one of his creditors appeared, and filed an opposition in the original respite proceedings, alleging the relator's default and failure to make the first payment contemplated, and prayed a rule and judgment condemning him to make a surrender under the insolvent laws of the state. he appeared and excepted to the jurisdiction of the court ratione personae, because of his domicile being in the parish of Ouachita; and same was by the court overruled, and the writ and relief applied for. The respondent judge concedes the facts to be as stated, but denies their sufficiency to justify the maintenance of the writ. Relator's proceedings were predicated upon the provisions of section 1 of Act 134 of 1888, amending Rev. Civil Code, art. 3093, which are as follows, viz.: "And if any debtor having obtained a respite shall fail or neglect to furnish, when required by order of court, the security herein provided for or shall fail, or neglect to make payment to his respective creditors, according to the terms of said respite, any creditor thereby interested may proceed summarily against such debtor by rule, taken in the respite proceedings, to show cause why the judgment decreeing such respite should not be vacated and annulled, and why the debtor should not, forthwith, make a cession of his property to his creditors." The precepts of that statute have been closely followed, and there has been suggested no unconstitutionality of the law, which is purely i remedial in character. It is a well-settled precept of jurisprudence, as it is a wellrecognized principle of law, that judicial proceedings once regularly inaugurated cannot be annihilated by any act of the parties to judgments and decrees therein rendered. On this question the principles announced and the authorities collated in Heirs of McGehee v. McGehee, 41 La. Ann. 657, 6 South. 253, are quite instructive. There is no rea son to doubt the force or applicability of the legislative act authorizing the creditors' rule to be taken in the original probate proceedings, irrespective of the domicile of the relator in a different parish, acquired subsequent to their institution; and therefore the prayer of the relator should be refused, and it is ordered and decreed that the restraining order herein granted be set aside, and a writ of prohibition be refused, at the relator's cost. (45 La. Ann.) WILLIAMS et al. v. JUDGE OF EIGHTEENTH JUDICIAL DISTRICT COURT FOR LA FOURCHE PARISH. (No. 11,318.) (Supreme Court of Louisiana. Nov. 20, 1893.) CONDEMNATION PROCEEDINGS PROVINCE OF COURT-TRIAL IN VACATION-CERTIORARI. 1. Private property cannot be taken unless for purposes of public utility. What constitutes public utility and public purposes is for the courts to determine. 2. Under Act No. 132 of 1890, expropriation suits may be tried in vacation. 3. Where the proceedings are not void on their face, and show no arbitrary action on the part of the respondent judge, the writ of certiorari will be refused. (Syllabus by the Court.) Original application by C. C. Williams and others for writs of certiorari and prohibition to the judge of the eighteenth judicial district court for La Fourche parish. Denied. Clay Knobloch & Son and W. P. Martin, for relators. Beattie & Beattie, for respondent. PARLANGE, J. Relators allege that seven suits for the expropriation of lands belonging to them have been brought against them by the Laurel Valley & Rousseau Station Railroad Company, "a pretended corporation, claiming to have been organized under the laws of this state for public purposes, to wit, to carry freight and passengers from the Laurel Valley plantation, in La Fourche parish, to and from Rousseau station, a flag station on the Southern Pacific Railroad;" that the district judge indorsed on each petition an order allowing the same to be filed, and directing the clerk of court to give notice, according to law, to the owners of the lands described in the petition; that a copy of said order was served on each of said relators, and that, if any other order exists, the same has not been served on relators; that citations were served on them to appear at chambers in the town of Thibodeaux on a specified day, said citations stating that the cases were to be tried then and there before a jury, but that no hour was fixed in said citations, nor was any order of court served upon relators showing that the trial of the cases had been fixed for said day, and was to be had at chambers, and that the cases were to be tried by a jury; that on the day specified relators appeared before the court at chambers simply to accept and protest that the plaintiff in said suits is not a corporation organized for public purposes, but is a combination of individuals, whose sole object is to foster the private ends of two certain persons named, who own jointly two sugar plantations in Lafourche parish, about five miles distant from one another, and who wish to transport the sugar cane grown on one of the plantations to the refinery situated on the other; that relators protested against the trial out of regular term time of the issue raised by them, and claimed the right to issue commissions to take the testimony of witnesses residing out of the parish, for the purpose of proving relators' contention; that the district judge overruled the protest, refused to allow the commissions to issue, and insisted on proceeding at chambers to the trial of said exception and of the merits of said causes. Relators pray for writs of certiorari and prohibition, and that all said | The proceedings at chambers be set aside. district judge answers that said suits were filed in court on June 15, 1893, after he had indorsed on the petitions therein an order directing the clerk of court to file the same, and to give notice to the owners of the different parcels of land; that on July 7, 1893, under section 1480, Rev. St., at the courthouse, in the room appropriated to the regular sessions of the court, the causes came up for trial in chambers, the court not then being in term time; that relators excepted that the plaintiff in the suits was not a public corporation, but a private enterprise, aud that relators were entitled to a delay, to take out commissions to prove this fact, and that the issue could not be tried at chambers; that, after argument, respondent ruled that the issue could be tried at chambers; that he refused the delay asked for, because the facts desired to be proved by nonresident witnesses could be as easily and as conveniently proved by witnesses residing in the parish; but he granted time to procure the attendance of the latter. The railroad company answers that it is a corporation duly established under the law of the state. It declares itself to be a common carrier, and its roadbed a public highway, under articles 243 and 244 of the constitution. It avers that it was lawfully proceeding to expropriate the lands of different persons to obtain its needed right of way; that the charge that it is a private concern is untrue, as will be conclusively proved on the trial of the suits; that it has so far been unable to introduce its evidence on the issue raised; that the matter was being heard on relators' exceptions, when relators, who had not concluded their own testimony, by application to this court for writs of certiorari and prohibition, prevented the respondent corporation from making any proof; that all of said suits are appealable to this court; that the capital stock of said corporation amounts to $15,000, and that all of its rights will be destroyed unless it can expropriate the lands between its termini; that the issuance of the orders from this court has damaged said corporation in the sum of $2,500, which it prays may be awarded to it, if it is within the power of this court to do so. The president of said corporation has filed a sworn statement in this court that the interest of the corporation in each of said suits amounts to $15,000, the full value of its stock. The property of the citizen cannot be taken from him "unless for purposes of public utility." "Private property shall not be taken nor damaged for public purposes without just and adequate compensation being first made." Const. arts. 155, 156; Civil Code, arts. 497, 2626, et seq. Article 11 of the constitution declares that "all courts shall be open and every person for injury done him in his rights, lands, goods, person and reputation, shall have adequate remedy by due process of law and justice administered with out denial or unreasonable delay." In the case of Railway Co. v. Gay, 32 La. Ann. 474, this court said: "To entitle the public to take private property, two things are necessary: First, the interest of the public must require it; and, second, adequate compensation must be made." Relators have the undeniable right to contest in the courts with the railroad company the question whether its purpose is one of public utility, and whether the use to which it seeks to put relators' property is a public use. What constitutes public utility and public purposes is for the courts to determine. Lecoul v. Police Jury, 20 La. Ann. 308; Lewis, Em. Dom. § 148. "Where, under a general railroad law, a road is built for private use, its operation may be enjoined at the suit of an individual, or the franchise annulled at the suit of the people." Id. § 170. But it does not follow that relators are entitled to the relief they ask. Since the decision of this court in the case of Baltimore & O. Tel. Co. v. Louisiana W. R. Co., 39 La. Ann. 659, 2 South. 67, in which it was held that suits for the expropriation of property could not be tried at chambers. Act 132 of 1890 has been passed, providing that whenever any proceeding is instituted under sections 1479-1481 of the Revised Statutes for the expropriation of lands for public purposes, the suit may be tried in vacation. Relators contend that Act No. 132 of 1890 does not apply to the suits brought against them, because they are suits to expropriate their lands for private purposes; but this contention is without force. The suits, whether well founded or not, are within the description of the suits which the act makes triable in vacation, and the district judge had the right to try them at chambers, as also the issue raised by relators. This court has held that it would not issue the writ of certiorari unless the proceedings are void on their face. The proceedings in this matter are not void. There is no arbitrary action here which entitles relators to the writ. The jurisdic tion of the district court is clear, and the writ of prohibition does not lie. We have no occasion, in these proceedings, to review the refusal of the district judge to allow the commissions to issue to take the testimony of nonresident witnesses, or the correctness of his rulings during the hearing of the issue raised by relators, to which rulings they reserved bills of exceptions. Such an inquiry would pertain to a court in the exercise of its appellate powers. The district judge gave relators timely notice of the proceedings. It was fully effectual in causing relators to appear in ample time to make any defense they might have. Relators' counsel state in their brief that they convinced the district judge that the issue raised was a judicial question. The district judge ruled, however, that the issue was triable at chambers, and proceeded to try the same. While he refused the delay for the issuance of the commissions, he granted time to relators to summon their witnesses. These were heard during two days, and until the proceedings were arrested by the order of this court. Relators seem to have interrupted the hearing of their own evidence. The railroad company has not yet had an opportunity to produce evidence. It may be that relators will succeed in maintaining their position before the district judge. Three of the cases are conceded by relators to be appealable to the court of appeals. The railroad company urges that all the cases are appealable to this court, and that any error in them can be remedied here on appeal. However this may be, it is clear that relators are not entitled to the writs. Application dismissed at relators' costs. (45 La. Ann.) STATE ex rel. SUTCLIFFE v. MONROE, Judge. (No. 11,317.) (Supreme Court of Louisiana. Nov. 20, 1893.) CERTIORARI-REMEDY BY APPEAL-FORTHCOMING BOND. 1. The remedy is by appeal, and not by certiorari and prohibition. 2. If the plaintiff does not choose to furnish a bond of release after 10 days have elapsed subsequent to the sequestration of the property, the defendant is not precluded from the right to bond. 3. The right to bond property sequestered is not suspended by a suspensive appeal from a judgment in which that right is not involved. (Syllabus by the Court.) Original application in the name of the state at the relation of William W. Sutcliffe for writs of certiorari and prohibition to Francis A. Monroe, judge of the civil district court for the parish of Orleans, and others. Denied. Girault Farrar, Henry J. De Lesdernier, Joseph Brewer, and Horace L. Dufour, for relator. Carroll & Carroll, for respondent. BREAUX, J. The testamentary executors and forced heirs of the late William Stuart are plaintiffs in a case against William W. Sutcliffe et al., in which they sued for and obtained a sequestration of a certain policy of insurance, No. 960, issued by the Mutual Life Insurance Company of New York. The case was tried, and a final judgment was rendered by the respondent judge, which was signed on the 9th day of March, 1893, awarding to the defendants, Sutcliffe et al., the sum of $5,000, with interest at 6 per cent. thereon, from the proceeds of the sequestered policy. On the 17th day of March, 1893, the plaintiffs in that case took a suspensive appeal to this court, which is now pending for decision. On the 20th of June, 1893, the defendant Sutcliffe applied to bond the property sequestered, to which the defendant in rule objected on the ground that a suspensive appeal in effect limits the jurisdiction of the court a qua to tests of solvency of the surety, |
