years, the sum of more than $50,000, for which no voucher appears, and the reason for which expense is to this date a secret, and the truth concerning which is not exposed, and not known to the shareholders, which information, if it had been afforded to petitioner at the time he made the demands aforesaid, would have determined petitioner to sell his shares of stock at the then ruling prices aforesaid, and would have prevented him from buying, and determined him not to buy, additional shares as aforesaid, and would have saved to petitioner the consequent loss and damage resulting to him from the fall in prices since that date, as herein before set forth; that there are other facts and additional information acquired by❘ petitioner from the inspection and examination of the books since the same had been allowed by him under the judgment of this court, which existed in the books and was obtainable from the books at the dates and times herein before set out, but the exercise of his right to inspect and examine the books, which was denied him; that such facts and information, if then and there allowed petitioner, or obtained by him, would have determined him to sell his shares of stock, and he could and he would have so sold them for the price of $129 per share, of the par value of $100, and for which shares he cannot now obtain a greater price than $112 per share, of the par value of $100; that the denial of the right to inspect and examine the books aforesaid has caused petitioner further damage, in expenses of a lawsuit herein before referred to, in costs of court, and attorney's fees, in the sum of more than $300, and that the acts and conduct of the said Adolphe H. Sieward in denying petitioner the right to inspect and examine the books aforesaid has caused petitioner damage, in the manner and form hereln set out, in the sum of $5,800. He subsequently filed a supplemental and amended petition, in which he reiterated all of the allegations of his original petition, and further alleged that formal demand to exercise the right to examine and inspect the books of the corporation was made on the 23d of February, 1897, by formal letter addressed to the secretary of the New Orleans Gaslight Company; that the same demand was made of Adolphe H. Sieward verbally before the institution of the suit No. 52,548 of the docket of the civil district court, entitled "State ex rel. Joseph L. Bourdette v. New Orleans Gaslight Company"; that formal demand was made by service of the petition and order issuing from the civil district court, as appears by the sheriff's return therein, in the aforesaid suit No. 52,548; that this demand, as set forth in the original petition herein filed, was made by Clegg & Quintero, attorneys on behalf of and under direction of Joseph L. Bourdette, plaintiff, by letter dated June 2, 1897, and that day delivered to Adolphe H. Sieward, defendant herein, and

that a like demand was made in person by Joseph L. Bourdette, by delivering of demand in writing on the 27th day of December, 1897, and that a demand to be allowed to examine and inspect the books of the New Orleans Gaslight Company in the custody and under the control of Adolphe H. Sieward, defendant, was constantly made by plaintiff, in person and by letter, during the year 1897, between the months of February and December of that year; that these demands were made for the purpose, in the manner, and under the conditions and circumstances as set forth in his original petition; and that each and every and all of these demands were refused, and his right ignored and denied.

The defendant filed a number of excep tions, which were overruled. He then answered. After pleading the general issue, he admitted that at certain times the plaintiff did make demand, as an alleged stockholder of the New Orleans Gaslight Company, to examine and inspect certain books of said corporation, but respondent did not recall or was unable to say whether the dates and proof of such demands were correctly set forth in plaintiff's petition, and demanded strict proof thereof. He admitted that he refused, so far as it was in his control, the inspection of the books demanded, but averred that in doing so he acted in good faith, on the belief, upon legal advice given, that the said Bourdette, plaintiff herein, under the law as respondent then understood it, had not made a proper demand, and had not shown a just and reasonable ground for such inspection, and in the interest of the corporation generally, and other stockholders and parties concerned, and the discharge of his duty as he understood it, respondent refused said inspection, believing that his refusal, under the circumstances, was entirely justifiable. Respondent qualified the foregoing, and said that, as a matter of fact, he did at all times agree and offer to permit the plaintiff to see and inspect certain of the books of the corporation, which he (respondent) believed gave all the information to which the plaintiff. under his demand, was entitled to, but refused only the inspection of certain other books, which respondent believed that plaintiff was not entitled to see at the time, and under the circumstances of his demand. He averred that he had reason to believe, and did believe, that the plaintiff was actuated by mere curiosity, or sought the inspection as a broker holding shares in his name for other persons than himself, for speculative purposes; that the charter and by-laws of the corporation required a full and explicit statement of the business of the corporation to be annually submitted to stockholders at the annual meeting, which had been done, to the satisfaction of all parties in interest, within a few weeks before the alleged first demand for inspection was made. He averred that it was not true that even after-judg

ment he did not permit the inspection of the books until a rule for contempt was taken and he was threatened with imprisonment, but averred the fact in that regard to be that he❘ (respondent) did exhibit to the plaintiff any and all regular books of the corporation, including the stock ledger, wherein were recorded the purchases and transfers of stocks, the names of the stockholders, and the number of shares owned by each; that, upon legal advice, he believed that the opening of these and all other books was a full compliance with the judgment that had become final, and the rule for contempt was in fact an arrangement between counsel to have a judicial interpretation on the question whether cr not, under the judgment and the demand on which it had been based, the plaintiff herein had a right to demand information of and inspection of what is called a mere book of memoranda of transfers of stock made or to be made during the hours of a given day, respondent being advised that such memoranda which before the close of the day were regularly entered in the regular books, could be seen on the following day, was not one of the books of the corporation to the inspection of which the plaintiff herein was entitled, even under the judgment. Respondent averred, however, that he acted in good faith, and specially denied that the plaintiff had suffered any damage from any cause for which he (respondent) was liable.

The district court rendered judgment in favor of the plaintiff against the defendant for the sum of $2,300 and interest and costs, and the defendant appealed. Plaintiff prayed in the supreme court that the judgment be increased to at least $3,116.

Opinion.

The decision of this court in State ex rel. Bourdette v. New Orleans Gaslight Co., 49 La. Ann. 1556, 22 South. 815, has definitely settled that the plaintiff was in February and March, 1897, a stockholder in the New Orleans Gaslight Company; that as such he had the legal right to inspect the books of the corporation in aid of a real and actual interest, upon which would be predicated the request to inspect the same; and that the company had illegally denied him this right. In that suit, which was a mandamus proceeding to compel the present defendant (then the president of the gaslight company) and the secretary of the company to permit such inspection, the mandamus was made peremptory. There was a very considerable delay before the relator was able to make the inspection. He subsequently instituted an action against Sieward individually to recover from him the sum of $5,800, alleged to have been suffered by him by reason of his inability to make such inspection. An exception of no cause of action was sustained by the district court, but on appeal the judgment of the district court was reversed, and the cause remanded for further proceedings. 52

La. Ann. 1333, 27 South. 724. The case was tried upon its merits, and judgment was rendered in favor of the plaintiff for $2,800. The defendant appealed, and it is this judgment which we are called on to consider.

There is no doubt that, our previous decision having determined that the plaintiff had been deprived of a legal right, plaintiff is entitled to recover damages against the defendant to some extent. We have held that the violation by a person of the legal rights of another renders the violator liable for at least nominal damages, without proof of actual damage. Dudley v. Tilton, 14 La. Ann. 283; Powers v. Florance, 7 La. Ann. 524; Bourdette v. Sieward, 52 La. Ann. 1333, 27 South. 724. The question before us is whether the plaintiff is entitled to recover from the defendant the particular damages which he claims. The only decision in our state called to our attention by the plaintiff is that of Byrne v. Bank, 9 Rob. 433. In that case the plaintiff had become the actual owner of a number of shares of the Union Bank by purchase from the Citizens' Bank, and was entitled to have the same transferred to him on the books of the bank, in order to make his ownership available. The bank, without any rights upon or in respect to the stock, refused to make the transfer; the result being that the plaintiff was unable to control his property until some time afterwards, when the stock had become depreciated in value. When he got control of the stock he sold the same at its market value, and, under the judgment of this court, recovered the amount of the depreciation in the value of the stock as damages from the bank. In the case at bar the plaintiff does not claim that the defendant was in control of the ownership of his stock. It was in his own possession all the time, subject to his free power of disposal. What he claims is that, by reason of the refusal of the plaintiff to allow him to inspect the books of the corporation, his judgment had been affected as to whether he should dispose of his stock or not, and at what time he should dispose of it if he deemed it to his interest to do so. His claim is that, had he had inspection of the books, he would have ascertained that the defendant, Sieward, president of the corporation, had recently sold out a large number of shares of the company which he owned; that the Mechanics' & Traders' Insurance Company, of which Col. Macon, who was a director of the gaslight company, was an officer, had also parted with a large block of stock of the gas company; that, had he known these facts, he, also, would have sold out his stock, but, not knowing these facts, he had not only not sold, but had, on the contrary, purchased other stock. It is not pretended that any inspection of the books of the corporation would have disclosed any action on the part of the officers of the corporation in their management and conduct of its affairs which had caused injury to its

business, or any fact which, had it been known by him, would have induced action on his part, as a stockholder, between himself and the corporation or its officers. Neither the president nor the board of directors are charged with misconduct in the management of the affairs of the corporation. The plaintiff complains simply of the effect which he says the action of the defendant in selling out some of his shares of stock would have had upon his dealings, as between himself and the general public, in respect to holding or selling his own stock. The act of the defendant in selling out his own stock was not an official, but an individual, act, which the plaintiff had no legal right to question or control. Plaintiff maintains, however, that he was entitled to know the fact itself, so that he could guide his conduct and his judgment as to disposing or of holding onto his stock by what the defendant had done with his own. He insists that, had he known that the defendant had sold any of his stock, he would have sold his own at once. What he would have done in the premises rests entirely upon his own testimony to that effect. It so happens in this particular instance that at the date of the demand made by plaintiff to inspect the books, and the refusal of the defendant to grant the request, the stock was falling on the market, but this was for reasons entirely independent of the selling out of stock either by the defendant or any one else. The depreciation was due to causes of which the public were very well advised, which had no connection with defendant's sale of his stock, and which it did not require an inspection of the books to know. The stock, after falling, reacted on the market, went for a short time higher than it stood on the day of the refusal of the inspection, but fell again, and has remained down. The evidence shows that the sale by the defendant of his stock was not due to considerations by him of gain or loss in its value,-to possible or probable rise or fall,but in order to enable him to pay debts of his own which he had to meet. He did not sell all of his stock, but retained such of it as he did not need. The sale of stock by the Mechanics' & Traders' Insurance Company had extended over a year's time, and there is nothing to show that it was based upon any inside knowledge of conditions which were calculated to bring about a fall. It so happens that had the plaintiff in this ease made the action of the defendant and that of the Mechanics' & Traders' Insurance Company in selling out their stock a test by which he would be guided as to what he should do with his own stock, and he had sold out on the day that the inspection was sought and denied, he would not, as a matter of accident, viewing the whole situation afterwards, from that day to this, have met with the loss he did, but there was a short period at which he would have gained by not selling, and it might well have been that,

following blindly in the wake of the defendant's action, he might have suffered material loss. The stock of a corporation has two values, the actual value, which an ascertainment of its affairs would show, and a market value, frequently dependent on any given day upon causes entirely independent of the business management and the actual condition of the corporation. We do not think that, for the denial of the officer in charge of the books of a corporation to permit a stockholder to inspect the same on a given day, he should be held liable to that stockholder for the subsequent falling in value of his stock from collateral causes, not due to something which an inspection of the business affairs of the corporation, through the books, would have disclosed; nor do we think that he should be held liable for depreciation of stock from causes of which the general public were advised, without the necessity of an inspection of the books. We have no reason to suppose that the defendant in this case was chargeable with bad faith in his course. He doubtless did what he conceived to be his right and his duty in the premises. We may say here that there is no evidence in the record to show that, as an officer of the corporation, he had absolute control of the books. His action may well have been controlled by, and subordinated to, the will of the board of directors. From a consideration of the whole case, we are of the opinion that the judgment should not stand. damages claimed are remote, collateral, and speculative, and, besides this, are not supported by sufficient evidence.

The

For reasons assigned herein, it is ordered, adjudged, and decreed that the judgment appealed from be. and the same is hereby, amended by reducing the amount thereof to $500, and as so amended it is hereby affirmed, at costs of appellee.

BLANCHARD, J., dissents; holding that, even if plaintiff be only entitled to recover damages for deprivation of a legal right, the amount allowed is inadequate, considering his large holdings of stock in the gaslight company at the time, and the extent and magnitude of the transactions in the shares of that company upon the stock market. PROVOSTY, J., concurs with BLANCHARD,

J.

(106 La.)

FREIE v. LUBBEN. (No. 14,124.)1 (Supreme Court of Louisiana. Dec. 2, 1901.) SEPARATE MAINTENANCE-COSTS-APPEAL.

Where judgment has been rendered in the district court in a suit for separation from bed and board, from which no appeal has been taken, a separate appeal will not lie to the supreme court from the decree of the district

1 Rehearing denied.

court, which taxes costs, simply by reason of the character of that suit. Blanchard, J., dissenting. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Walter B. Sommerville, Judge.

Action by Henry Freie against Johanna Lubben, his wife. Judgment for defendant, and plaintiff appeals. Motion to dismiss. Appeal dismissed.

Albert Voorhies and John G. Robin, for appellant. Cooper & Walshe, for appellee.

Statement of the Case.

NICHOLLS, C. J. The defendant and appellee moves for the dismissal of this appeal on the grounds-First, that the supreme court is without jurisdiction ratione materiæ, the amount involved being less than $2,000; second, that the appeal herein taken is not from a final judgment, but solely from an interlocutory decree, which cannot be made the subject of a detached, special, and separate appeal.

The plaintiff sued his wife for a separation from bed and board. She answered, setting up additionally a reconventional demand. The district judge on May 1, 1901, rendered judgment dismissing plaintiff's demand at his, and defendant's reconventional demand at her, costs. In June, on suggestion of the defendant to the court that the judgment had become final and executory, that she had incurred costs in the defense of the suit to an amount of $101.50, and that other costs would be incurred by her, plaintiff was ruled to show cause why the said amount of costs should not be taxed against him. The court, after hearing evidence, made the rule absolute, and accordingly adjudged and decreed that the items of $101.50 be taxed as costs against the defendant in rule. He obtained a suspensive appeal from this decree, and it is this appeal which is asked to be dismissed. Both parties agree that the judgment in the suit for separation from bed and board is final. Appellant urges in support of the appeal article 85 of the constitution of 1898, claiming that under that article the supreme court has exclusive jurisdiction over all suits for divorce and separation from bed and board, and over all matters arising therein. He contends that the rule to tax costs is an incident of the original suit, and inseparably connected with it, and that the court of appeals is without jurisdiction to regulate and enforce judgments in divorce or separation suits; also that the decree, though interlocutory, is appealable, as it works irreparable injury. Civ. Code Prac. art. 566. He refers the court to Iron Works v. Reuss, 40 La. Ann. 121, 3 South. 500; to State v. Lazarus, 40 La. Ann. $56, 5 South. 289; to Succession of Dougart, 42 La. Ann. 517, 7 South. 794; and to Delesdernier v. Delesdernier, 45 La. Ann. 1364, 14 South. 191. The appellee refers to the same cases,

and adds to these Succession of Bey, 47 La. Ann. 219, 16 South. 825; Durward v. Jewett, 46 La. Ann. 708, 15 South. 292; Learned v. Walton, 42 La. Ann. 453, 7 South. 723; Succession of Dougart, 42 La. Ann. 516, 7 South. 794; State v. Judge, 30 La. Ann. 229; Murphy v. Murphy, 45 La. Ann. 1482, 14 South. 212; and Drew v. His Creditors, 49 La. Ann. 1641, 22 South. 956. She maintains that no appeal will lie from an interlocutory decree which has become final, or from which no suspensive appeal has been taken.

Opinion.

This appeal must be dismissed. There can be no question as to the appellate jurisdiction of the supreme court in suits for divorce and separation from bed and board, and over all matters arising therein, for article 85 of the constitution of 1898 is express to that effect; but this grant of jurisdiction does not destroy the rules and regulations and practice as to how and when that jurisdiction shall be exercised. The parties to the suit of Freie v. Lubben had the right to appeal from the final judgment therein suspensively or devolutively, as they might elect. Had either of such appeals been taken, the question of the costs therein would be before us on the appeal as costs (whether taxed simultaneously with the rendition of the judgment or later) constituted part of the judgment. Neither of the parties to the suit has thought proper to appeal from the judgment therein. The suit is no longer in existence. The district court has jurisdiction over the judgment therein now, as it has always had. It is for the court, whether appellate or inferior, which rendered the judgment, to take cognizance of the manner of its execution, when the proper manner of executing it is to be determined. Civ. Code Prac. art. 629. This court has never had the final judgment in the suit brought before it, and we are of the opinion that the matter of costs cannot be detached from the judgment, of which it forms part, to be made the subject of a separate appeal to this court, simply by reason of the character of the suit in which they were incurred. As matters arise in different suits for divorce and separation from bed and board in respect to which relief from us is asked, we will dispose of the same under their special facts and circumstances. Succession of Bey, 47 La. Ann. 220. 16 South. 825; Delesdernier v. Delesdernier. 45 La. Ann. 1364, 14 South. 191. For the reasons assigned, the appeal is dismissed.

BLANCHARD, J., dissents, holding that, this court having appellate jurisdiction, under the constitution, of suits for separation from bed and board, and of "all matters arising therein," an appeal on a rule to tax costs can come only to this court. BREAUX, J., concurs in the above dissent.