Adler, Goldman & Siegel vs. Wolff et al.

The plaintiffs allege that the cotton was sold to Beer, by whose order it was transferred to Meyer, Weis & Co., and the latter ask judgment against him for the amount of their advances. The fact that Beer was not cited on the counter demand of Meyer, Weis & Co. is no reason why he should not be represented and why the latter should have no recourse against him, under the circumstances of this case. The plaintiffs thought that they could not trace their cotton to Meyer, Weis & Co. unless through Beer, and could not ask judgment affecting that cotton without bringing him formally in, and they have accordingly formally done so.

III.

The plaintiffs claim that they should not be denied a personal judgment against Wolff, with recognition of their lien and privilege on the cotton.

But it is impossible to admit that privilege in the absence of Beer, whose cotton it may be.

Had the plaintiffs waived that lien, there might have been no objection in rendering a judgment on the claim against Wolff.

This Court cannot render the personal judgment and next inquire into and pass upon the question of privilege. It will not try and decide a case piecemeal against the same defendant.

IV.

Wolff insists that judgment should have been rendered in his favor. It is difficult to perceive how such conclusion could have been reached. The difficulty in the way of a definitive judgment between him and the plaintiffs consists in the impossibility of rendering a judgment which would recognize the lien claimed without affecting the rights of Beer, who was made and remains a party; who is here represented by plaintiffs as having been cited and served and who has certainly an interest in resisting the claims of both plaintiffs and Meyer, Weis & Co.

If it be true that Beer was cited and served, it will be incumbent on plaintiffs to obtain a judgment in lower court, on proper showing. before proceeding with the case on the remanding thereof.

Had the citation and the return, the motion for a default and a judg ment thereon, been regularly before us, the case could have been easily disposed of. In the absence of such essential proceedings, our previous decree cannot be altered.

Rehearing refused.

State vs. Chandler.

No. 9035.

THE STATE OF LOUISIANA VS. GEORGE CHANDLER.

After the evidence is closed in the trial of a criminal case the defendent cannot be allowed to introduce other testimony, even with a view to contradict statements of a state wit ness, drawn out of him in rebuttal, on the pretense that his statements embraced new matters. The pro er course is to object to such testimony or to move for its expulsion. There must be an end of the trial, which would otherwise be protracted indefinitely.

A motion in arrest of judgment is not the proper mode of presenting objections to the man. ner of drawing or organizing either the grand or petit jury, or of presenting errors not apparent on the face of the record.

District judges have the right to order special jury terms at which all criminal cases may be tried. The right is not limited to special terms for the trial of minor offenses with a jury less than twelve in number. State vs. Claude, 35 A. 71, affirmed.

PPEAL from the Sixth District Court, Parish of Morehouse.

A Brigham, J.

J. C. Egan, Attorney General, for the State, Appellee.

Todd & Todd for Defendant and Appellant.

The opinion of the Court was delivered by

POCHÉ, J. On a charge of murder the defendant has been convicted of manslaughter.

1. He complains on appeal that the trial judge erred to his detriment in rejecting the testimony of a witness whom he attempted to introduce after the evidence had been closed.

His object was to contradict the testimony of a State witness, drawn out by the district attorney as rebuttal testimony.

The defendant charges that the testimony which he sought to meet, comprised new matters not covered by the testimony of the witnes., in his preceding examination.

The judge did not err in his ruling. There must be an end to the examination of witnesses in all trials. The rules of practice have wisely provided that when the evidence has been closed, the examination of witnesses is at an end. A different rule would have protracted trials beyond reason and would have practically resulted in a denial of justice.

When the State seeks in rebuttal to draw out new matters from one of her own witnesses, the defendant's right is to object to the questions propounded to that end or to move for the exclusion of the statements of witnesses containing new matter. But the error complained of can afford no justification for the commission of a second error, of re-opening the evidence after it had once been closed.

36 177

48 296

48 311

36 177

51 105

36 177

52 209

52 210

36 177

104 445

104 446

State vs. Chandler.

2. In a motion in arrest of judgment the defendant submits that the grand jury which presented the indictment and the petit jury which returned the verdict against him, had not been legally drawn or constituted, for the reason that the venire had been drawn for a special jury term, alleged to be illegal because it had been ordered by the district judge while he was out of the State, on a leave of absence.

That objection, made after trial, comes too late; the motion in arrest, which is restricted to defects arising from intrinsic causes appearing on the face of the record, cannot be entertained as the mode of urging irregularities in the formation of the jury. The mere fact that the defendant had recourse to parol testimony, to show the absence of the judge, from the State when he issued the order alleged to be illegal, is a fair test of the conclusion that the defect complained of is not apparent on the face of the record.

In the recent case of the State vs. Noah Jackson (35 A. —), we had occasion to make a thorough examination of criminal jurisprudence on this point, and we therein re-affirmed the rule which has settled that the motion in arrest of judgment is not the proper form or proceeding of embodying and presenting alleged errors not appearing on the face of the record.

3. Appellant also denies the right of the district judge to order a special criminal term other than such as are contemplated by Art. 117 of the Constitution, and Act No. 135 of 1880.

His point seems to be that the only special jury terms authorized by the Constitution and laws of the State, are those in which juries, less than twelve in number, are empanelled for the trial of criminal cases in which the penalty is not, necessarily, imprisonment at hard labor or death.

The identical point was made in the case of State vs. Claude, 35 A. 71, and was decided adversely to appellant's position in this case.

For the reasons given in that case, we overrule the objection made in the case now before us.

The record shows that due public notice was given of the judge's order convening his court at such special term, and that everything touching the same was regular and legal.

We find no error to the prejudice of the accused.

Judgment affirmed.

Gauthraux et al. vs. Thibodaux et al.

No. 8960.

MRS. O. GAUTHRAUX ET AL. VS. THEO. THIBODAUX, SHERIFF, ET AL. Where a party makes a conveyance of immovable property for a valuable consideration, which he receives when the act is passed, and the deed is recorded in the parish where the immovable property is situated, and followed by possession, a judgment creditor of the vendor cannot make a direct seizure of the property because of the fact that the one to whom the conveyance was made was not purchasing for himself but for others, who paid the consideration, and to whom the ostensible purchaser gave a counter-letter. which, however, was not recorded before the seizure. To justify such a seizure, the sale in question must be a pure simulation in all respects.

Nor will it avail the seizing creditor that the property is described in said deed, not by metes and bounds, but the deed conveys all interest and right and property in certain successions named, and the property seized once belonged to those whose successions are so named, and was inherited jointly by the said vendor and those for whom the pur. chase was made.

The real purchasers have the right to enjoin the seizure.

A

PPEAL from the Twentieth District Court, Parish of Lafourche.
Knobloch, J.

O'Sullivan & Blake for Plaintiffs and Appellants.

Clay Knobloch for Defendants and Appellees:

Heirs who take possession of a succession that owes no debts become absolute owners. 31 A. 506; 33 A. 827; 34 A. 1168; 30 A. 93; 32 A. 321. A pretended sale for cash, when no cash was actually paid, by one of the heirs of his undivided interest in the succession, without giving any description of real estate, to one who declares he did not really pur chase for himself but as sub-agent of the agent of third parties, cannot affect a creditor of the vendor whose judgment was registered in the mortgage records. C. C. 2438, 1886, 2259 3306. 2439; 1 A 338: 4 A. 293; 5 A. 258; 12 A. 251.

2. A mandate to buy real estate must be in writing (C. C. 2992, 2997, 2415) and cannot be proved by parol. 32 A. 635; 30 A. 898; 23 A. 196; 31 A. 547.

4

3. The unauthorized act of a sub-agent cannot be ratified by his counter-letter to an unauthorized agent, and this without regard to the reality or simulation of the counter-letter. Principals alone can ratify.

Nor can the unauthorized act of the sub-agent of the agent be ratified even by the principals to the prejudice of third persons who have acquired rights in the meanwhile. 12 R. 225, 653; 7 N. S. 375; Hen. Dig. p. 837, No. 6.

5. Parol proof is inadmissible to show that a pretended vendee was really invested with title for the benefit of third parties. 15 A. 539; 38 A. 678. It would be a petitio principii to say the vendee's declarations are admissible because he was the agent, and he was the agent because his declarations are admissible. Wharton on Evidence, § 1183; see also Starkie on Evidence, § 665.

6. The principle that a private unrecorded document in relation to immovables cannot affect third persons, holds good even though the private document is real and is not assailed on the ground of simulation. C. C. 2246, 2266, 2442.

7

A counter letter has no date except that specially proved (19 A. 139) and this without reference to the question of simulation.

8.

Gauthraux et al. vs. Thibodaux et al.

Plaintiffs' enjoining on the ground that they are owners under a notarial sale attacked for simulation, must establish title by clear, certain and legal evidence. 19 A. 139.

The opinion of the Court was delivered by

TODD, J. One Cyprien Azema, a defendant herein, having caused an undivided interest of certain immovable property to be seized as belonging to his judgment debtor, the plaintiff's alleging that they had purchased the interest of the debtor prior to its seizure, enjoined the execution of the writ and asked to be declared owners of the aforesaid interest.

The injunction was dissolved on motion, with damages, and plaintiffs have appealed.

The facts undisputed are these:

P. A. Aucoin was the joint owner with the plaintiff, his sister, of property consisting of a house and lots in the town of Thibodaux, which they had inherited from their deceased parents.

On the 23d of January, 1883, Aucoin conveyed to one E. A. O'Sullivan, by notarial act passed in the city of New Orleans, the following, as described in the deed:

*

"The undivided one-fourth part, share and interest in all the estate, right, title and interest, property, possession, share, claim and demand of every nature and kind whatever, of him the said P. A. Aucoin, in and to the succession and estate of his deceased parents without exception or reservation, and to the property, rights, credits and effects belonging thereto, whether in whole or in part, and whether in this State or elsewhere, and also in and to any and all property, to or in which it may hereafter appear that the said successions or estates are entitled or in anywise interested."

This act was recorded in the parish of Lafourche on the 24th of January, and the seizure made on the 23d of May, following.

It was alleged in the petition that this conveyance was made to O'Sullivan as the agent and attorney of plaintiffs and for their benefit, and for a price or consideration paid by them.

That O'Sullivan received or accepted the conveyance for the plaintiffs is evidenced by a counter-letter to that effect, purporting to be dated 25th of January, 1883, and which we think was properly admitted in evidence, though not recorded.

The consideration expressed in the deed for the property was $1000 cash.

It was charged in defendants' motion to dissolve that this conveyance was a bare simulation, that the pretended purchaser did not buy and that he paid no price or consideration whatever for the property.