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State vs Johnson

Generally such proceedings are injurious and not beneficial to the succession, the speedy settlement of which is usually embarrassed and often impeded by such a contest.

But the present case is a fair illustration of an exception to that ru le. Kursheedt had been named as an alternate executor under the will, and it became his duty during the known absence and consequent inability of the preferred executor, to institute preliminary proceedings for the administration of the succession. At his instance an inventory was made and homologated and an attorney of absent heirs was appointed. These conservatory measures enured to the benefit of the succession and through their adoption by the present executor, they have actually served as a legal basis and a proper foundation for all the subsequent proceedings which the executor has provoked and conducted.

Hence we think that in law and justice, the opponent Gutheim is legally entitled to a reasonable compensation for his services in causing an inventory to be made, and in securing the appointment of an attorney of absent heirs, and we shall fix his compensation at one hundred dollars.

We pretermit a discussion of charges of irregularity in some of Gutheim's proceedings, from which has flowed some acrimony between him and the executor. Such a discussion is not necessary to a proper solution of the question presented under the issue, and would not subserve the ends of justice.

The judgment dismissing Meyer Gutheim's opposition, is, therefore, reversed. His opposition is maintained and his claim thereunder is fixed at one hundred dollars, for which purpose the tableau of distribution is hereby amended at the cost of the succession in both courts. The judgment dismissing Joseph Brewer's opposition is affirmed at his cost as to his said opposition in both courts.

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No. 9056.

THE STATE OF LOUISIANA VS. PINKNEY JOHNSON.

An appeal will not be entertained in a criminal case where no sentence has been passed or where the record contains no evidence of any sentence

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PPEAL from the Seventeenth District Court, Parish of East Baton
Rouge. Sherburn, J.

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

T. J. Cross for Defendant and Appellant.

The opinion of the Court was delivered by

TODD, J. We gather from the record in this case that the defendant was prosecuted for inflicting a wound less than mayhem with

Droz vs. Parish of East Baton Rouge and Treasurer.

intent to kill. He was not sentenced to any punishment for that or any other offense, or, if he was, the record contains no evidence of it. The appeal, therefore, was premature and in the absence of any application to complete the record, the case is ordered to be stricken. from the docket.

No. 9100.

EMILE DROZ VS. THE PARISH OF EAST BATON ROUGE AND TREASURER. Creditors of a municipal corporation have no right to invoke the remedy of injunction to restrain municipal authorities in the exercise of their administrative functions, except as an adjunct to a remedy for the enforcement of their debts.

In this case there is entire failure to establish plaintiff's right to the mandamus prayed for, to pay his debt, and, therefore, the remedy by injunction must fall with it.

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PPEAL from the Seventeenth District Court, Parish of East Baton
Rouge. Sherburn, J.

K. A. Cross for Plaintiff and Appellant.

G. W. Buckner for the Appellee.

The opinion of the Court was delivered by

FENNER, J. This is an action by a judgment creditor of the parish of East Baton Rouge, directed against the police jury and the treasurer of the parish; the relief sought, in which, as appears from the prayer of the petition, is to obtain an injunction "restraining the police jury from appropriating and the treasurer from paying any amount to the prejudice of petitioner's said judgment," and a mandamus commanding the treasurer "to pay petitioner the amount of said judgment out of funds in his hands to credit of a so-called contingent fund."

The record is barren of any evidence showing that there is any special legal duty resting on the parish to appropriate this particular fund to the payment of this particular debt in preference to others, or that the contingent fund will not be required to supplement deficiencies which may arise in the revenues anticipated to meet other lawful appropriations in the budget; and the evidence shows that, at the date of this proceeding, there was but $40 in the treasury to the credit of this fund.

Obviously, no case is established for a mandamus.

As to the injunction, complaint is made of certain appropriations already made by the police jury, for purposes claimed to be improper and beyond the province of the jury.

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State vs. Comstock.

For aught that appears, these appropriations may already have been paid and the broad injunction asked for is, manifestly, improper. The appropriations are for public purposes and we are not prepared to say they are beyond the general powers of the corporation.

But, at all events, the general rule is that judicial tribunals will not interfere with municipal corporations in their administrative government, unless some clear right has been withheld or wrong perpetrated. Dillon on Munic. Corp. secs. 58, 59.

Plaintiff, in his capacity of creditor simply, can invoke the remedy of injunction in such a case, only as accessory to his remedy for the enforcement of his debt; and as he has not sustained his right to a mandamus for that purpose, his injunction must fall.

The general right to invoke the remedy of injunction to prevent municipal authorities from passing beyond the line of their municipal powers, is not extended to creditors except, as before stated, in aid of remedies to enforce their debts.

Such acts are assimilated in New York and Massachusetts to public nuisances, affecting the whole public and only to be restrained at the suit of public officers authorized for that purpose, or by some private person who shows that he suffers therefrom or is threatened with some injury peculiar to himself. Dillon, sec. 735, and authorities quoted.

In other States, the right of citizens and taxpayers generally to invoke such relief is recognized. Id. sec. 731 et seq.

But it is not held anywhere that a mere creditor may do so, otherwise than as above stated.

It is not made to appear that an injunction against payment of these alleged illegal appropriations would advance the payment of plaintiff's debt.

Judgment affirmed at appellant's cost.

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No. 8989.

THE STATE OF LOUISIANA VS. RICHARD COMSTOCK.

The use of due diligence is a pre-requisite to obtaining a continuance of a criminal prosecution.

Attachments for absent witnesses cannot be issued unless they be personally served with subpœnas.

To procure a continuance because of an absent witness, the accused must aver in his affidavit that he cannot prove by any present witness the fact he expects to prove by him, for whose absence the continuance is prayed. And the fact he expects to prove must be stated.

State vs. Comstock.

Where there has been a continuance, and a copy of the indictment has been served on the accused once, it need not be served again immediately preceding the trial.

An objection to a ruling of the trial judge on a criminal prosecution, and a reservation of a bill thereto, noted in the minutes of the court, will not be noticed unless the objection is made the subject of a bill duly signed and certified by the judge. The Act of 1877, permitting an objection to be reserved by the clerk taking a note thereof, is an amendment of the Code of Practice, and as that Code regulates the practice of civil causes alone, the amendment can relate alone to those causes.

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PPEAL from the Twenty-sixth District Court, Parish of St. Charles. Hahn, J.

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

Jas. D. Augustin and Chs. A. Baquié for Defendant and Appellant.

The opinion of the Court was delivered by

MANNING, J. The prisoner was indicted for rape upon the person of Aimée Jenkins, was convicted without capital punishment, and sentenced to hard labor for life.

The indictment was found November 28, 1882. The prisoner was arraigned on the following day, and the case fixed for December 6th, on which day a continuance was prayed and granted. It was fixed at the next term for May 19th, when the defendant applied for and obtained another continuance on the ground of absence of material witnesses. He was then released from confiuement on bail. The case was again fixed at the autumn term for October 13th, and a continuance was then made necessary by the defendant's flight from justice, and it was finally fixed for October 20th, when a fourth continuance was asked and refused.

This refusal is one of the grounds relied on for reversal of the judg

ment.

The application for this fourth continuance is based on the same ground as the second, but the two motions differ as to the names of the witnesses whose absence is complained of. All were expected to prove an alibi, but the affidavit for continuance disclosed that he had two witnesses present who would swear to the same facts as the absent witnesses. There are no subpoenas with returns.

There was want of due diligence, or no shewing of due diligence, and the evidence of these witnesses would have been cumulative only, since there were others present to prove the same fact. Their evidence was not therefore material. To procure a continuance, the defendant's affidavit should have averred that he could not prove by any present witness the fact he expected to prove by him, for whose absence the con

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Eyle vs. Catholic Church.

tinuance is prayed. State vs. Robinson, 29 A. 364; State vs. Bradley, 30 A. 326; Allen vs. The State, 10 Ga. 85; Freligh vs. The State, 8 Mo. 606.

The use of due diligence is a pre-requisite to obtaining a continuance of a criminal cause. Subpoenas for absent witnesses must have been issued. Unless subpoenas have been served, attachments cannot be issued for the witnesses. State vs. Allemand, 25 A. 525.

The objection that a copy of the indictment had not been served on the accused falls when it appears that, although not served immediately before the last setting of the case, it had been twice served on him on two former settings thereof.

The second bill of exceptions seems to have been taken to the refusal of the judge to grant a new trial, and nothing else. No ground for the new trial is stated therein.

There is no appearance in this Court for the defendant, but the brief of the Attorney General treats the ground of the motion for a new trial as if it had been made the subject of a bill. It does not appear anywhere except in the minutes of the court, and the ground is there stated, and the ruling of the court thereon, and a minute is made that a bill was reserved, after the manner permitted in civil cases by the Statute of 1877. But no bill was drawn.

The Act of 1877 is an amendment of Article 488 Code of Practice. That Code provides for the practice in civil causes alone, and the amendment can of course apply to no other. State vs. Jessie, 30 A. 1170. In a criminal prosecution, unless the objection is embodied in a bill, this Court cannot review the ruling of the trial judge. State vs. Dufour, 31 A. 804.

There was nothing lost however in this particular case. ruled correctly on the objection.

The judge

Judgment affirmed.

Rehearing refused.

No. 9108.

FRED. EYLE VS. THE ROMAN CATHOLIC CHURCH, ETC.

And THE SOCIETY OF THE ROMAN CATHOLIC CHURCH VS. FRED. EYLE. Matured notes growing out of the same transaction, in the hands of the same creditor against the same debtor, constitute but one debt.

Payments made after maturity of such notes, are imputable to the entire debt.

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