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Opinion of the Court.

view of the statute, the demand for the sale of the personal property on the plantation, apart from the plantation, was out of time.

As to the effect upon the sale of the order made at chambers by the judge of the Twenty-second Judicial District, directing that the personal property covered by the McCan mortgage be appraised and sold separately on the plantation, but little need be said. Touching this order it may be observed that the counsel for the appellant does not refer to any statute of Louisiana conferring upon the judge who made it the power to act in any case pending in another district, in which there is an actual vacancy in the office of judge ; while the counsel for the appellees say that if any authority exists for the exercise of such a power they have been unable to find it in the laws of that State. It does not seem to us that this order, made without citation or prayer for citation against the party to be affected by it, can have the force of a judgment, nor did it authorize the sheriff to depart from the terms of the advertisement of sale, in respect either to the place of sale or the mode of conducting it. In view of the terms of the advertisement, a sale in conformity with the above order, without readvertisement, would have been irregular, if not invalid. This order is liable to the same objection as the one before this court in Freeman v. Dawson, 110 U. S. 264, 270, of which it was said: “The action of the circuit judge in directing the recall of the executions in vacation, out of court, without notice to the judgment creditor, was irregular and unauthorized, and of no legal validity.”

It is contended with much earnestness that the sale of the personal property in a lump, along with the plantation, was unauthorized by the statute and void. We are not satisfied of the soundness of this view. In Morris v. Womble, Sheriff, 30 La. Ann. 1312, 1314, the question was, whether the debtor, who had specially mortgaged his plantation, with all the buildings and improvements thereon, was entitled, of right, to have the plantation sold in lots. The court, after observing that, in the case of a fi. fa. on an ordinary judgment, the debtor has the right to point out the property he desires sold, provided it

Opinion of the Court.

be available and sufficient, says: “But the case we conceive to be very different where the debt for which the sale is made bears special mortgage on the thing to be sold, and where the thing has been mortgaged as an entirety, a unit, and thus made by contrast and in contemplation of the parties indivisible, whether so by nature or not.” “Thus,” the court proceeds, “where a plantation, with its accessories, has been specially mortgaged, the stock, implements, etc., thereto attached by the owner, and therefore made immovable by accession, cannot be sold separately from the plantation itself, no more than can a house or other building on it. When the law gives the mortgage creditor the right to seize the whole thing mortgaged, it gives him the right to sell the whole thing, if it be indivisible by nature or only so by the agreement and contract of the parties."

But if it be assumed that the personal property used in the cultivation of the plantation, and embraced in the special mortgage, ought not to have been sold in block with the plantation, but each article separately, the failure to do so did not render the sale void. The utmost that could be said is that the sale was informal and irregular. But in Louisiana mere informalities or irregularities in a judicial sale do not alone constitute a sufficient ground for setting it aside. The bill alleges that the property did not bring a fair value, and that, by reason of the mode of sale, persons who would have bid did not attend, and were prevented from bidding. These allegations, if material, are not sustained by proof. Nor is there sufficient proof that the property, if resold, would bring any larger price than McCan bid for it, or would be sufficient to discharge his claim in full. The plaintiff does not propose that he, or any one else, will, at a resale, bid any larger sum than McCan paid. Nor have the Godberry brothers, since the sale, made complaint of unfairness in it. Under such circumstances, it not appearing that any real injury has been done to the plaintiff, the sale should not be disturbed because of omissions or informalities that did not affect the substantial rights of the party complaining. In Copeland v. Labatut, 6 La. Ann. 61, the court said: “The petition contains no alle


gation and the record no proof of any injury having been sustained by the plaintiff, in consequence of the informalities alleged; and no offer on the part of the plaintiff to warrant that the property, if resold, would bring a higher price than it did before. Under the rule which we have found it necessary to adopt, those omissions would prevent us from disturbing the judgment, even if the informalities were much more material than they actually are.” So, also, in Mullen v. Harding, 12 La. Ann. 271-2: “Unless the plaintiffs can show that they have suffered injury by the informalities complained of, they ought not to be permitted to attack the validity of the proceedings.” Barret v. Emerson, 8 La. Ann. 503, 504; Stockton v. Downey, 6 La. Ann. 581, 585; Coiron v. Millaudon, 3 La. Ann. 664; Desplate v. St. Martin, 17 La. Ann. 91, 92; Seawell v. Payne, 5 La. Ann. 255, 260.

Decree affirmed.










Nos. 1271, 1594, 1595, 1596, 1597, 1598, 1638. Submitted March 2, 1891. – Decided March 9, 1891.

When the highest court of a State dismisses a case upon the ground that

the matters involved were purely pecuniary, and that the amount in controversy was less than sufficient to give the court jurisdiction under

the constitution of the State, no federal question arises. When the court cannot pass upon a motion to dismiss without referring to

the transcripts on file, it will deny the motion without prejudice.

Opinion of the Court.

The case is

MOTION to advance, and motion to dismiss. stated in the opinion.

Mr. W. A. McKenney and Mr. W. W. Larkin for the motion to advance, and against the motion to dismiss.

Mr. R. Taylor Scott for the motion to dismiss and against the motion to advance.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

These cases are brought here by writ of error to the Supreme Court of Appeals of the State of Virginia, except Dillard v. Moorman, No. 1638, which is a writ of error to the Corporation Court for the city of Lynchburg. A motion is now made by plaintiff in error to advance, and a motion to dismiss on behalf of defendant in error. It appears from the motion papers that Callan v. Bransford, Treasurer, No. 1271, was carried to the Court of Appeals on writ of error to the Corporation Court of the city of Lynchburg, and that Gregory v. Bransford, Treasurer, No. 1595, Litchford v. Day, Sergeant, &c., No. 1598 and Lawson v. Bransford, Treasurer, No. 1597, were taken to that court by appeal.

The writ of error in the one case, and the appeals in the three others, were dismissed by the Court of Appeals upon the ground that the matters involved were purely pecuniary, and that the amount in controversy in each case was less than sufficient to give the court jurisdiction under the constitution of the State. This being so, we are of opinion that the writs of error to that court must be dismissed, and it will be

So ordered. The motion papers in Jones v. The Commonwealth, No. 1594, Mallan Bros. v. Bransford, Treasurer, No. 1596, and Dillard v. Moorman, Treasurer, No. 1638, are not such that we can pass upon the motions to dismiss without referring to the transcripts on file, which we ought not to be obliged to do. These motions and the motions to advance will be

Denied, but without prejudice.

Statement of the Case.





No. 180. Argued January 30, 1891. - Decided March 16, 1891.

The failure to note an objection to a deposition, based upon the form of the

commission or the manner of executing it, when the deposition is taken, or to present the objection by a motion to suppress, or by some other

notice before the trial begins, will be held to be a waiver of it. In an action to recover the contract price for putting up mill machinery,

anticipated profits of the defendant resulting from grinding wheat into flour and selling the same, had the mill been completed at the date specified in the contract, cannot be recovered by way of damages for delay

in putting it up. As a general rule, subject to well established qualifications, anticipated

profits, prevented by the breach of a contract, are not recoverable as damages for such breach; but, where such profits, which would have been realized had the contract been performed, and which have been prevented by its breach, are not open to the objection of uncertainty or remoteness, or where, from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into, they are so recoverable.

This was an action at law by the Stillwell and Bierce Manufacturing Company, an Ohio corporation, having its principal place of business at Dayton in that State, against W. C. Howard, S. T. Stratton and J. Rauch, citizens of Texas, to recover a balance due on a contract in writing entered into between the parties hereto, March 23, 1885, for the reconstruction by the company of a flour-mill owned by the defendants in Dallas, Texas.

The contract provided, among other things, that the party of the first part (the company) should reconstruct the mill of the defendants, upon the roller system, by placing therein certain specified machinery, and “all other machinery and material necessary to erect and complete a flour mill of two

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