39 La. Ann. 780 | La. | 1887
Lead Opinion
ON MOTION TO DISMISS AND ON APPLICATION FOR CERTIORARI.
The opinion of the Court was delivered by
On the first day of the present term appellees moved for tbe dismissal of this appeal on the ground that tbe clerk, in bis certificate, did not state that tbe transcript contained all the evidence adduced on tbe trial below.
Two days later, appellant filed bis application for an order to direct tbe clerk of the district court to correct bis certificate, and tbe application is resisted by appellees on the ground that it was not made before, or at the time of the argument as required by art. 898 of the Code of Practice.
It is true that the motion for a certiorari was made after tlie case had been submitted, and not, as erroneously contended for by appel lant’s counsel, after it bad been partially submitted. But it is clearly apparent that the fault is not imputable to appellant, if the clerk omitted to state the whole truth in his certificate. The transcript is voluminous, and it.contains a mass of documentary evidence and of parol testimony taken down in writing.
Hence, it is more than probable that tbe error is in the certificate.; and for that reason the appeal cannot be dismissed. Revised Statutes,
Now, as the appeal cannot be dismissed at the present stage, because the apparent deficiency of the transcript is not imputable to appellant, and as the case cannot be tried because it is not shown that the transcript does contain all the evidence offered, admitted and considered below, what will become of the case 7 Reason and law alike point out the course to be pursued, and require that appellant be allowed an opportunity to complete his transcript; as the three judicial days within which he could file his transcript had not yet expired when the case was argued and submitted, his right, under the law, to have his transcript corrected and completed is not affected by the provisions of article 898 of the Code of Practice. Such a course was pursued in the case of Trudeau vs. Railroad, 15 Ann. 717, in which the following rule was formulated. “ When a diminution of the record is suggested, the Supreme Court will order a certiorari to perfect it, although the case has been submitted for judgment.”
But as it may happen that the silence of the clerk in his certificate is proof of a negative fact, aud that the transcript does not contain all the evidence adduced at the trial, we shall not now dispose of appellee’s motion to dismiss the appeal, and shall postpone consideration' thereof until the clerk makes his return on the certiorari.
It is therefore ordered that a writ of certiorari issue to the clerk of the district court of the parish of Morehouse ordering him to complete his certificate to the transcript of appeal in this case, by stating positively whether said transcript does or not contain aLl the evidence adduced on the trial of said cause, and that said writ be made returnable on the 18th day of June, 1887.
Opinion on the Merits
On the Merits.
This is an action in declaration of simulation, in which plaintiff, a judgment creditor of the defendant husband, seeks to subject to the execution of his judgment two pieces of immovable property purchased in the name of the wife, but alleged to be the property of the judgment debtor.
The wife resists the demand, and urges that at the time that she purchased the property she was duly separated in.; property from her husband by judgment, and that the purchases were made .with her sep-arate funds, of which she had the administration.: ..
It appeai-s from an admission of the parties in the record that in the year 1870 the court-house of the parish of Morehouse was entirely destroyed by lire, together with all the records and papers therein contained and belonging to the district court of that parish. Hence, secondary evidence, consisting of parol testimony, was properly admitted to show the alleged judgment, of separation of property between Peter-kin and his wife, rendered by that court in the year 1869. That testimony is corroboiated by an authentic act executed by Peterkin and his wife on June 25,1870, by which he transferred to her some movable property in part payment of the moneyed judgment which she had obtained against him.
Having proven that much, touching her condition as separate in property from her husband, the defendant wife is entitled to protection under her judgment against any collateral attack on the validity of the same on the part of plaintiff, whose claim against Peterkin did not originate before the .year 1876, and whose judgment which he is now seeking to enforce against the property in dispute, was rendered only on the 25th of April, 1880.
As he was not a creditor of the husband at the date of the judgment of separation of property, he had no legal concern with its existence or validity, as he had no rights which could be jeopardized or affected thereby in the least.
This ruling finds ample support in reason and as well as in authority; and we find that in our jurisprudence it has been formulated thus:
“A judgment that has been regularly obtained by the wife against her husband cannot be contested or inquired into collaterally by a creditor of the husband whose claim only arose after it was rendered.” Farwell vs. O’Neil, 22 Ann. 619; Dinkgrave vs. Norwood, 10 Ann. 564.
The judgment having been regularly rendered, and having been partly satisfied through a giving in payment executed in an authentic act within a reasonable time (C. C. 2428), it follows that the wife was thus fully able and authorized to purchase property in her own name, and the burden of proving the invalidity of such purchases is on the party attacking the same. Chaffe & Sons vs. De Moss, 37 Ann. 186; Farrell vs. O’Neil, 22 Ann. 619; Todd, curator, vs. Larkin, 38 Ann. 672.
Plaintiff has undertaken the task, and he has introduced evidence in support of his contention that both purchases, though made in the name of the wife, were in truth and in fact made for the husband. His evidence amounts at most to negative conjectures, showing some suspicious circumstances. But its weight is entirely destroyed by the
The record shows that she received a considerable inheritance from her father and mother, and that for many years sin: has owned a large and valuable plantation which she at times leased, and at other times cultivated, and from which she could derive revenue sufficient to make subsequent and additional purchases. But being separate in property, she had the right in law to purchase property on terms of credit at her discretion, and the creditors of her husband have no authority to inquire into the source of the means or funds which she used in making payments thereon. It is sufficient for her to show that her true and real intention was to purchase for her own account, and it is incumbent on complaining creditors to make proof of the alleged simulation of the purchases made.
It may be conceded, as plaintiff contends, that the credit instalments on the purchase price of the town lot and residence in Bastrop were paid with parish warrants held by her husband for debts due him by the parish. She testifies that she acquired that paper from her husband in satisfaction of a debt which he owed her, and the record contains no evidence to the contrary. At the date of that purchase in 1877, plaintiff was not yet a judgment creditor of the husband. Hence, his rights or those of other creditors could not be affected, and they could not resist the legal effect of the purchase even if it were proved that Peterkin had made a donation to his wife of the parisli paper without consideration.
Dealing with a similar attack, this Court has recently said: “What motive, then, for disguise or simulation? How natural, then, that all parties should have intended that the title should pas’s to the wife as a real title and as the true owner! If such was the intention, and we are convinced that it was, the wife’s title could not be attacked as a simulation even if the husband had given the notes (with which the price was paid) to her without consideration.” Todd vs. Larkin, 38 Ann. 672.
The true intention of the parties in the case at bar is made still more manifest by the fact that from 1877 to 1882 the husband was engaged in a mercantile business of considerable magnitude, and that he thus owned in his own name some immovable property in that parish, which he continued to own as late as the year 1885.
Our conclusion is that her titles have successfully withstood the assault made by the plaintiff in this case, and that she is entitled to enjoy the benefits of the investment of her separate funds.
Judgment affirmed.
