No. 20821 | La. | Oct 19, 1914
Lead Opinion
On Motion to Dismiss xVppeal.
Defendant, appellee, moves to dismiss the appeal in this case on three grounds:
“The appellant may, ou taking his appeal, or within three current days thereafter, file with the clerk of court, a written list of the portions of the record to constitute the transcript of appeal.”
The written list of the portions of the record to constitute the transcript of appeal in this case was not filed within three days after obtaining the order of appeal as suggested by appellee, but it was filed by appellant within three days after the filing of the appeal bond. This was a compliance with the law. .To “take an appeal” is to procure, or to obtain, an appeal; and it is settled that an appeal has not been taken, procured, or obtained until an appeal bond has been filed, in cases where bonds are required. It has been frequently held that a ease has not been appealed, conveyed, carried, or transferred to the appellate court until the appeal bond has been filed; at which time the
“Parties in interest inosecuting subsequent appeals will be permitted, upon application to this court, to use transcripts in previous appeals when such appeals are branches of the same case, omitting from their copy the portions included in preceding transcripts.”
And it is not required that the motion to use the transcript previously filed should be made on or before the return day of the later transcript'. A motion was made by counsel for appellant, on the first day of the term, to use said transcript.
The motion to dismiss the appeal is denied.
Opinion on the Merits
On the Merits.
The petition further alleges that at no time was Mrs. Nessans ever indebted unto the said Mrs. Melchior, but that the latter was indebted unto the former for money loaned.
The petition further alleged that in October, 1906, while Mrs. Nessans was in bad health and incapable of attending to her affairs, Mrs. Melchior caused her to make a notarial will, bequeathing to Mrs. Melchior the disposable portion of her estate,.
The defendant for answer specially denied the charges of undue influence, fraud, and simulation made in the petition, and averred the legality and validity of the notarial act of dation en paiement executed on March 26, 1907, and registered in the conveyance office on the same day.
There was judgment for the defendant, and the plaintiff has appealed.
In this court the defendant has pleaded the prescription of one year against plaintiff’s demand.
On March 26, 1907, “Mrs. Vve Marie Nessans” appeared before a notary public and signed an act of dation en paiement, conveying the lots in question to Mrs. Melchior, for and in consideration of the sum of $4,000, loaned by her to said Mrs. Nessans about May 16, 1891, with legal interest thereon from that date, and in further consideration of the assumpsit by Mrs. Melchior of a certain mortgage for $1,400, bearing 7 per cent, interest from December 18, 1906.
On June 10, 1908, Mrs. Nessans signed a paper in which she certified that she had received from her sister, Mrs. Melchior, the sum of $1,800, “in settlement of act of sale (dation en paiement) of the two properties t situated 2929 and 2931 Ursuline avenue and also rear lot facing Gayoso street.”
On the same sheet of paper appears a writing .purporting to have been signed by the plaintiff on the same date, reading:
“I am fully aware that my aunt Mrs. Honorine Colomes, wife of Charles J. Melchior, has fully paid the amount of eighteen hundred dollars aforesaid to my mother.”
During the first trial of this case, after the production of the above documents and their verification by the oath of the defendant, counsel for the plaintiff, after consultation with her husband, consented that judgment be entered in favor of the defendant, which was done.
Plaintiff, who was not present at the trial, moved for a new trial on the ground that the document purporting to have been signed by her was a forgery. The judge a quo refused to grant a new trial, and the plaintiff thereupon appealed to this court, which reversed the judgment and remanded the cause for further proceedings.
We think that the evidence shows that Mrs. Boyer wrote and signed the certificate of June 10, 1908, on the same piece of .paper, and on the same day, her mother wrote and signed the receipt for $1,800, and on the same day her mother wrote and signed the olographic will, revoking prior wills, and constituting Mrs. Boyer her sole heir and universal legatee. In 1906 Mrs. Nessans made a will leaving the disposable portion of her estate to her sister, Mrs. Melchior. In 1907, Mrs. Nessans made the dation en paiement in question to Mrs. Melchior. The will of June 10, 1908, revoked the prior will, and the two other documents of the same date show a “settlement” of all claims connected with the dation en paiement. Mrs. Nessans’ receipt for the money “in settlement” is corroborated by the written declaration of Mrs. Boyer. The evidence clearly shows that in April, 1908, Mrs. Melchior mortgaged the premises in dispute to secure a loan of $1,800 for the purpose of making d settlement with Mrs. Nessans.
The fact that Mrs. Boyer did write and sign the document is directly proven by the testimony of Mrs. Melchior. Mrs. Boyer’s husband recognized her handwriting and signature when the document was produced on the first trial, and was so well satisfied of its verity that he authorized the entry of judgment in favor of the defendant.
Besides the property in dispute, Mrs. Nessans owned 24 lots, which she had specially mortgaged to secure a loan of $1,000. This mortgage was canceled on the records on April 29, 1908. This left the 24 lots clear of incumbrances, and they so passed to Mrs. Boyer under the will of June 10, 1908.
Mrs. Melchior, on March 29, 1909, paid Mrs. Nessans’ note for $1,400 with $24.50 interest, which was assumed by her in part consideration of the dation en paiement.
Mrs. Melchior also paid $1,800 to Mrs. Nessans as stated supra. Whatever sum Mrs. Nessans may have owed to Mrs. Melchior for money advanced in 1891 was an additional consideration for the conveyance of the property. Mrs. Nessans had the right to waive prescription, if she deemed proper. Such a transaction cannot be considered as simulated.
Plaintiff’s attack on the mental capacity of her mother during the years 1906 and 1907 and 1908 is not sustained by the evidence. It is true that Mrs. Nessans during that period suffered from an internal cancer, but the physicians who attended her testified that the cancer did not affect her mind; and several of them, including an eminent surgeon, stated that her mind was clear, calm, and lucid. It is true that in the progress of the insidious disease Mrs. Nessans from time to time suffered from violent hemorrhages, which depleted her system to such an extent as to produce extreme physical weakness, and on occasions a condition of temporary coma. But it is equally true that Mrs. Nessans after such attacks rallied within a few days, and became capable of attending to business affairs. On this subject-matter, Dr. Matas testified as follows:
“There might have been transient conditions of the mind, but those conditions were never sufficiently strong to make the patient — to compel the patient to lose control over her idea, or over her will, except that, occasionally, she would on account of the toxic condition. In the last stages there, she would be unconscious for a little while, but, when she would be conscious, she would be thoroughly governed by her will. And during her whole illness I found her, especially as far as the transaction of business matters was concerned, perfectly clear.”
Plaintiff’s testimony is to tbe effect that her mother, during her long illness, had good common sense, but there were times when her mother “suffered so very much that her mind was really — it was weak.”
Mrs. Nessans was capable of managing her own affairs. It is admitted that she was a good, honest woman, and loved her only child, the plaintiff in this case. The theory of the petition is that Mrs. Nessans did not have sufficient mental capacity to enter into the contract of dation en paiement with Mrs. Melchior. This contention having been refuted, the necessity of the case requires that plaintiff’s evidence establish the fact that the mother perpetrated a fraud on 'her only child, whom she dearly loved.
We think that the bona fides of the dation en paiement, which is presumed, is supported by the testimony of Mrs. Melchior, which is corroborated by the settlement of June 10, 1908, made in the presence of the plaintiff. The receipt of Mrs. Nessans executed on that occasion shows that she received the sum of $1,800, more than she was entitled to under the terms of the dation en paiement. The written declaration of the plaintiff, of the same date, certifies to the payment of the said sum. On the same day, Mrs. Nessans made an olographic will instituting the plaintiff as her sole heir, and revoking .a prior will in favor of Mrs. Melchior. With the light thrown on these transactions by the testimony of Mrs. Melchior, the conclusion is irresistible that the mother, daughter, and
We have read and considered the evidence, oral and documentary, adduced on the two trials of the case. It is too voluminous to be set forth in this opinion, and we have confined ourselves to a- statement in general terms of the evidence bearing on the decisive issues in this case.
Our learned brother below saw and heard most of the witnesses, and his judgment on their credibility, and on their painfully conflicting testimony, is entitled to great weight with this court, especially in a case involving questions of fraud.
Judgment affirmed.