Reddick v. White, 46 La. Ann. 1198

Reddick v. White

46 La. Ann. 1198 | La. | 1894

Lead Opinion

On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The motion to dismiss in this case is on the ground the record of appeal is not stamped as required by Sec. 1 of Act No. 136 of 1880.

The appellant claims that under the order of the lower court the appeal was allowed in forma pauperis, dispensing him from stamping the record. We are aware of no legislation that authorizes this court to dispense with the stamping of the record as a preliminary to the hearing of the cause. The appellant refers to the dispensation from costs accorded by courts of equity to the poor litigant and insists our courts can observe the same rule. But our courts are controlled by the legislation on this subject. That legislation is to provide the means to maintain the judiciary by stamps to be paid for by the litigant and affixed to all papers filed or used in the courts, including records of appeal. The State is exempted from costs on the general principle that in its own courts the sovereign pays no costs.

*1204The city pays none in advance in criminal cases by statutory exemption, and there may be other exemptions by statute. The exemptions illustrate the rule that all litigants must observe the law requiring stamps in legal proceedings. It is claimed that the eleventh article of the Bill of Rights of the State Oonstitution declaring that the courts are open to all entitles the appellant in forma pauperis to file the record without stamps. The same Oonstitution provides for stamps to be paid by litigants as the revenue of the State for supporting the courts. If under Article 11 of the Bill of Rights the courts are to be open without costs to the class of litigants who claim privileges as poor litigants — on the same principle it might be claimed there was no authority under the Bill of Rights to exact any stamps. We think the right of all to appeal to the courts for the redress of. grievances is subject to the limitation in the Oonstitution itself, that fees shall be paid in the form of stamps. We find no warrant in the Oonstitution or in our legislation to dispense the appellant from stamping the record, and we can not supply an exception when the law-giver has made none. Constitution, Art. 145; Act No. 136 of 1880, Sec. 1, par. 45, Sec. 10, 22.

In 33d An. 226, an application was made to this court to compel the lower court to send up the record without the stamps on the ground of the poverty of the litigant. This court, without passing on the question of exemption of the litigant from costs, referred the applicant to the lower court. The case decides nothing except the application must be made primarily to the lower court. In this case that application. was made and the issue now is presented to this court, whether it can entertain this appeal on an unstamped record. In our opinion we can not, but in view of appellant’s application to the lower court, and by reason of its order, we think the appellant should be allowed an opportunity to stamp the record if he desires to submit his case for decision.

It is therefore ordered, adjudged and decreed that the appeal be dismissed at the appellant’s cost, unless within ten days he place the requisite stamps on the record of appeal.

Opinion on the Merits

On the Merits.

Miller, J.

The plaintiff alleging that his wife, inheriting a plantation, sold a portion to defendant and formed a partnership with him for the cultivation of the property; that in defendant’s purchas'd *1205he assumed as part of the price one-half of certain debts of the wife, agreeing in the partnership articles that the profits of the plantation should be applied to pay these debts, and as to any residue left unpaid the defendant should be bound for his part. The plaintiff alleges that he administered his wife’s share of the partnership property, made payments out of the profits of the debts stipulated to be paid, and also advanced his own funds for those payments, as well as for other partnership debts; that defendant’s share of the profits was insufficient to pay the half of the debts he had assumed and his part of the partnership debts, and that he is indebted to the extent of plaintiff’s payment of that part of the debts for which defendant was liable. The suit is to recover that indebtedness. The defendant pleaded the prescription of one, three and five years; the exceptions were answered, denying that plaintiff administered his wife’s share of the partnership property; hence had no claims for payments made with her funds, i. e. arising from her share of the partnership property, or that plaintiff ever advanced his own funds for the partnership. The plaintiff’s wife intervened, joining the defendant in controverting the asserted liability of defendant. The judgment was for him an,d plaintiff appeals.

When the partnership was formed in 1878 the plaintiff’s wife was largely indebted, for part of which indebtedness the plantation was mortgaged. The defendant in purchasing part of the plantation agreed to pay as part of the price one-half of the wife’s indebtedness, the half being fixed at four thousand nine hundred and eight dollars. The partnership agreement proposed that all the revenues derived from the cultivation of the property should be applied to pay the wife’s indebtedness subsisting at the date the partnership was formed; that the defendant was to be bound for one-half of any amount left unpaid, and there were the usual stipulations for the equal division of partnership profits and debts. The plaintiff managed the property, attended to the cultivation, shipment of the crops, and received and applied the proceeds. The crops appear to have been meagre. The funds realized from their sale seem to have been applied in payment on the mortgage debt and expenses of the plantation, and at the close of the partnership in 1883 a large portion of the debts expected to be discharged from the crops remained unpaid. We have been unable to determine from the record the contention of plaintiff that he paid the debts of the partnership to the extent of *1206becoming a creditor of the defendant for four thousand four hundred and thirty dollars, the amount for which judgment is claimed. The petition refers to the account annexed. We find an account of crops and payments, another headed Black’s notes, and a mass of testimony referring to disbursements for the partnership. From all these we can not ascertain how the plaintiff makes up the amount he claims nor how it is supported. The record furnishes no basis on which the pecuniary relations of the parties can be adjusted, and hence determining the legal questions, we will remand the case.

The law presumes the paraphernal property of the wife to be under the husband’s administration, and when thus administered the fruits belong to him. Civil Code, Arts. 2383, 2385, 2386.

The defendant denies that the husband so administered, and in this the wife, in her intervention, concurs with defendant. To support their contentions both rely on the fact that the plaintiff was paid for his services in managing the plantation, and it is claimed he was a mere laborer for the partnership. We think the argument of defendant on this point misconceives the fact as well as the legal relations arising out of the fact. The partnership agreement stipulated three hundred dollars per annum should be allowed for labor; that is, all the labor required. It was this three hundred dollars plaintiff was paid, or rather reserved for himself out of the partnership revenues and with which he defrayed all labor charges. The fact that he received this three hundred dollars per annum from the partnership, in which his wife was a partner, did not exclude him from administering the paraphernal interest of one-half in the partnership, or deprive him of the right jure maritia arising out of that administration. The defendant’s brief suggests the plaintiff was a laborer on the plantation before his wife acquired it, and that relation the defendant insists was not changed after the wife acquired, sold one-half the plantation to the defendant and formed the partnership. We think, on the contrary, when the wife acquired the property, and at a later period formed the partnership for its cultivation, the property first, and afterward the partnership interest in respect to it, fell by operation of law under the husband’s administration. The wife may retain the administration of the paraphernalia by appointing the husband her agent. Civil Code, Art. 2384. In this case, no such agency existed. The husband administered solely by virtue of the marital relations. The wife sued *1207to resume the administration of her paraphernal estate, but not till 1888. It is our conclusion, therefore, the plaintiff became entitled to the share of his wife in the partnership revenues, and in the adjustment of defendant’s liability, if any, plaintiff is entitled to charge all payments of partnership debts made with, or from the wife’s share of the partnership funds. If over and above the funds derived from the partnership the husband made payments of the partnership debts during its existence or after its dissolution, he is entitled to recover one-half the amount so paid, with legal interest from the dates of such payments. If these payments should have been on account of the mortgage debt of the wife, that would not entitle the husband to any subrogation to the rights of the mortgage creditor, as there was no conventional or legal subrogation. The husband is not bound for the debt of the wife resting on her separate property, i. e. acquired by inheritance, as in this case, and hence if he paid her mortgage debt or that of the defendant, her partner, there would be no subrogation.

The plaintiff in this case is asserting, in respect to the paraphernal interest of the wife in the partnership, the right of one partner against his copartner. The same rule applies as in ordinary cases for the settlement of the partnership. It is well settled one partner can not sue the other for specific sums. The suit must be for the settlement of the partnership, which of course embraces an inquiry into the assets of the partnership; its liabilities, the profits, the credits in favor of each partner, and the charges against him. On all these elements the balance for or against the partner is ascertained, and judgment given accordingly. Story on Partnership, Secs. 217, 219 et seq; Gridley vs. Connor, 4 Rob. 445; 10 Martin, 433, passim.

It is only for the balance found due on the final settlement that the partner can sue. If either partner has paid mortgage debts which the partnership assumed, or if the share of the profits of either partner has been thus applied, there would be no subrogation in favor of either partner to the mortgage debts. The whole right of the partners are merged in the balance found due on the settlement.

The prescription of three years pleaded by defendant has no application to the demand of plaintiff. That prescription refers to accounts for goods sold, and merchants’ accounts against their principals, and generally to those business or other relations in which *1208accounts are usually rendered. Civil Code, Art. 8588; Act of 1888, No. 7.

The prescription against the actions for moneys advanced or debts paid by one for another, or for the settlement of partnership, is ten, not three or five years. O. C., Art. 3544; 12 Rob. 148.

Reserving our opinion on the question of liability we will remand the case with instructions for the lower court by testimony or the report of experts to ascertain.

1. The amount of the payments, if any, by the plaintiff out of his own funds, i. e. not the funds of the partnership, of the debts of the partnership.

2. The amount of the debt of the partnership, if any, paid by defendant out of the funds of the partnership.

3. The amount of the partnership funds received by each partner.

4. The balance for or against each partner on the adjustment of the partnership affairs.

We assume that as to the amount of the crop proceeds and the mortgage debt of Bowland the record as it now stands affords full information, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the case be remanded as directed and for the purposes stated in this opinion, and that appellee pay costs.

Rehearing

On Application by Plaintiff for Rehearing.

As the record does not furnish the basis to adjust the controversy we will so far modify our previous opinions as to reserve for determination, when the case comes again before us, the questions of interest claimed by plaintiff and whether he is entitled to any subrogation to the mortgage rights of Bowland or the judgment rights of Black and Davis. In making this reservation we are not to be understood as acquiescing in the views of plaintiff’s counsel advanced in support of the application for rehearing, We simply reserve the questions.

It is therefore ordered, adjudged and decreed that the former opinion and decree be modified to the extent stated and the cause be remanded for the purposes stated in the original opinion and decree, and although we think all the testimony needed has been indicated, with the right of the parties to offer, besides, such testimony as they deem pertinent.

Rehearing refused.