The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1868-12-01
ented to her by Rollins, in the purchase of the

There Is an allegation In plaintin 9 petition tnf
funds but there is no sleg alton that she had the
administration Of her paraphernal funfs with
which she bought the property. She does not
claim 10 have had the separate administration OF
the 5000 from the time Rollins gave 1t to her 10
1853, till the time of the purchase 10 May, 1856,
and there Is no proof on this material point.
She was a married woman, not separate 10 pro-
perry and the community OF acquets and gains
existed between her and her hu band, of which
be was the head and master. All property &C.
CURED during marriage, whether in the name OF
the ole or other of the spouses, Is considered
community, and the debts contracted during mar
rage belong to the community, or are charsesole
to it. &C. c. 2S7l. 2s72.) This is the general
rule. This court has often recognized an ex-
ception TO this general rule in relation to the pur-
chase of property IN the name OF the wife, wnen
it is paid for with her parsphernal funds, u1aer
her separate administration. or when II Ii received
as a dGtire en- payment made TO Der by DEBTOR
for a sepaI ate and paraphernal claim Of hers, the
property does not belong TO the community, but
she becomes the separate and exclusive owner OF
itn az r. $40, $50, ISL and $50 and the suthori-
ties there cited.)'
We fully recognize the right of the wife to in
vest her parapbernal funds while 10 the admins
traiion eff her paraphernal property, as legiti
mate investment of money under her separate
CONTROL but in order to acquire separate or para
phernal property by purchase during the mar
rage the wife must show that she has purchased
the same in her own name with psrsphernal
We do not think The plaintiff in this case has es
tsblished this material fact Indeed, under the
alterations of Ter petition she could not introduce
proof If obliRt 10 that she was administering her
| parapi ernal funds separately from her husband.
The mere declaration in the act OF sale does not
relieve the wife from the burden of proving that
| the purchase was made with her separate funds
under her own administration. Is A. l26. We
are of opinion that the note executed by the wife
to the vendor for $50, the balance OF the price,
| was a community debt. G. G. 2312. And from
| the law and the evidence we are bound to con-
clude that the property involved In THIS sur
belongs to the community and is not the separate
or laraphernal property OF plaintiff, and that the
| Injunction must be dissolved.
| 1t lie therefore ordered, adjudged and decreed
| that the Judgment Of the court below be avoided
and annulled, and it is now ordered that there be
Judgment in favor of defendant, dissolving the in
junction taken out by plaintiff in this case at the
costs of plaintiff. g.
BY ASSOCIATE JUSTICE W. W. HOWE.
| No. lOS2-Abraham C. Myers, testamentary ex-
ecutor. etc., VS.. John Mitchell. Appeal from the
inre I.sses oSu June, 1885, judgment was rem
| dered in this in favor of the plaintiff by the
court a qua for the sum OF $500 with per cent
interest from the 2lst February, 1862, until paid
and costs. On the 18th June, 1866. the defendant
| appealed, and on the 18th November, 1866. the
| transcript of appeal was filed in this court. The
| plaintiff now moves to dismiss the appeal on the
ground that the amount of the Judgment is not suf
| fcient 10 confer jurisdiction on this court
| By the Constitution of 1865, Art. "a, the iurs-
| dction of the Supreme Court in civil matters ex-
| tends to "all cases when the matter in dispute
| shall exceed $500, and to all cases in which the
consttutionsity legality Of any tax. toll; or i'm
| post of any kind OF nature whatever. or any fine,
| forfeiture or penalty imposed by municipal cor
| porstion shall be in contestation, whatever may
| be the amount thereof"
| 1t is admitted that the case at bar being an or.
| binary judgment On promssory notes is not one
| of those included in this enumeration, bat It is
commended on behalf of the appellant that inasmuch
be bad the right to appeal on the 18th june 1866
and took his appeal bis rights as an appellant be-
4 came "vested rights" which the Contitutoa of
1865 could not lawfully take away.
In our opinion this view is erroneous. Even II
| q vested right exists, as claimed, (which we are
| by no means ready to sdmit,) il may have been
| lawfully taken away by new Constitution, pro-
vided ihe obligations of contract were not
impaired.
the State in this regard if In existence, would be
found in the Constitution of the United states !;
but that instrument will be searched In vain for
any such limitation on the popular viii.
| State Constitution may be retrospective in
| its operation, and may dvest vested rights; yet,
if il do not impair the obligations of q contract,
| or partake Of the character of er post fdcto
law 1t will not conrsyene the Constitution OF the
| United States.
satierlee vs. Matthewsou, II Peters, $50; Chas.
River Bulge VS.. Warren Bridge, II Peters, 40
III
| tons contained in the Constitution, Art. no,
| respecting vested rights, addressed only to
the government organized under the Constitution.
and cannot be deemed to control the people In
framing and adopting the Constitution itself.
| Ii has been urged again that the right to prose
| cute the appeal in this and similar cases, has been
preserved by articles lao and Isl OF the new Con,
stitution, the former of which provides that al
| rights, actions, prosecutions, clams, contracts
| and all laws in force at the time of the adoption
of this Constitution, and not inconsistent there
with, shall continue if it had not been adopted
etc.. etc. and the letter OF which directs that the
| General Assembly shall provide for the remova
of causes now pending in the courts Of this State
to courts created by and under this Constitution
We cannot assent to this doctrine, but on the con
| trary we think it clear that the right OF appea
in this case is one that is :" Inconsistent with thu
terms of the new Constitution, and is not contIn
| ued by article 149, and that article Isl canno
| cave 1t. II is true that by the latter article thu
| Legislature is required to provide for the remova
of causes pending in the late Supreme Court y
| the present Supreme Court and has done SO bn
neither this Injunction nor its fulhllment seem 4
effect the jurisdiction of this court. The cause
. have been transferred, the records are on fle Il
this court. and it seems clear that the question
i, | whether the causes shall be tried or dlsmisse
a | must be determined by article "a.
IL is indeed urged in the discussion OF this sub
2 iect that if this court has no jurisdiction b!
reason of the insuficiency Of the amount 10 dis
puie, il can make no order In the case, and there
fore cannot make an order dismissing the appeal
}, | This theory is ingenious but unsound. cour
n | can always say that il has no jurisdiction OF
case and dismiss IL with costs. In this respect "
J. can perceive no difference between case trans
|, ferred TO us by an act of the Legislature in con
J, | psnce with the constitutional command, and
!, case brought to us by an appellant since the OF
b | ganizaton Of this court.
,. 1t is therefore ordered that the appeal herei
II | be dismissed with costs.
BY ASSOCIATE JUSTICE W. W. HOWE.
2 No. l549-John G. McCurrsy Co. va. Nj
: | Cutcheon Howell-Appeal from the Third Dl
= | trict court of New Orleans. For the reason
given In the case of Meyers vs.. Mitchell, the m
- | ton mast be granted.
VI II is therefore ordered that the appeal here
. | be dismissed with costs.
: nnn s1GG 9 a. rtIth v ~ Ma
Orlesns-Appeal from Fifth District Court of Ne
e | Orleans.
% For the reasons announced in the case of Mye
VS.. Mitchell. it is ordered adjudged and decree
that this appeal be dismissed ut the costs Of q
ID pellaDt.
BY ASSOCIATE JUSTICE TALIAFERRo.
- No. lOsl-Abraham c. Myers executor Of
,, F. Twiggs VS.. VIM. J. Castell-Appeal from Il
~ Third District Court New Orleans.