New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-05-16
aler 0rlsa,ts Republican,
OFFICIAL JOURNAL Of THE UNITED STATES
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OFFICIAL JOURNAL OF NEW ORLEANS
THE COURTS.
Eighth District Contradictions by Judge
Dibble.

IL
leans, under a contract with the City o
jefferson, Judge Dibble has given plain
tifs Judgment for $29l9, in accordanc,
with the report of an expert appointed t.
measure the said work.
In the case of the State Eek rel. A S
Collins and John Tabor VS.. the Mayor anC
Council of New Orleans, applying for
mandamus to compel the payment of war
rant in favor of the Republican, StdndarC
for S7562, in settlement for an alleged un
paid claim for publishing, based upon a
resolution OF the Council of the late City OF
Jefferson approved March Is, 1870, Judge
Dibble delivered written opinion in which
he refuses the writ, saying. in concluding,
''that the writ of mandamus should not be
used for the purpose of settling disputed
counts"
In passing upon this case the Judge also
says: These REALTORS claim under a reso-
luton passed by the Council of the City of
Jefferson. The resolution is not a nego-
table instrument, and therefore, although
they may become the purchasers of the in
terest of the one for whose benefit it was
passed, they have no greater rights under it
than the immediate beneficiary. He or they
would, doubtless, have had the right to
compel the Controller to warrant for the
amount had that corporation continued,
unless the Council of Jefferson had first re-
pealed the resolution.
In that event he or they would certainly
have had no remedy by mandamus, but
would have been obliged to resort to an or
binary action and to suit for damages, if in
jury had been thus suspended.
New Orleans has become charged with
the debts of the late City of Jefferson. The
creditors of that corporation have the same
right against their original debtor, but no
greater. They must resort to an ordinary
suit.
In the case of Ed. Thompson, S. Williams
eft ais vs. the Union Benevolent Association
No. 4, and S. Williams, Ed. Thompson ct al
vs. the same, Judge Dibble has rendered an
opinion dismissing both suits at plaintiffs
costs.
The plaintiffs in these cases had some
cause of complaint, and sued for the disso-
luton of the society and a division of its
assets.
From the evidence, plaintiffs had been ex-
PEELED from the society before these pro-
ceedings were brought; consequently, they
have no standing in court TO sue for a disso-
luton of the society.
If they were improperly expelled their
remedy is by a writ of mandamus to be re-
instated as citizens; they can not sue for its
dissolution. The Attorney General alone
can take such proceedings but were they
members of the society they would have
cause of action.
A Mandamus Upon the Auditor.
Messrs. Livingston & Guthrie have ap-
piled to the Eighth District Court, judge
Dibble, to obtain a mandamus to compel
the State Auditor to take up the warrants
of the President of the Board of Public
Works, issued in behalf of plaintiffs for
work alleged to be done under contract
with the State, in clearing out the Bayou
Bartholomew, and to issue his warrants in
lieu thereof upon the State Treasurer The
bill under which plaintiffs claim is the bill
known as the Bayou Bartholomew bill, con-
corning which Governor Warmoth and Sec
rotary of State BOvee recently had a cor
respondence, the Governor holding the po-
sitiOn that the bill will not become law
until the first day of the next session of the
Legislature, and the Secretary of State hold
ing that it is already law, he having re-
celved the same from the Governors office
and promulgated it in the columns of the |
official journal.
The bill was sent to the Governor at his |
private residence in time for it to have be- |
come law before the adjournment of the |
General Assembly, but the Governor holds |
that be can only receive the bill officially at |
the State House |
The Crescent City Waterworks is bill |
the history of which is similar to this bill. |
save the fact that the latter has never been
sent in to the office of the Secretary of |
the State from the Governors office.
Sixth District Court.
Mr.. Cohen, broker of this city. has sued
one of our city banks, claiming $4,000. He
alleges that he has done business with said
bank, by deposits and otherwise, for some
time. That on the tenth of Nav. he de-
posted the sum of $3.50 in checks, etc, and
irew against the same that day a check for
$780, which check, being presented by
bird party, was refused payment
He alleges that such action of the officers
If the bank has seriously injured, not only
lis credit to great degree, but has inflicted
serious injury TO his health, feelings, etc,
or which he thinks he is entitled to the
damages above claimed.
r. z. Landry VS.. Cecil Legare and Felix
has entered suit against
the former of whom is a
esident Of this city, and the latter Sheriff
# the parish of Ascension, claiming $50, 900
or damages done to his plantation in the
aid parish.
He sets up that on the eighteenth day
f February, 1871, Legare caused an order
f seizure and sale to issue from the Dis
riot Court of Ascension, causing the said
heritf to seize the plantation in question.
hat during the time of the seizure he was
lot permitted to cultivate his place, and in
CueTtOl Ine crop tLe |
ear will be lost, and that the value of the
plantation has been deprecated in conse-
uence, and that other damages have been
ccasioned, for which he prays the defend |
nts may be compelled to pay him $4,000,
S above set forth.
eventh District Court-Decision of Judge
COllens-The Question of Representa-
ton of Minor CO-heirs-Inez PeyrORx,
Wife, etc., VS.. Ann Louise COurcelles,
ct ais.
In rendering an opinion in this case,
Judge Collens says: In the pro ceilings
+ the partition of the succession of Aimee
'arnaby, wife of P. o. Peyroux, instituted
V p. 0. PeyrouX, administrator and CO.
cir, the minor co-heirs were represented.
hey were represented by their under-tutor,
ecause the administrator and co-heir, suing
hem for this partition, was also their tutor
This representation by the under-tutor
-as under article 30I Civil Code (275 Rayl,
ccording to law. But it is alleged that in
partition suit the several minor cO-heirs
aust be represented by special tutors, ac-
ording to article 1891 Civil Code (1369 Ray;
nd since they were not so represented, the ;
ale was null. | do not so understand the
Nv. Article 30l gives the general rule, and
rticle 1891 provides for an eXception-an
ppointment in particular circumstances,
IL: If there are several minors who have
pposite interests" etc. The Judge of the I
rebate court in each instance decides on J
ne necessity Of such an appointment
nd orders, if in his opinion the case re- S
uires it. If he does not so order, legal !
resumption arises in favor of innocent third
ersons acquiring title by virtue of his .iudg- i
tent ordering the partition and sale Civil /
ode articles 2234, 22S7 and 22SS. Nothing L
n the face of the papers on Judgment a
hOws that the minors in this instance had !
pposite interests yet long after the sale j
he Judge of the Probate Court annulled |