New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-01-25
COURT RRCORD.
MONDAY, JANUARY "a, 1876.
United States Circuit Court.

1AAVV1Os
MONDAY, JANUARY "a, 1876
United States Circuit Court.
United States vs.. D. N. Carey ct al
Subpoena duces tecnm issued, directed to d.
NJ. Carey and ]. Walsh, returnsble Janu-
AIRY q.
Present-All the Judges.
The following opinions were read:
BY CHIEF JUSTICE LuDELNG.
No. 1863. Succession of Simon Faulet.-
From the Second District Court. Deceased
died in Carr0llton in July, 1874, and his
property sold, to effect . settlement, to Jean
Duohein, who refused to comply with his
bid On Q rule taken against him there was
Judgment for defendant for want OF J1ris-
diction. Act No. II of 1874, annexing Car
rolltou. is constitutional; State VS.. Daniels.
It added that portion of Jefferson TO Orleans.
When q law is clear and free from am.
biguity the letter of it is not to be dis
regarded under the pretext OF pursuing its
spirit; C. c., Is. Exception to jurisdiction
overruled and case remanded.
No. 1919. Thompson Taylor vs. D. 4: Car
roll, appellant.-From Fifth District Court.
Suit on mortgage note of 1882 81, for prop
erty purchased by Taylor in 1913; sold to
Pinksrd in 1859, and to Carroll in 1864.
Miss Martin. holding the note, sued Tay-
lor and Pinkard, the latter calling Car
roll in warranty, in 1867. The Judgment
against Taylor and Pinkard, and in faver
of Carroll, is sought to be pleaded as res
judicata. The thing demanded is the same
in both cases; the parties are physically
different, but legally identical. Disputes
of men must sometime have an end. Z. e.,
22S6 Plea maintained and judgment re-
versed. Mr. Justice WHY dissents.
No. 1858. Shook & Palmer. appellants. VS..
II Gun
trict Court Motion to dismiss appeal, aileg-
ing the State court was Invested OF jurlsdlc
ton by the filing of the petition and bond OF
defendant for the transfer Of the case to the
Circuit Court of the United States The
application to remove is analogous to plea
to the jurisdiction OF the court, and this
court can revise such judgment or appeal;
| This has been often decreed. ii NJ 440: -
M. 90; 6 N. S., 712; 81 A.. 233; % A, %.
Motion refused.
No, 1910 State ex rel E. B. Mentz, appel
| liant, Va. Charles Clinton, AuditOr-From
Superior District Court. Mandsmus for
salary a. parish judge. Tho injunction in
| No. %, 44O does not affect relator, as ne
was not y party to it. Any valid reason Tor
not issuing the warrant should nave oeen
made the defense. The Auditors duty is
| to issue warrants. Revised Statutes, la,
D. and 3. He is not a custodian OF the
| State moneys, nor is it his duty to pay 1t
| out. See Republican Printing Company vs..
| same. Judgment reversed.
No. 1922 Fred. B, Brand vs.. James
Stafford, appellant:-From Sixth District
Court. In May. 1902. suit was COMMENCES ssa
| in the Fourth District Court; July 8. 1869,
another was brought in the Sixth District
| Court, which was non-snited November 9.
| on a plea of lis pendens filed October y,
1862 July Is, 1869, plaintiff obtained IN
| the Fourth District Court an order for an
other delivery bond. This suit was discon-
tinued in vacation. The present one is to
| uendens The right to annul q judgment
ia not confined to Code of Practice. COZ.
| To obtain relief there must be no laches
a., GAG. The judgment is the result OF
the negligence of the plaintiff. Judgment
reversed, with judgment rejecting plalntin q
| demand.
No. 1897. State vs.. j. D. Nelson, appel,
liant, forgery.-From Superior Criminal
| Court, On sentence of two years hard
labor 1t was proper to refuse contlnu-
auce for attachments for two witnesses,
| one in Mississippi and it not appearingwhere
the others live Proper diligence does not
appear to have been used The Indictment
was properly worded; K. 5. lOoo lOo2.
Judgment affirmed.
peilant.-From Ninth Judicial District.
Verdict of manslaughter and sentence of
ten years. The law does not make ignorance
disqualification in juror. The cases OF
23A Ia, 25 A. 442. where the jurors did not
understand the English language, are not
in point. Judgment affirmed.
NO 1891. State VS.. William Burke, appel.
lant-Murder. From the Superior Criminal
Court. See State VS.. Pete Phillips Case
remanded.
By JUSTICE TALIAFERRO.
| No, 4i25. Joel Alexander VS.. city of New
Orleans, appellant-From the Sixth District
Court. Suit to recover $l3s alleged to have
been paid illegally for taxes, and involves
no question that gives Jurisdiction. Suit
No. 1916. Stephen Bird ct ale. vs.. John
Cockrem, appeilant.-From the Fifth Dis
trict Court. To recover three prOmissory
| notes of $500 each. The only question is
that Of ownership. John Bird was owner
he never parted with them and his execu-
tors are seeking to recover them. Judg
ment affirmed
No. 1886. Heme Mutual Insurance Com
pary, appellant. vs.. B. NJ. Horrell ct al
From Fifth District Court. See No. $50
Judgment affirmed.
BY JUSTICE HOWELL.
No. $3.50. Virginia A. Talbot. widow OF
r. A. Porter. appellant, va. w. ii. Hunt.
testamentary executor, ct al.-From Second
District Court. Suit to annul the will
alleging the marriage OF plaintiff and
deceased legitimated their minor children
Succession of Cabaliero, "a A., 513 This
| case must be determined on the Code OF 1870
the marriage having taken place since then
The children must be legally acknowi
edged &c. C. 1913 and 2OO) by both parents
The notarial act of May %, 1869, five years
before the marriage, ia not sufficient, and
was not Joined in by the mother. 1t &C
knowledges them as natural children. Judg
| mept reversed in favor OF defendants.
No. 6O6S, State ex rel II. Bird vs. Judge
| of Superior District Court.-The judge
having shown no reason why the appeal
should not be granted, the mandamus is
made peremptOry.
No. 1891. Bradish johnson, appellant. vs.
Marco Popovich ct al.-From Superior Dis
trict Court The only matter in controversy
| is bill of an expert for $3.50, less Sic
| credit. Appeal dismissed for want Of jurls
No. 6OlO. Widow j. c. De St. Romes, ap
pellant, vs. CarOndelet Canal and Naviga
tioni Company.-From Superior Distric
Court. The record shows that the tran
script is incomplete by fault of appellant
Appeal dismissed.
BY JUSTICE WYLY.
No. 1880. Peter Dyer VS.. Peter Riley e
al, appellants Fifth District Court
For $40, 900 damages against the mate, who
does not appeal, and I. p. Leathers ane
Anthony Panley for injuries inflicted by
pine knot, January %, 1871. on the steame
Natchez. Verdict of $4,000 The theory o.
the plaintiff that the mate was guarding
barrels of whisky by throwing pine knots
| ia unsupported by the evidence, not that
| ia a part Of his duty. The act was not b,
| orders of the captain, who was in utter igno
rance of the affair. The mate was not act