The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-05-23
SUPREME COURT DECISIONS.
MONDAY, May 81, 1877.
Present. All the Justices.


Present. All the Justices.
BY JUSTICE MAnR.
No. GG4g-In the matter of the Mechanics 3d.
ciety koohereaux n Co. w. b. II. Flanders,
liquidator and the Factors and Traders Insut-
ance Company Va. b. d. Flanders, Hquidator.
The State Of Louisiana appelsnt.--Appeal from
the Superior Distriot Court, parish OF Dreams.
An application for an extension of the return
day must be made before the expiration OF the
time within which the appeal is returnable, and
when the court, on motion of appellants counsel,
grants an extension in case afber the return day
has been passed, such e1 pdrfe order will not pre-
vent the dismissal of the appeal, when appellee
moves therefor on the ground that the transcript
was not fled In time. Appeal dismissed
No. 5G96-Successon of M. nf. Dower. W. /.
Hodgson, defendant in rule and appellant. -Ap.
peal from tho Second District court, parish Of
Orleans.
The court should have admitted the proof OF
the amount Of the aucti9neers commissions and
Of the expen SEES incurred by him in selling the
property of the succession, and that officer is
not obliged to pay over the gross proceeds Of sale
and TO claim his expenses AMI charges az cred
itor. A judgment creditor of succession has
no right to interfere In ts administration by pro-
yoking an order to have the money, which should
have gone into the hands OF the representative
OF the succession, placed In the hands OF the
Sheriff. Judgment reversed.
No. 6037--B adish johnson We. Marco Popovich
and J. d. Pgniolo, appellants, Appeal from the
Superior District Court, parish OF Orleans.
Where survey 10 to be made in order to locate
and fix the boundaries OF lard in divpu.e, ii must
be by the Parish Surveyor, unless the parties se'
lect some other person. Judgment affirmed.
by JUSTICE DEpLANc.
No. 45--succe ssion of Pauline Menendez. J.
III. Tupery, curator, w. @. Menendez and II. j.
Carbsjal, appellants. Appeal from the Second
District Court, parish of Oreans. A judgment
executed. notwithstanding and wi hout prejudice
TO the right Of appeal. Ordered that the appeal
be maintained M exclusively devolutive appeal.
No. 6062-State Of Louisiana We. Henry Fass-
man. A. W. Cooper intervenor and appellant. -
Appeal from the superior District Court, parish
OF Orleans. On rehearing.
Judgment rendered in suit against an in
dividual several years after bis death. citation In
which ID served upon one OF his executors IL an
absolute nullty, and resort need not be had to q
direct action to annul N. Former decree set
aside and judgment reversed. reserviDg any
rights the State may have against the succession
OF Hy. Fsssman.
ny JUSTICE EaAN.
No. 6e42-F. p. Martinez vs. L. Leiber and
H. Mumme, appellants Appeal from the Fourth
District Court, parish OF Orleans.
Where suit 10 brought for an appealable
amount and no remittitur is entered, testimo-
nial proof Of partial payment after suit brought
will not prevent AN appeal Motion to dismiss re-
fused
No. 6A70--S Samuel Lee, appellant. Va. Theoph. r.
Kendall; Philip Bouron, appellant, vs. Theoph. II.
Kendall. On uppostions OF Peter Msrkey.
peals from the Fifth District Court, pari, b of
Orleans.
The privilege in favor OF the furnisher Of build
ing materials does not rank pre- recorded
mortgage. unless the evidence OF the builders
claim is recorded on the day the contract is en-
tered into. Judgment reversed.
No. 6596--D. II j. ID. Edwards W.. H. J. Ohm.
stead ct ais; J. M Lewis appel ant, l.. j. Ohm
stead ct onsolidated.--Appeals from the
Fourth District Court, parish OF Orleans. Notice
by the workmen aud material men Of their claims
against the contractor served on the owner Of the
building upon which they labor or their mate
rials are used, given after the maturity Of an in
stalment, can have no effect, though its payment
may have been anticipated, they being only sub.
rogated to the rights of the principal contractor
by delivering to the owner their attested accounts
before this maturity of any amount due him under
the contract. Judgment reversed and order Of
distribution fixed.
BY JUSTICE SPENCER.
No. 652i- Phil Marsoudet, executor, ETC., ap-
peant Va. Mrs. Mary Clancy ct al.-Appeal from
the Fifth District Court parish OF Orleans. On
application for rehearing. The existence OF
debts ON thing which may deprive the usu-
fruct Of Its value does not prevent the right OF
ueufruct from existing, and the creditor of the
usufructuary may seize and cell such right. Re-
hearing refused.