(102 So.) tering of a storeroom, or junk room, is perhaps an unfortunate hiatus in the law, but it does not warrant our calling a theater, or a storeroom or junk room in a theater, a "warehouse." Our conclusion is that the conviction in this case is illegal. The verdict and sentence appealed from are annulled, and it is ordered that the case be remanded to the district court for further proceedings consistent with the foregoing opinion. BRUNOT, J., dissents. 2. Appeal and error 934 (3)-Confirmation of default held based on sufficient proof. Where record showed that defendant appeared and executed bond for property, that personal service was had and "default made final on proof," and judgment recited that plaintiff proved demands in open court, and that law and evidence was in his favor, it must be presumed that confirmation of default judgment was based on sufficient proof, especially as motion for new trial was overruled. 3. Judgment 126(1)-Default held not to have been proved contrary to custom. Contention of defendant that counsel for plaintiff acted contrary to custom of court in proving up default held without merit, where defendant, on trial of motion, made no effort to prove custom, and trial court, who is presumed to know custom of his court, refused to grant new trial, thus negativing existence of alleged custom. Action by J. H. Stout against J. E. Henderson. Judgment for plaintiff by default. Defendant's motion for new trial was overruled, and he appealed to the Court of Appeal, which reversed the judgment. On plaintiff's writ of review and application for certiorari. Judgment affirmed. Hudson, Potts, Bernstein & Sholars, of Monroe, for applicant. Percy Sandel, of Monroe, for respondent. By the WHOLE COURT. LAND, J. Plaintiff obtained judgment, by confirmation on default, against the defendant in the sum of $1,500, for rental of a drilling rig for three months, at the rate of $500 per month, and for annulment of the contract of lease. A motion for a new trial was filed by defendant and overruled. A suspensive appeal was taken to the Court of Appeal of the Second Circuit, and the judgment of the lower court was reversed: The case is before us under a writ of review. 1. The grounds of the motion for a new trial are substantially that said judgment was proven upon default, when plaintiff's counsel knew and had been advised that an answer would be filed in the case, and that the case would be regularly set for trial; that defendant had a good and valid defense to said suit, as plaintiff's counsel well knew; that the judgment herein is a great injustice to defendant; that no citation or return thereon was annexed to the record or offered in evidence, and that said judgment was confirmed on default, without any proof of citation to defendant. [1, 2] As shown by the record, the defendant made his appearance in the suit by application to bond the property, which had been seized under a writ of sequestration, and executed bond for its release. In addition to this, we find in the record a citation and return showing personal service on defendant, and filed with the clerk on the 24th day of October, 1923, the day upon which the judgment was taken. There is no law requiring that, in confirming a default, the citation and the return of the sheriff thereon should be formally 4. Appeal and error 907 (3)-Judgment pre-offered in evidence. The citation is in the sumed rendered on proper evidence. In absence of note of evidence and statement of fact, it cannot be assumed that judge acted erroneously in confirming judgment on default under evidence, since a judgment must be presumed rendered on proper evidence. 5. Appeal and error 713(1)-Document not filed in Court of Appeal not considered on appeal to Supreme Court. Document entitled "Answer to Appeal," not filed in Court of Appeal, will not be considered by the Supreme Court, although in record. O'Niell, C. J., and Overton, J., dissenting. record, and the return thereon is regular. It was evidently before the trial judge on the confirmation of the default. The record contains no note of evidence or statement of facts. The minute entry, of date October 24, 1923, is as follows: "Default made final on proof. Judgment for plaintiff. Judgment read, signed, and filed. See decree." The judgment in favor of plaintiff recites that he proved his demands in open court, and that the law and the evidence was in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 SO.-13 his favor. Under these circumstances, it must be presumed that the judgment was based upon sufficient proof, especially as the motion for new trial was overruled by the district judge. We are not called upon in this case to review a statement of facts or a note of evidence taken upon the trial, and to decide whether the judgment is sustained by the proof offered. under the evidence adduced before him. A judgment must be presumed to have been rendered on proper evidence. [5] 4. We find in the record a document numbered "2071," entitled "J. H. Stout v. J. E. Henderson," and indorsed "Answer to Appeal." This document is a verification by one of plaintiff's attorneys to the petition filed in the court below. The answer to the appeal appears at the first page of the rec[3] 2. As to the complaint in the motion ord, but was not filed in the Court of Apfor new trial that counsel for plaintiff acted peal. It is not, therefore, before us for concontrary to the custom of the court in prov-sideration. ing up the default, after he had been re- For the reasons assigned, the judgment of quested not to proceed until defendant's the Court of Appeal of the Second Circuit counsel got into the courtroom, it is to be is reversed and set aside, and it is now orobserved that plaintiff's attorney refused and dered that the judgment of the Sixth judideclined to accede to this request. Although cial district court in favor of plaintiff be redefendant had the right on the trial of his instated and affirmed. motion to prove the custom of the court, he offered no evidence for such purpose. Gernon v. Handlin, 19 La. Ann. 25. O'NIELL, C. J., dissents, and hands down reasons. OVERTON, J., dissents, for the reasons given by the Chief Justice. O'NIELL, C. J. (dissenting). It was never intended that the authority of this court to review the judgments of the courts of The trial judge is presumed to be acquainted with the custom of his court. His refusal to grant a new trial in this case negatives the claim of the existence of such custom under the state of facts disclosed in the motion. The minutes show no offer by defendant to file an answer in the case. Defendant does not pretend that counsel for plaintiff appeal-which is a part of our supervisory consented not to confirm the default, and then violated his agreement; nor does defendant intimate that there was any misunderstanding between counsel on the subject. 3. Defendant has not stated the nature of his defense in his application for a new trial. In the recent case of Raphiel v. La. Ry. & Nav. Co., 155 La. 595, 99 So. 461, the court said: "No court may legally set aside and avoid a judgment by default, confirmed in strict conformity with all the requirements of law, in order to afford defendant an opportunity to offer a defense solely on the alleged ground that such action would be in furtherance of justice." [4] It cannot be assumed, in the absence of a note of evidence and of a statement of facts, that the trial judge has acted erroneously in confirming a judgment on default jurisdiction-should ever be used to prevent the other court's exercising its discretion. In this case, to avoid injustice, and as a matter of equity, the Court of Appeal, in the exercise of its discretion, set aside a judgment taken by default, and remanded the case to allow the defendant a hearing on the merits of the case. No injustice could possibly have resulted from such a decree. If the plaintiff was entitled to a judgment, he would have obtained it after a trial of the case on its merits; if not, the decree of the court of appeal would have avoided an injustice. The decree of the Court of Appeal did not end the suit; and it is not such a judgment or decree as was intended to be reviewed by this court. If the Court of Appeal had refused the defendant a hearing, we might be justified in reversing the decree. But we are not warranted, in the exercise of our supervisory jurisdiction, in substituting, for a decree which only tends to do justice, and which cannot possibly do injustice, and which does not violate any law, a decree which merely denies to a party his day in court, and which may therefore be a hardship. The majority opinion and decree in this case is a bad precedent. I respectfully dissent from it. (157 La.) (102 So.) No. 24265. NEBRASKA-TENSAS CO. v. MORITZ. (Syllabus by Editorial Staff.) 1. Taxation 421(1), 764(1)—Description in assessment and tax deed, prior to enumeration of subdivisions, held sufficient. Description in assessment and tax deed, prior to attempted enumeration of subdivisions, giving name of owner, the ward in which the land was located, the number of acres, and the name by which the plantation was known, held, under Act No. 140 of 1890, sufficient. 2. Taxation 421 (1), 734(4)—Assessment and sale of property intended and sufficiently described, not invalidated by mistakes in subsequent enumeration of subdivisions. chaser at said sale. The sale is attacked for a number of reasons set forth in the original and four amended or supplemental petitions, all of which in an elaborate and well-considered opinion of the trial judge were disposed of adversely to the plaintiff, and the plaintiff's suit was dismissed. In this court all of the alleged grounds of nullity are abandoned, except two, viz.: (1) That the property was assessed and sold in globo and in confusion with the property of other persons; and (2) that, the property being easily susceptible of division, the tax collector offered and sold the whole to the highest bidder for what it would bring without having previously offered a less quantity than the whole. The suit was filed less than three years from the registry of the tax deed, hence there is no question of prescription. It appears that in 1860 Henry Marks and Assessment and tax sale as to land suffi- James Ross purchased a tract of land conciently described by giving name of owner, ward taining 1081 acres, and thereafter this tract in which land was located, number of acres, by mesne conveyances, designating the land and the name by which the plantation was own- as Ross and Marks tract or plantation, passed, was not invalidated by a following errone-ed to J. B. Sullivan: In 1904 Sullivan sold ous enumeration of subdivisions, plainly intended merely to more definitely describe the plantation but, not only omitting parts of it, but describing some lands not in it, and belonging to other owners. 3. Taxation 788(5)-Presumed in favor of tax deed that less than whole of land was first offered for sale. It will be presumed in favor of tax deed that less than the whole property was first offered for sale, as required by Const. 1913, art. 233, neither it nor any evidence showing the contrary; it not being required to show that it was so offered, and being, under said article, prima facie evidence of a valid sale. a part of the Marks and Ross plantation containing 600 acres under a specific description to the plaintiff, the Nebraska-Tensas Company. The balance of the original Ross and Marks tract passed by sequent conveyances to the Dunbarton Planting Company, and became a part of the Dunbarton plantation, and was thereafter generally accepted and recognized as forming a part of that plantation. The 600 acres sold to the plaintiff retained the name of "Ross & Marks place," and was so designated in the assessment for the years succeeding plaintiff's purchase O'Niell, C. J., and Brunot, J., dissenting on until sold at tax sale to the defendant in rehearing. Appeal from Tenth Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge. Suit by the Nebraska-Tensas Company against Charles Moritz. From judgment dismissing suit, plaintiff appeals. Affirmed. Claude S. Wilson, of Lincoln, Neb., and Wm. Winans Wall and Edward Dinkelspiel, both of New Orleans, for appellant. Dale, Young & Dale, Gilbert P. Bullis, and Robert Dabney Calhoun, all of Vidalia, for appellee. By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ. 1917. It is admitted that the foregoing description by subdivisions includes land which forms no part of the Ross & Marks place, and which was not owned by the plaintiff company, and it is also admitted that lands were omitted from the specific description which were owned by the plaintiff, and constituted a part of the Ross & Marks place. The assessment on its face also shows a The land was sold by the tax collector in double description in several instances. Like 1917 for the taxes of 1916 assessed against errors in the specific description by subthe Nebraska-Tensas Company as owner. divisions were made in the advertisement The defendant, Charles Moritz, was the pur- and in the tax deed, but the name by which THOMPSON, J. This is a suit to annul a tax sale of a 600-acre tract of land situated in Concordia parish, and known as the Ross and Marks plantation. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the place was known, the number of acres, and the number of the ward in which the land is situated, were given in the advertisement and tax deed the same as in the assessment. It also appears that the tax debtor owned no land in Concordia parish except the 600 acres known as the Ross & Marks place. If the attempted description of the plantation by subdivisions had been omitted from the assessment, there could be no doubt that the assessment otherwise would have been a perfectly legal and valid assessment, and would have furnished a sufficient basis for a legal tax sale. For, as already stated, the assessment gave the name of the true owner; the name by which the plantation was generally known, and the name by which plaintiff purchased, the number of acres comprising said place as designated in plaintiff's deed and all previous assessments since plaintiff's acquisition, and the number of the ward of the parish in which the land is located. All of which indicia, aided and supported by proof of the fact that the tax debtor owned no other lands in Concordia parish, was a sufficient description to identify the land and to answer every requirement of the law. [1] Act 140 of 1890 provides that, for the purpose of taxation and tax sales, it shall be sufficient to assess and describe all property according to such description as will reasonably identify the property assessed, such as designating the tract or lot by the name by which it is commonly known, or by the dimensions, or description, or name given in the act translating the ownership thereof, or by such other further description as may furnish the means of reasonable identification. The act further provides: "Section 3. * That no assessment or tax sale shall be set aside or annulled for any error in description or measurement of the property assessed, in the name of the owner, provided the property assessed or sold can be reasonably identified. "Section 4. * * * That the tax sale shall convey and the purchaser shall take the entirety of the property, neither more or less, intended to be assessed and sold and such as it was owned by the delinquent taxpayer, regardless of any error in the dimensions or description of the property assessed and sold." A quite similar assessment was considered in the case of the Board of Commissioners v. Concordia Land & Timber Co., 141 La. 265, 74 So. 928, and the court on rehearing had this to say: "Our opinion is that, for the purpose of a valid assessment and sale for taxes, the description of the land, stating the name of its owner, the name by which the tract was generally known, the names of its former owners, the ward in which it was situated, and its area, within a fraction of an acre, was a sufficient description to identify the land belonging to the party in whose name it was assessed." In view of the statute of 1890 and the foregoing decision, and others along the same line, which it is unnecessary to refer to, we think it is clear that the description in the assessment and in the deed was sufficient to furnish all means of a ready and easy identification of the property intended to be assessed and sold. The evidence in the record shows that the defendant, shortly after his purchase at tax sale, took actual possession of the plantation and was in such possession when this suit was filed, and this fact is admitted in paragraph 3 of plaintiff's third amended petition. This taking of possession clearly indicates that the description in the assessment and deed furnished the means of identification. Weber v. Martinez, 125 La. 668, 51 So. 679. [2] The question then arises: Did the erroneous inclusion in that part of the assessment describing the land by subdivisions of lands belonging to other persons and not forming a part of the plantation intended to be assessed, strike with nullity the entire assessment and render void the tax sale based on that assessment? There can hardly be any doubt of the invalidity of an assessment as a basis for a valid tax sale, when two or more separate and distinct tracts of land belonging to different owners are brought together and merged into one assessment and sold in globo. The cases cited by learned counsel for plaintiff support their contention under the peculiar conditions and circumstances of the cases in which that doctrine was announced. "Distinct pieces of property, belonging to different persons, between whom there is no privity of estate, cannot legally be included in the same assessment in the name of one of the owners; nor can the property of such owner be sold for the tax so assessed conHowcott fusedly with that of the others." & Ransdell v. Board, 46 La. Ann. 322, 14 So. 848; Pitre v. Haas, 110 La. 176, 34 So. 361; Waggoner v. Maumus, 112 La. 231, 36 So. 332; Head v. Howcott Land Co., 119 La. 335, 44 So. 117. have no application to the assessment and But, in our opinion, the rule stated can tax sale in the instant case. The assessment here is entirely dissimilar from the In those assessment in the cases cited. cases there was an unmistakable merging of separate and distinct tracts belonging to different owners, and it is manifest that the inclusion of those tracts, which did not belong to the owner assessed, was not for the purpose of identifying or describing the lands that did belong to the person assessed, but as independent and separate tracts to contribute their proportion of the taxes assessed as a whole. But under the facts of (102 So.) this case it can hardly be properly said | tiff is without reason to complain, as its that there was a merger of separate and property has only been sold for the taxes distinct tracts belonging to different own- assessed and due by it, and not for any ers in the assessment and sale of plaintiff's taxes due on other lands. land within the intent and meaning of the doctrine referred to. is repeated in section 11, art. 10, Constitution of 1921, which requires that the tax collector should first offer a less quantity than the whole property for the taxes and [3] The second contention of counsel is based on the provision contained in article The property assessed and sold-the prop-233 of the Constitution of 1913, and which erty that obviously was intended to be described in the assessment and sold-was the Ross & Marks plantation, nothing more and nothing less. There can be no mistake about that fact. There was nothing mislead-costs before offering the whole of said proping in the description of the thing intended to be assessed and sold. The erroneous inclusion of the subdivisions which happen to belong to other persons, and which did not belong to the plantation was, to say the most, purely accidental and superinduced by the effort to illustrate and more definitely define and accurately describe the thing that was the object of the assessment, to wit, the Ross & Marks plantation. The asssessment plainly evidences this fact. After having given the name of the owner, the name of the plantation, the number of acres comprising that plantation, and the ward in which the land was located, the assessing officer then proceeded with the view, not to assess separate and distinct tracts belonging to other persons, but to describe the plantation by subdivisions, and in doing so he unintentionally gathered in some subdivisions which did not belong to the place he was attempting to define, and omitted some acreage that did belong to it. Under these circumstances we do not think that it can with any degree of reason be said that the assessment comes within the rule contended for by plaintiff. The assessment cannot be regarded as the assessment of separate and distinct tracts belonging to different persons confusedly with the thing intended to be assessed and was in fact assessed, viz. the Ross & Marks plantation. If the lands included in the specific description which did not belong to the place were eliminated, and those belonging to the plantation were to be included in the assessment, and the double descriptions were corrected, then the acreage assessed would practically be the same as that comprised in the plantation, viz. 600 acres. As we have heretofore said, the people who own the tracts erroneously included in the assessment, and which have become identified with the Dunbarton plantation, are not complaining because they have all the land which was detached from the original Ross & Marks place, and have paid the taxes on the same as a part of the said Dunbarton plantation, but they paid no taxes on any of the Ross & Marks place. The defendant in this case under his tax purchase is not claiming any of said lands, and nothing more nor beyond the 600 acres presently forming the Ross & Marks place. The plain erty; it being contended that the require- The "Charles Moritz being the last and highest bidder, the said property was adjudicated to the said Charles Moritz, his heirs and assigns." Under the Constitution of 1913, art. 233, all deeds made by tax collectors shall be received by the courts in evidence as prima facie valid sales. There is nothing in the deed and no evidence in the record to show that the tax collector did not offer a less quantity than the whole of the land for the taxes and cost before adjudicating the whole of the said property to Moritz as the last and highest bidder. In the absence of any such proof the presumption is that the tax collector performed his duty and followed the requirements of the law. The law does not require that the prescribed manner of offering property for sale for taxes should be recited in the tax deed. Counsel rely on several decisions of this court as sustaining the nullity of the adjudication and sale on the ground last stated. The first case is Norres v. Hays, 44 La. Ann. 912, 11 So. 463. In that case it was said that "the tax deed also shows that said article [210] * * was violated in the sale of the property in block," but there is nothing in the statement of the case to show what the recitals of the deed were. nor in what manner the sale in block was a violation of the constitutional article. * The next case is Land & Improvement Co. v. Fasnacht, 47 La. Ann. 1296, 17 So. 800. The court found that no specific quantity was offered, and no serious attempt was made to comply with the requirement of selling the least quantity. The third case is Bristol v. Murff, 49 La. Ann. 358, 21 So. 519, and the court seems to have been of the opinion that the tax deed should contain a recital of compliance with article 210 of the Constitution. The court said: "The tax deed is prima facie evidence of a valid sale. Its recitals, however, are not conclusive, but may be contradicted as to the essentials required for a valid tax sale. One of these essentials is that the tax collector shall |