(102 So.) "The officer who served the summons swore that he could not locate the street number men tioned in same. As no other information could be furnished, it was useless to wait longer." To this ruling defendant duly excepted. The return on the subpoena was made in an irregular manner. It should have been made on the subpoena itself, and should have been signed officially by the officer to whom it was delivered for service. However, brushing this aside, and accepting the return as made, for the purposes of this case, still the return is not a proper one, in that it does not comply with the law, because it fails to show that the officer made the serious effort, expected of him, to serve the subpoena. All that the return shows is that the officer found no such street number as the one given by defendant. It does not appear that he made diligent inquiry as to the whereabouts of the witness, of those residing in the locality in which, if such a street number had existed, it might have been expected to have been found. In fact, it does 'not appear that the officer made any inquiry whatever as to the whereabouts of the witness; nor does the return even show that he timely conveyed to defendant the fact that he could find no such number as 231 Peabody street, though, as defendant resided in the city of Shreveport, in which city the officer was on duty, he easily could have done this, and thereby have given defendant an opportunity to have ascertained the corThe return rect address of the witness. should have shown facts sufficient to have enabled the court to have said that the officer had made an earnest attempt to serve the subpoena before the court would have been justified in ordering defendant to trial in the absence of his witness. A similar ruling was made in State v. Boitreaux, 31 La. Ann. 188, and in that case it was also said that: "When-to procure the attendance of his witnesses the prisoner has, in proper time, ordered subpoenas to issue, he cannot be compelled to apply for attachments, swear to the facts which he intends to prove by them, or go to trial in their absence, until an earnest and fruitless attempt has been made to bring them in court." (Italics ours.) It is true that the Boitreaux Case, in which the ruling referred to was made, and from which the foregoing excerpt is taken, is a case in which the defendant was forced to trial on a capital charge, and that the court lays some stress on that fact in passing upon the effort that should be made to serve process on witnesses for the defense; still, while that is true, the same general principles as those invoked in that case apply even in a misdemeanor case; that is to say, the return must show facts justifying the conclusion that a serious effort was made to serve the process. It is only by requiring the return to show such facts that the constitutional guaranty, that in all criminal cases the accused shall have compulsory process for obtaining witnesses in his favor, may be discharged or enforced. In the case at bar, the return shows no such facts. In fact, while manifestly not so intended, the return shows but little more than a mere pretense at making service. It is true that the trial judge, after stating what the officer swore to, in making his informal return, states that, "as no other information could be furnished, it was useless to wait longer." However, as defendant evidently did not know of the failure to make service until the case was called for trial, it is not strange that he could not give, at that time, any further information as to the whereabouts of the witness, and, in so far as relates to making inquiry of others, the informal return made by the officer does not show that he inquired of them, and therefore the conclusion that no other information could be furnished is hardly justified. It may be added that the record presents another bill of exceptions, designated therein, as bill No. 2. We considered that bill, in consultation, but find no merit in it. For the reasons assigned, the verdict and the sentence appealed from are annulled and set aside, and the case remanded to be proceeded with according to law. No. 26821. (157 La.) CITY OF SHREVEPORT v. COPOLA. (Supreme Court of Louisiana. Nov. 3, 1924.) Appeal from City Court of Shreveport; Da vid B. Samuel, Judge. Charles F. Crane, of Shreveport, for appellant. Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., and James U. Galloway, City Atty.,. of Shreveport, for appellee. OVERTON, J. The prosecution in this case is under an ordinance passed by the city of Shreveport. With this exception, the issues are identical with those in the State of Louisiana v. Frank Copola (No. 26820) 102 So. 82, this day decided. For the reasons there assigned, the verdict and the sentence appealed from are annulled and set aside, and the case remanded to be proceeded with according to law. (157 La.) No. 26190. CAVANAH v. EBERT et al. Iary 10, 1913, there appears the following notation: "It is understood and agreed that the concrete sidewalk in front of this property is to (Supreme Court of Louisiana. Nov. 3, 1924.) be laid at no expense to the purchaser. All (Syllabus by Editorial Staff.) I. Principal and agent 69 (8)-President of owner's former agent held not precluded from acquiring title at tax sale. Where agreement by corporate vendor to collect rents and apply them to payment of taxes ceased when deed was executed, transferring lots to purchaser, and property was sold at tax sale two years after termination of the agency, vendor's president could purchase it either directly or through another. 2. Taxation 761-Failure to correct form of deed to show location of court building at time of sale held not to annul tax sale. That in making tax deed old form was used without correcting it to show location of building in which civil district court held sessions, and at door of which sale was made, afforded no reason to annul sale. 3. Taxation 660-That sale of property for taxes was not advertised in official journal held immaterial. Under Act No. 49 of 1877, § 15, Act No. 104 of 1878, and Act No. 33 of 1916, as to judicial sales in Parish of Orleans, and Act No. 315 of 1910, § 1, as to sales for taxes, tax sale need not be advertised in official journal, and is not void because it does not appear in what paper it was advertised; proof of sale being under Rev. St. 1870, § 3391, prima facie evidence that legal advertisements were regularly made. money received from rentals shall be prorated for taxes." And at the foot of the contract bearing date February 15, 1913, there appears another notation, reading as follows: "The paving of Egania street sidewalk to be paved at no expense to purchaser, and rents to be applied to taxes." On April 3, 1917, something over four years after the contracts to sell had been entered into, the New Orleans Home-Site Company, Ltd., joined by Isabelle D. Miller as one of the vendors, transferred the foregoing lots to Warren with full warranty of title. the lots were assessed to Warren for the taxIn 1918, the year following this transfer, es of 1918. When the taxes matured War ren failed to pay them, and, as his address was unknown to the tax collector, the latter notified him by publication in the New Orleans States of his intention to advertise and sell sufficient of the property to pay the delinquent taxes due thereon, together with the penalties and costs, unless the same should be paid. Warren failed to pay after this notice was given, and the sheriff therefore advertised the property for sale. When the property was being advertised for sale John W. Cavanah, the plaintiff here Appeal from Civil District Court, Parish in, approached Joseph F. Ebert, who was of Orleans; Percy Saint, Judge. Action by John W. Cavanah against Joseph F. Ebert, individually, and another, in which S. Timothy Warren intervened. Judgment for plaintiff, and intervener appeals. Affirmed. then president of the Third District Land Company, Ltd., and requested him to buy the property assessed to Warren for him, as well as various other pieces of property that were then being advertised for sale for the taxes due thereon. Ebert complied with Cavanah's request to the extent of bidding the Joseph Harris Brewer, of New Orleans, property in, though he did so in the name of for appellant Samuel T. Warren. Benjamin Ory, of New Orleans, for lee John W. Cavanah. the Third District Land Company, the comappel-pany of which he was president. OVERTON, J. On February 10, 1913, the New Orleans Home-Site Company Ltd., agreed to sell, partly for cash and partly on credit, to S. Timothy Warren, lots 22 to 25, inclusive, of block 456 in the Third district of New Orleans, and on the 15th of the same month the same company entered into a contract to sell to Warren, partly for cash and partly on credit, lots 9 to 16, inclusive, of block 678, bounded by Claiborne avenue, North Robertson, Egania, and Lazard streets. In each contract the New Orleans Home-Site Company, Ltd., agreed to convey title to the property therein described upon the payment of a specified part of the purchase price. At the foot of the contract of date Febru Some time after the sale Cavanah made demand on Ebert, and on the company of which Ebert was president, to deed the property to him, but both refused on the ground that there were certain sums due them for taxes paid and services rendered, and that so long as these sums remained unpaid they did not feel called upon to transfer the property. Due to the refusal of Ebert and of the Third District Land Company, Ltd., to make the transfer, Cavanah instituted this suit against them to recover the property. Sometime after the institution of the suit Warren, a resident of the Republic of Honduras, intervened for the purpose of obtaining a decree declaring the property to be his. After due trial, judgment was rendered by (102 So.) the court below, rejecting the intervention | front door of the courthouse, in which the of Warren, and recognizing Cavanah as the civil district court is held, being in St. Anowner of the lots in controversy, but order- thony's alley, in the second district of this ing him to pay Ebert the sums claimed by city," when, as a matter of fact, in 1919, the latter for services rendered in purchasing when the sale took place, the civil district the property and for taxes paid by him. court held its sessions in the New Court Ebert and the Third District Land Company Building on Royal street between Conti and were apparently satisfied with the judgment St. Louis streets. rendered, and for that reason, we take it, have not appealed. The intervener, Warren, has alone appealed. Opinion. [1] The chief ground for the intervention, filed by Warren, is that Cavanah, as president of the New Orleans Home-Site Company, Ltd., was his agent, charged with the duty of administering the property in controversy, and of seeing that the taxes due thereon were paid, and hence that the purchase of the property by Cavanah through another was in violation of the agency, and in fraud of his rights. The civil district court was once held in a building located on St. Anthony's alley, and it is manifest that in making the deed an old form was used, without correcting it so as to show the location of the building in which the civil district court held its sessions at the time of the sale. The failure to correct the form used affords no reason to annul the sale. [3] Warren also contends that the tax sale is null for the reason that it does not appear that it was advertised in the official journal, and for the further reason that it does not appear in what newspaper the sale was advertised. The tax collector's deed recites that the property was advertised for sale according to law, in the manner provided for judicial sales, in the English langħage, in a newspaper published daily in the city of New Orleans, but leaves the name of the paper blank. It does not appear outside of the deed in what paper the advertisement was made. It is clear that, if Warren has established this ground of his intervention, the sale made by the tax collector would be null, for, if Cavanah, either personally, or as president of the New Orleans Home-Site Company, Ltd., was Warren's agent, charged with the duty of administering the property and of seeing The law provides that property to be sold that the taxes due thereon were paid, he was for taxes shall be advertised for sale in the clearly without right to permit his princi- manner provided for judicial sales. Section pal's property to go to tax sale, and either | 1 of Act 315 of 1910. The law does not predirectly or through a person interposed pur- scribe that judicial sales in the parish of Orchase it at such sale. The evidence, how-leans shall be advertised in the official journal. ever, does not establish that Cavanah individ- but provides that they shall be advertised ually, or as president of the New Orleans in a daily newspaper published in the EngHome-Site Company, Ltd., was Warren's agent, for any purpose, at the time of the tax sale. True, when Warren agreed to purchase the property from the New Orleans Home-Site Company, of which Cavanah was president, that Company agreed to collect the rents, and to apply them to the payment of the taxes, but the record establishes that the agreement to collect the rents, and to thus apply them, ceased when in 1917, some four years after Warren had entered into the contract to purchase, the deed was executed under that contract, transferring the lots in controversy to him. Hence, when the property was offered at tax sale some two years after the termination of the agency, there was no reason why Cavanah could not purchase the property at tax sale, either directly or through another. We therefore conclude that Warren's main ground of attack cannot be sustained. [2] Warren also contends that the tax sale is null for the following reasons: The tax collector's deed recites that the property was advertised to be sold at the "principal lish language. Section 15 of Act 49 of 1877, § 3591. In the absence of any evidence to the contrary the presumption therefore is that the property was regularly advertised. Finding no error in the judgment appealed from, it is affirmed. Judgment affirmed. (157 La.) No. 26489. 138 La. 714, 70 South. 621, interpreted as holding that the courts have no authority to STATE ex rel. CITY OF OAKDALE V. MIS-question the necessity for or the reasonable SOURI PAC. R. CO. ness of a municipal ordinance of this kind. It is said that the doctrine of the Lake (Supreme Court of Louisiana. Nov. 3, 1924.) Charles Case is obsolete, because the ordi (Syllabus by Editorial Staff.) nance in that case was enacted under authority of Act 35 of 1912, which has been amend1. Municipal corporations 122 (2)-Burdened by Act 248 of 1916, so as to reserve to the on railroad to show ordinance is unnecessary railroad companies the right "to appeal to or unreasonable. the courts to test the necessity for and the reasonableness of any ordinance passed by any municipality under the power and authority granted by this act." Under Act No. 248 of 1916, amending Act No. 35 of 1912, so as to reserve to railroad companies right of appeal to courts to test necessity for and reasonableness of municipal ordinances enacted thereunder, burden is on company to show that ordinance complained of is unnecessary or unreasonable. 2. Railroads 238 Ordinance requiring street lights at crossings held not unnecessary or unreasonable. The judgment appealed from is supported by a very able written opinion. It is not founded upon the idea that the courts cannot or will not look into the question of necessity for or reasonableness of a municipal ordinance enacted under authority of Ordinance requiring railroad to install and Act 248 of 1916. On the contrary, the dismaintain street lights at crossings in center of trict judge went very carefully and thorcity, where several trains were switched night-oughly into the matter, and heard all of ly, held not shown to be unnecessary or unreasonable, though no regular train was scheduled to pass through city at night. Appeal from ifteenth Judicial District Court, Parish of Allen; Thos. F. Porter, Jr., Judge. Mandamus by the State of Louisiana, on the relation of the City of Oakdale, against the Missouri Pacific Railroad Company. Judgment for relator, and defendant appeals. Affirmed. Hudson, Potts, Bernstein & Sholars, of Monroe, for appellant. C. D. Reed, City Atty., of Oakdale (J. A. Williams, of Colfax, of counsel), for appel lee. O'NIELL, C. J. The defendant has appealed from a judgment in a mandamus proceeding ordering the company to install and maintain a street light at the railroad crossing on each of three avenues in the city of Oakdale. They are Fifth avenue, Sixth avenue and Seventh avenue. Appellant is willing to install and maintain a light at the crossing on Sixth avenue, which is the principal business thoroughfare of the city, but contends that, in so far as the ordinance requires a light on the crossing on Fifth avenue and on Seventh avenue, it is unnecessary and unreasonable. the testimony that was offered on the question of necessity for or reasonableness of the ordinance. He concluded that, "in aid of the safety of the public," as the statute says, the lights were necessary at the crossing on Fifth avenue and on Seventh avenue, as well as on Sixth avenue; and we concur in the opinion. [1, 2] The proviso in the statute, reserving to the railroad companies the right to appeal to the courts to test the necessity for or the reasonableness of such ordinances, leaves the burden of proof upon the railroad company, in any given case, to show that the ordinance is unnecessary or unreasonable. The evidence in this case does not show that the lights are unnecessary or that the ordinance is unreasonable. It is true, no regular train was scheduled to pass through the city of Oakdale at night; but there was a switch track as well as the main line of railroad crossing the three avenues; and the record shows that several trains were switched across the three avenues every night. Oakdale has not many more than 5,000 inhabitants; but the three avenues in question are in the very center of the city; and many automobiles and pedestrians cross the railroad tracks at all of the three avenues every night. It would serve no purpose to publish a review of the testimony on the subject. It is enough to say that the railroad company has not shown that the lights on the crossings are not necessary or that the It is argued on behalf of appellant that the judgment appealed from is founded upon | ordinance is unreasonable. the ruling in State ex rel. City of Lake The judgment is affirmed at appellant's Charles v. St. Louis, I. M. & S. Railway Co., cost. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (157 La.) (102 So.) No. 26661. BURT v. DAVIS-WOOD LUMBER CO. (Supreme Court of Louisiana. Nov. 3, 1924.) (Syllabus by Editorial Staff.) 1. Master and servant 367-Teamster hauling lumber from sawmill to customers held not independent contractor; "servant." One hauling and delivering lumber to purchasers, at $3.50 to $4 per thousand feet, as measured by sawmill's representative, who gave specific instructions as to lumber to be hauled, and as to delivery, held not independent contractor, but servant, within workmen's compensation statute, though he furnished his own wagon and team. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Servant.] 2. Master and servant 388-Award of compensation to deceased employee's 18 year old son erroneous. Judgment awarding compensation to deceased employee's 18 year old son held errone ous. 3. Master and servant 386(1)-Funeral and burial expenses paid by deceased employee's widow allowable. Amount paid for funeral and burial expenses by deceased employee's widow is allowable by Act No. 247 of 1920 to extent of $100. Suit under the workmen's compensation statute by Jessie W. Burt, for herself and others, against the Davis-Wood Lumber Company, for the death of Hunter C. Burt, employee. Judgment for plaintiff was reversed by Court of Appeal, and she applies for certiorari or writ of review. Judgment of Court of Appeal set aside, and that of district court amended and affirmed as amended. life by the falling in or giving way of a bridge on a public road of the parish of St. Tammany over which he was crossing with his wagon and team. It is conceded, or at least is not seriously denied, that the plaintiffs were dependent, to some extent, for support on the young man, and it is not disputed that the accident which caused the death occurred while he was performing services "arising out of and incidental to his employment in the course of his employer's trade, business, or occupation." [1] The real defense to the action is that young Burt was not an employee of the defendant, within the meaning of the statute under which the suit is brought, but that he was an independent contractor. The defendant operated a sawmill situated in the country some distance from railroad or water transportation, and the only means of getting the product of the mill to market and to its customers and purchasers was by wagons and teams. Young Burt, with others, was employed to do this hauling and delivery of the manufactured lumber. He furnished his own wagon and team, and was paid at the rate of $3.50 and $4 per thousand feet. He boarded at the boarding house which furnished accommodations to the company and the company's mill force. The young man was carried on the pay roll and was paid on the regular pay days every the same as the other laborers of the mill, two weeks. He sometimes bought feed and supplies from the company, and, when the biweekly settlements were made, the supply account and the account due for board were deducted from the amount due for hauling for the stated period of two weeks. The company pointed out to the haulers the kind and character of the lumber to be hauled, and directed the place of delivery be delivered. When the loading on a wagon C. Sidney Frederick, of Covington, for ap- and the person to whom the lumber was to plicant. Harvey E. Ellis, of Covington, for de- by Burt (who loaded the wagon and drove his fendant. THOMPSON, J. Mrs. Jessie W. Burt, for herself and two minor children, brings this suit as dependent beneficiary of her son, Hunter C. Burt, who was accidentally killed while working for the defendant. The suit is under the workmen's compensation statute, otherwise called the Employers' Liability Act (Act No. 20 of 1914). own team) was completed, a representative of the defendant measured the lumber on the wagon and gave the hauler specific written instructions, to whom and where it was to be delivered. The defendant had practical control and supervision of the haulers, and the absolute right to say when and what lumber should be hauled, and this carried with it the right and authority to discharge the employee at will. We think, under these circumstances, the doctrine of independent contractor has no application. There was obviously no piece work engaged to be performed, there was no Judgment was rendered in the plaintiff's favor by the district court for $7.50 per week for 300 weeks. On appeal to the Court of Appeal, the judgment was reversed and the plaintiff's demand was rejected. That judg-particular job to be executed, there was no ment is before us for review. There is little discrepancy in the evidence as relates to the material and substantial facts of the case. The young man lost his specified pile, stack, or quantity of lumber to be hauled, but only such as was pointed out and when pointed out by the employer. The case falls within the ruling of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |