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(102 8o.) "The officer who served the summons swore , invoked in that case apply even in a misthat he could not locate the street number men- / demeanor case; that is to say, the return tioned in same. As no other information could must show facts justifying the conclusion be furnished, it was useless to wait longer."

tbat a serious effort was made to serve the To this ruling defendant duly excepted.

process. It is only by requiring the return to,

show such facts that the constitutional guarThe return on the abpæna was mad in an irregular manner. It should have been anty, that in all criminal cases the accused

shall have compulsory process for obtaining made on the subpoena itself, and should have been signed officially by the officer to whom witnesses in his favor, may be discharged or it was delivered for service. However,

enforced. In the case at bar, the return shows

no such facts. In fact, while manifestly not brushing this aside, and accepting the return as made, for the purposes of this case, than a mere pretense at making service. It

so intended, the return shows but little more still the return is not a proper one, in that it does not comply with the law, because it is true that the trial judge, after stating what fails to show that the officer made the seri- the officer swore to, in making his informal ous effort, expected of him, to serve the sub- return, states that, “as no other information pena. All that the return shows is that the could be furnished, it was useless to wait officer found no such street number as the longer." However, as defendant evidently one given by defendant. It does not appear

did not know of the failure to make service that he made diligent inquiry as to the until the case was called for trial, it is not whereabouts of the witness, of those resid- strange that he could not give, at that time, ing in the locality in which, if such a street any further information as to the wherenumber had existed, it might have been ex

abouts of the witness, and, in so far as repected to have been found. In fact, it does formal return made by the officer does not

lates to making inquiry of others, the in'not appear that the officer made any inquiry whatever as to the whereabouts of the wit- show that he inquired of them, and therefore ness; nor does the return even show that he the conclusion that no other information timely conveyed to defendant the fact that could be furnished is hardly justified. he could find no such number as 231 Pea

It may be added that the record presents body street, though, as defendant resided another bill of exceptions, designated therein the city of Shreveport, in which city the in, as bill No. 2. We considered that bill, in officer was on duty, he easily could have

consultation, but find no merit in it. done this, and thereby have given defendant

For the reasons assigned, the verdict and an opportunity to have ascertained the cor

the sentence appealed from are annulled and rect address of the witness.

set aside, and the case remanded to be pro

The return should have shown facts sufficient to have

ceeded with according to law. enabled the court to have said that the officer had made an earnest attempt to serve the subpæna before the court would have been justified in ordering defendant to trial in the absence of his witness.

(157 La.) A similar

No. 26821. ruling was made in State V. Boitreaux, 31 La. Ann. 188, and in that case it was also CITY OF SHREVEPORT V. COPOLA. said that:

(Supreme Court of Louisiana. Nov. 3, 1924.) "When-to procure the attendance of his witnesses-the prisoner has, in proper time, or

Appeal from City Court of Shreveport; Da. dered subpænas to issue, he cannot be com vid B. Samuel, Judge. Belled to apply for attachments, swear to the Charles F. Crane, of Shreveport, for appelfacts which he intends to prove by them, or lant. go to trial in their absence, until an earnest Percy Saint, Atty. Gen., Percy T. Ogden, Asst. and fruitless attempt has been made to bring Atty. Gen., and James U. Galloway, City Atty., them in court." (Italics ours.)

of Shreveport, for appellee. It is true that the Boitreaux Case, in which OVERTON, J. The prosecution in this case the ruling referred to was made, and from is under an ordinance passed by the city of which the foregoing excerpt is taken, is a case

Shreveport. With this exception, the issues in which the defendant was forced to trial on

are identical with those in the State of Louisi

ana v. Frank Copola (No. 26820) 102 So. 82, a capital charge, and that the court lays some

this day decided. stress on that fact in passing upon the effort For the reasons there assigned, the verdict that should be made to serve process on wit- and the sentence appealed from are annulled nesses for the defense; still, while that is and set aside, and the case remanded to be true, the same general principles as those proceeded with according to law.

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(157 La.)

ary 10, 1913, there appears the following noNo. 26190.

tation: CAVANAH v. EBERT et al.

"It is understood and agreed that the con

crete sidewalk in front of this property is to (Supreme Court of Louisiana. Nov. 3, 1924.) be laid at no expense to the purchaser. All

money received from rentals shall be prorated (Syllabus by Editorial Staff.)

for taxes." 1. Principal and agent Om69 (8)-President of owner's former agent held not precluded from

And at the foot of the contract bearing acquiring title at tax sale.

date February 15, 1913, there appears an. Where agreement by corporate vendor to other notation, reading as follows: collect rents and apply them to payment of tax

“The paving of Egania street sidewalk to be es ceased when deed was executed, transferring paved at no expense to purchaser, and rents lots to purchaser, and property was sold at to be applied to taxes.” tax sale two years after termination of the agency, vendor's president could purchase it

On April 3, 1917, something over four either directly or through another.

years after the contracts to sell had been 2. Taxation Cm761-Failure to correct form entered into, the New Orleans Home-Site

of deed to show location of court building Company, Ltd., joined by Isabelle D. Miller at time of sale held not to annul tax sale.

as one of the vendors, transferred the foreThat in making tax deed old form was used going lots to Warren with full warranty of without correcting it to show location of build

title. ing in which civil district court held sessions, and at door of which sale was made, afforded the lots were assessed to Warren for the tax

In 1918, the year following this transfer, no reason to annul sale.

es of 1918. When the taxes matured War3. Taxation ema 660_That sale of property for ren failed to pay them, and, as his address taxes was not advertised in official journal was unknown to the tax collector, the latter held im material.

Under Act No. 49 of 1877, $ 15, Act No. notified him by publication in the New Or. 104 of 1878, and Act No. 33 of 1916, as to ju- leans States of his intention to advertise and dicial sales in Parish of Orleans, and Act No. sell sufficient of the property to pay the de. 315 of 1910, § 1, as to sales for taxes, tax sale linquent taxes due thereon, together with the need not be advertised in official journal, and penalties and costs, unless the same should is not void because it does not appear in what be paid. Warren failed to pay after this nopaper it was advertised; proof of sale being tice was given, and the sheriff therefore adunder Rev. St. 1870, 8 3391, prima facie evi- vertised the property for sale. dence that legal advertisements were regularly

When the property was being advertised made.

for sale John W. Cavanah, the plaintiff hereAppeal from Civil District Court, Parish in, approached Joseph F. Ebert, who was of Orleans; Percy Saint, Judge.

then president of the Third District Land

Company, Ltd., and requested him to buy the Action by John W. Cavanah against Jos

property assessed to Warren for him, as well eph F. Ebert, individually, and another, in

as various other pieces of property that were which S. Timothy Warren intervened. Judg. then being advertised for sale for the taxes ment for plaintiff, and intervener appeals. due thereon. Ebert complied with CavaAffirmed.

nah'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.

the Third District Land Company, the comBenjamin Ory, of New Orleans, for appel- pany of which he was president. lee John W. Cavanah.

Some time after the sale Cavanah made

demand on Ebert, and on the company of OVERTON, J. On February 10, 1913, the which Ebert was president, to deed the propNew Orleans · Home-Site Company Ltd., erty to him, but both refused on the ground agreed to sell, partly for cash and partly on that there were certain sums due them for credit, to S. Timothy Warren, lots 22 to 25, taxes paid and services rendered, and that inclusive, of block 456 in the Third district so long as these sums remained unpaid they of New Orleans, and on the 15th of the same did not feel called upon to transfer the propmonth the same company entered into a con- erty. tract to sell to Warren, partly for cash and Due to the refusal of Ebert and of the partly on credit, lots 9 to 16, inclusive, of Third District Land Company, Ltd., to make block 678, bounded by Claiborne avenue, the transfer, Cavanah instituted this suit North Robertson, Egania, and Lazard streets. against them to recover the property. Some. In each contract the New Orleans Home-Site time after the institution of the suit Warren, Company, Ltd., agreed to convey title to the a resident of the Republic of Honduras, inproperty therein described upon the payment tervened for the purpose of obtaining a deof a specitied part of the purchase price. cree declaring the property to be his. At the foot of the contract of date Febru After due trial, judgment was rendered by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

4

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(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, The civil district court was once held in a have not appealed. The intervener, Warren, building located on St. Anthony's alley, and has alone appealed.

it is manifest that in making the deed an old

form was used, without correcting it so as to Opinion.

show the location of the building in which

the civil district court held its sessions at the [1] The chief ground for the intervention, time of the sale. The failure to correct the filed by Warren, is that Cavanah, as presi- form used affords no reason to annul the sale. dent of the New Orleans Home-Site Com [3] Warren also contends that the tax sale pany, Ltd., was his agent, charged with the is null for the reason that it does not apduty of administering the property in con- pear that it was advertised in the official troversy, and of seeing that the taxes due journal, and for the further reason that it thereon were paid, and hence that the pur- does not appear in what newspaper the sale chase of the property by Cavanah through was advertised. another was in violation of the agency, and The tax collector's deed recites that the in fraud of his rights.

property was advertised for sale according It is clear that, if Warren has established to law, in the manner provided for judicial this ground of his intervention, the sale sales, in the English langtage, in a newspamade by the tax collector would be null, for, per published daily in the city of New Orleans, if Cavanah, either personally, or as president but leaves the name of the paper blank. It of the New Orleans Home-Site Company, Ltd., does not appear outside of the deed in what was Warren's agent, charged with the duty paper the advertisement was made. 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 officialjournal. 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 Eng. Home-Site Company, Ltd., was Warren's lish language. Section 15 of Act 49 of 1877, agent, for any purpose, at the time of the p. 62; Act 104 of 1878, p. 137; and Act 33 of tax sale. True, when Warren agreed to 1916, p. 64. Hence it is immaterial whether purchase the property from the New Orleans or not the. property was advertised for sale Home-Site Company, of which Cavanah was in the official journal as it was unnecessary president, that Company agreed to collect the to advertise it therein. Nor is it fatal to the rents, and to apply them to the payment of sale that it does not appear in what paper the taxes, but the record establishes that the the advertisement was made. The sale was agreement to collect the rents, and to thus a public one. It was made by the tax col. apply them, ceased when in 1917, some four lector, who was authorized by statute to years after Warren had entered into the con- make it. The law is that “when any question tract to purchase, the deed was executed un- shall arise out of any public sale, made by der that contract, transferring the lots in con- any person authorized to sell at public auctroversy to him. Hence, when the property tion, and which sale was required by law to was offered at tax sale some two years after be preceded by advertisements, the sale bethe termination of the agency, there was no ing proved, it shall be prima facie evidence reason why Cavanah could not purchase the that the legal advertisements were regularly property at tax sale, either directly or made.

Revised Statutes of 1870, through another. We therefore conclude $ 3391. that Warren's main ground of attack cannot In the absence of any evidence to the con. be sustained.

trary the presumption therefore is that the [2] Warren also contends that the tax sale property was regularly advertised. is null for the following reasons: The tax Finding no error in the judgment appealed collector's deed recites that the property from, it is affirmed. was advertised to be sold at the "principal Judgment affirmed,

(157 La.)

138 La. 714, 70 South. 621, interpreted as No. 26489,

holding that the courts have no authority to STATE ex rel. CITY OF OAKDALE V. MIS. question the necessity for or the reasonableSOURI 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

nance in that case was enacted under author(Syllabus by Editorial Staff.)

ity of Act 35 of 1912, which has been amend1. Municipal corporations en 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.

Under Act No. 248 of 1916, amending Act the courts to test the necessity for and the No. 35 of 1912, so as to reserve to railroad reasonableness of any ordinance passed by companies right of appeal to courts to test ne

any municipality under the power and aucessity for and reasonableness of municipal thority granted by this act.” ordinances enacted thereunder, burden is on The judgment appealed from is supported company to show that ordinance complained of by a very able written opinion. It is not is unnecessary or unreasonable.

founded upon the idea that the courts can

not or will not look into the question of 2. Railroads 238 - Ordinance requiring street lights at crossings held not unnecessary necessity for or reasonableness of a municior unreasonable.

pal 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 un the testimony that was offered on the quesreasonable, though no regular train was sched- tion of necessity for or reasonableness of the uled to pass through city at night.

ordinance. He concluded that, "in aid of Appeal from wifteenth Judicial District the lights were necessary at the crossing on

the safeťy of the public,” as the statute says, Court, Parish of Allen ; Thos. F. Porter, Jr., Fifth avenue and on Seventh avenue, as well Judge.

as on Sixth avenue; and we concur in the Mandamus by the State of Louisiana, on opinion. the relation of the City of Oakdale, against [1, 2] The proviso in the statute, reserving the Missouri Pacific Railroad Company. to the railroad companies the right to appeal Judgment for relator, and defendant appeals to the courts to test the necessity for or the Affirmed.

reasonableness of such ordinances, leaves

the burden of proof upon the railroad comHudson, Potts, Bernstein & Sholars, of pany, in any given case, to show that the Monroe, for appellant.

ordinance is unnecessary or unreasonable. C. D. Reed, City Atty., of Oakdale (J. A.

The evidence in this case does not show that Williams, of Colfax, of counsel), for appel- the lights are unnecessary or that the orlee,

dinance is unreasonable. It is true, no reg

ular train was scheduled to pass through the O'NIELL, C. J. The defendant has ap- city of Oakdale at night; but there was a pealed from a judgment in a mandamus pro- switch track as well as the main line of ceeding ordering the company to install and railroad crossing the three avenues; and the maintain a street light at the railroad record shows that several trains crossing on each of three avenues in the switched across the three avenues every city of Oakdale. They are Fifth avenue, night. Oakdale has not many more than Sixth avenue and Seventh avenue. Appel- 5,000 inhabitants; but the three avenues in lant is willing to install and maintain a light question are in the very center of the city; at the crossing on Sixth avenue, which is the and many automobiles and pedestrians' cross principal business thoroughfare of the city, the railroad tracks at all of the three avebut contends that, in so far as the ordinance nues every night. It would serve no purpose requires a light on the crossing on Fifth to publish a review of the testimony on the avenue and on Seventh avenue, it is unneces- subject. It is enough to say that the railsary and unreasonable.

road company has not shown that the lights It is argued on behalf of appellant that on the crossings are not necessary or that the 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

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ous.

(102 So.) (157 La.)

life by the falling in or giving way of a No, 26661.

bridge on a public road of the parish of St. BURT V. DAVIS-WOOD LUMBER CO. Tammany over which he was crossing with

his wagon and team. (Supreme Court of Louisiana. Nov. 3, 1924.)

It is conceded, or at least is not seriously (Syllabus by Editorial Staff.)

denied, that the plaintiffs were dependent,

to some extent, for support on the young 1. Master and servant m 367–Teamster haul. ing lumber from sawmill to customers held man, and it is not disputed that the accident

which caused the death occurred while he not independent contractor; "servant." One hauling and delivering lumber to pur

was performing services "arising out of and chasers, at $3.50 to $4 per thousand feet, as incidental to his employment in the course measured by sawmill's representative, who of his employer's trade, business, or occupagave specific instructions as to lumber to be tion." hauled, and as to delivery, held not independ [1] The real defense to the action is that ent contractor, but servant, within workmen's young Burt was not an employee of the decompensation statute, though he furnished his fendant, within the meaning of the statute own wagon and team.

under which the suit is brought, but that he [Ed. Note.-For other definitions, see Words was an independent contractor. and Phrases, First and Second Series, Serp.

The defendant operated a sawmill situatant.)

ed in the country some distance from rail2. Master and servant 388—Award of com- road or water transportation, and the only pensation to deceased employee's 18 year old means of getting the product of the mill to son erroneous.

market and to its customers and purchasers Judgment awarding compensation to de- I was by wagons and teams. Young Burt, ceased employee's 18 year old son held errone- with others, was employed to do this haul

ing and delivery of the manufactured lum3. Master and servant C386(1)-Funeral and ber. He furnished his own wagon and team, burial expenses paid by deceased employee's and was paid at the rate of $3.50 and $4 per widow allowable.

thousand feet. He boarded at the boarding Amount paid for funeral and burial expens- house whicb furnished accommodations to es by deceased employee's widow is allowable the company and the company's mill force. by Act No. 247 of 1920 to extent of $100.

The young man was carried on the pay roll

the same as the other laborers of the mill, Suit under the workmen's compensation

and was paid on the regular pay days every statute by Jessie W. Burt, for herself and two weeks. He sometimes bought feed and others, against the Davis-Wood Lumber Com

supplies from the company, and, when the pany, for the death of Hunter C. Burt, em, biweekly settlements were made, the supply ployee. Judgment for plaintiff was reversed

account and the account due for board were by Court of Appeal, and she applies for cer- deducted from the amount due for hauling tiorarior writ of review. Judgment of

for the stated period of two weeks. Court of Appeal set aside, and that of

The company pointed out to the haulers district court amended and affirmed

the kind and character of the lumber to be amended,

hauled, and directed the place of delivery C. Sidney Frederick, of Covington, for ap- and the person to whom the lumber was to plicant.

be delivered. When the loading on a wagon Harvey E. Ellis, of Covington, for de- by Burt (who loaded the wagon and drove his fendant.

own team) was completed, a representative of

the defendant measured the lumber on the THOMPSON, J. Mrs. Jessie W. Burt, for wagon and gave the hauler specific written herself and two minor children, brings this instructions, to whom and where it was to suit as dependent beneficiary of her son, be delivered. The defendant had practical Hunter C. Burt, who was accidentally killed control and supervision of the haulers, and while working for the defendant.

The suit the absolute right to say when and what is under the workmen's compensation stat- lumber should be hauled, and this carried ute, otherwise called the Employers' Liabil- with it the right and authority to discharge ity Act (Act No. 20 of 1914).

the employee at will. Judgment was rendered in the plaintiff's We think, under these circumstances, the favor by the district court for $7.50 per week doctrine of independent contractor has no for 300 weeks. On appeal to the Court of application. There was obviously no piece Appeal, the judgment was reversed and the work engaged to be performed, there was no plaintiff's demand was rejected. That judg- particular job to be executed, there was no ment is before us for review.

specified pile, stack, or quantity of lumber There is little discrepancy in the evidence to be hauled, but only such as was pointed as relates to the material and substantial out and when pointed out by the employer. facts of the case.

The young man lost his The case falls within the ruling of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as

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