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(102 So.) with his consent, on leased premises, they be Certiorari to Court of Appeal, Parish of come subject to the pledge of the lessor. St. Tammany. Bailey v. Quick, 28 La. Ann. 432; University Publishing Co. v. Piffet, 34 La. Ann. 602.

Action by Bank of Slidell against W. E. The only exceptions to the foregoing rule, Gause. Judgment for plaintiff in the Court which the courts of this state have recog- of Appeal, and defendant applies for cernized, are such as come strictly within the tiorari or writ of review. Affirmed. letter of article 2708, R. C. C. Intervener relies upon the case of Coleman

Henry L. Garland, of Opelousas, for appli. 5. Fairbanks, 28 La. Ann. 93. In that case

cant. the court found, as a fact, that sugar and

Sidney W. Provensal, of New Orleans, for molasses had been sent to a manufacturer respondent. to be made up or manufactured for the owner, and, as that finding of fact brought the case within the letter of article 2708, the

LAND, J. Defendant assigns as error the seizure of the property was set aside.

refusal of the Court of Appeal to sustain his It therefore seems that this court has here- plea of prescription of five years, urged tofore held to the view that article 2708, R. against the suit of plaintiff bank on a deC. C., is exclusive rather than inclusive.

mand note signed by defendant and W. T. Special facts, like those in Underwood Tippen as makers in solido. Tippen had Typewriter Co. v. Vatter, 14 Ct. App. 410, died before suit was instituted, and Gause when presented, may warrant this court in alone is made party defendant. The basis of modifying its views to some extent, but this defendant's complaint is that the decisions case does not present any special facts or

cited in the opinion of the Court of Appeal unusual features which remove it from the have been superseded by article 2278 of the operation of the general rule.

Civil Code, prohibiting the reception of parol In Goodrich v. Bodley, 35 La. Ann. 525, it evidence to prove acknowledgment or promise appears that the facts there found are not of a party deceased, to pay any debt or liastrictly analogous to the facts of this case, bility, in order to take such debt or liability but the law of the Goodrich-Bodley Case has out of prescription, or to revive the same equal application to the facts here present- after prescription has run or been completed. ed, and we are of the opinion that the deci.

The plaintiff bank does not rely upon parol sion in Goodrich v. Bodley is controlling and evidence in this case. should be followed.

Defendant has judicially admitted in his The Court of Appeal reached the same con

answer "That said W. T. Tippen had pledged clusion. Its judgment is correct, and there certain collateral as security for said note, fore the judgment is affirmed.

and the same should be fully accounted for."

This collateral was collected and applied by ROGERS, J., recused.

the bank less than five years ago to the pay.

ment of the first note given by Tippen to the (157 La.)

bank, and the balance of the proceeds creditNo. 26592.

ed on the present note. The note sued on BANK OF SLIDELL V. GAUSE.

is of date February 16, 1916, and the posses

sion by plaintiff bank of the collateral pledged in re GAUSE.

by Tippen suspended prescription on said (Supreme Court of Louisiana. Nov. 3, 1924. note during the period prior to the last credit Rehearing Denied Dec. 1, 1924.)

entered on the note, February 9, 1922.

(1) Prescription does not run as long as (Syllabus by Editorial Staff.!

the thing pledged remains in the possession 1. Limitation of actions 48(7)–Prescrip of the pledgee. Begue v. St. Marc, 47 La. tion does not run while thing pledged remains Ann. 1151, 17 So. 700; Montgomery v. Levisin pledgee's possession.

tones, 8 Rob, 145. Prescription does not while thing [2] Defendant having admitted in his anpledged remains in pledgee's possession. swer the existence of this collateral, and 2. Limitation of actions w 157 (5)—Prescrip. having demanded of plaintiff bank an action held not to run against suit on demand counting of the same, and the proceeds of the note, on which collateral security was applied, collateral having been applied to the note until after date of last credit.

sued on, prescription did not commence to Prescription against suit on demand note on

run as to the defendant until after the date which proceeds of collateral pledged as security of the last credit on said note, February 9, by deceased comaker were applied, did not run

1922. in favor of surviving comaker, admitting exist

The judgment of the Court of Appeal propence of collateral, and demanding accounting thereof by plaintiff, until after date of last crederly rejected the plea of prescription.

Judgment affirmed.

run

it on note,

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

(157 La.)

No. 26675.

based on erroneous legal advice of his defendant brother, an attorney at law, in whom he had implicit confidence, that subsequent wills were void.

Succession of GILMORE.

(Supreme Court of Louisiana. Nov. 3, 1924. 8. Wills Ow221-Plea of res judicata held not Rehearing Denied Dec. 1, 1924.)

available as defense against annulment of

probation of first will. (Syllabus by Editorial Staff.)

In suit to set aside probation of first will, 1. Judgment @ww414-When courts will afford and to have probated in lieu thereof two sub

sequent wills revoking first will, plea of res relief against judgment.

judicata held not available to defendant. Irrespective of Code Prac. art. 607, courts will relieve against judgments, irrespective of any issue of inattention or neglect, when cir

Appeal from Civil District Court, Parish of cumstances under which judgment was ren- Orleans; Percy Saint, Judge. dered show deprivation of legal rights of one seeking relief, and when enforcement of judg

Petition by William V. Gilmore to annul ment would be unconscientious and inequitable. and set aside a judgment probating will of

Ellen A. Gilmore. From a judgment granting 2. Equity Cw21-Equity will not permit one relief prayed for, Joseph C. Gilmore appeals. party to take advantage of and enjoy gains

Affirmed. of ignorance or mistake of law by other, especially when fiduciary relation exists

J. C. & Thos. Gilmore, of New Orleans, for Courts of equity will not permit one party succession of Ellen A. Gilmore and appellant. to take advantage of and enjoy the gains of

Spencer, Gidiere, Phelps & Dunbar, of New ignorance or mistake of law by the other, Orleans, for appellee. which he knew of and did not correct, especially when confidential or fiduciary relation existed By the WHOLE COURT. between them.

3. Wills 282—Petition held to allege facts

LAND, J. This is a suit by William V. Gilas basis for annulling judgment probating more to annul and set aside a judgment, renfirst will.

dered September 5, 1923, probating the oloPetition held to allege facts as basis for ac- graphic will of his sister, Ellen A. Gilmore, tion to annul judgment probating will, notwithstanding petitioner did not charge fraud or ill deceased, of date June 21, 1904, and recogpractices specifically enumerated by Code Prac. nizing petitioner and his brother, Joseph C. art. 607.

Gilmore, as universal legatees under said will,

and putting them in possession, in equal pro4. Wills Ow78, 79—Testator cannot renounce

or restrict his right of revocation of former portion, of all of the property of her estate. testaments,

The rescission of all proceedings had in

the succession of decedent is demanded. PeTestator may revoke all former testaments at will and his right of revocation cannot be titioner also seeks in this proceeding to have renounced or restricted, in view of Rev. Civ. recognized as valid and admitted to probate Code, art. 1690.

two later olographic wills made by Ellen A.

Gilmore, and dated, respectively, June 11, 5. Evidence Ow65—Practicing attorney pre- 1923, and July 5, 1923, in each of which the sumed to know law of state as to revocation testatrix bequeathed to petitioner all of her of wills.

property, and expressly revoked all former Attorneys who have practiced law a numher of years are presumed to be familiar with wills. The grounds of the action of nullity law of state as to revocation of wills.

are that, for many days prior to August 20,

1923, the defendant, Joseph C. Gilmore, an 6. Wills w 195—Last wills, expressly revok- attorney at law, and brother of petitioner,

ing all former wills, necessarily prevailed continuously advised petitioner, who is not over first will.

a lawyer, that the later wills executed by Later wills, expressly revoking all former the said Ellen A. Gilmore were scraps of pa. wills, necessarily prevailed over former will, in per, invalid, and of no effect, and that deview of Rev. Civ. Code, arts. 1691, 1694.

fendant continuously importuned petitioner 7. Wills ww221, 230—Probation by petitioner to consent to the probate of the will of June

of first will and execution of its provisions 21, 1904, in which the defendant, Joseph C. held not to estop him from annulling first Gilmore, and petitioner had been instituted will and from probating later wills.

universal legatees with equal shares, without Probation by petitioner of first will and disclosing the existence of the other two execution of its provisions, which gave estate wills. to him and his defendant brother in equal shares, held not to estop him from seeking an

[1-3] 1. The main question submitted for pullment of first will, under Code Prac. art.

consideration, under an exception of no 607, and recognition of later wills revoking cause of action, is whether the allegations in first will, and giving all of estate to petitioner, the petition, if taken as true, form a suffiwhere petitioner's probation of first will was i cient basis for an action of nullity under

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

(102 So.) article 607 of the Code of Practice which | petitioner as universal legatee, and expressly provides that:

revoked all former wills. These later dis“A definitive judgment may be annulled in positions must necessarily prevail over the all cases where it appears that it has been first will of 1904. R. C. C. arts. 1691, 1694. obtained through fraud or other ill practices The effect of the advice given by Joseph C. on the part of the party in whose favor it was Gilmore, the brother of petitioner, was to rendered; as if he had obtained the same by divest petitioner of a half interest in the bribing the judge or the witnesses, or by pro- property bequeathed to him under the last ducing forged documents, or by denying having wills, and to vest this interest in Joseph C. received the payment of a sum, the receipt of which the defendant had lost or could not find Gilmore under the first will, which had been at the time, but has found since the rendering expressly revoked by the testator in the tesof the judgment."

taments subsequently executed by her.

Petitioner was deprived of his just and It is true that said petition does not legal rights under the later wills by the ercharge “fraud" or the ill practices specific-roneous and clearly illegal advice of his ally enumerated in the article of the Code of brother, and to the evident enrichment of the Practice above cited. The remedy given by latter, when under the later wills the brother said article to annul judgments, however, is of petitioner had been destituted of any claim not restrictive. The courts of this state will whatever under the first will to any part of not hesitate to afford relief against judg- the property devised. ments, irrespective of any issue of inatten

[7] 3. The defendant, Joseph C. Gilmore, tion or neglect, when the circumstances un- had been the attorney of petitioner, William der which the judgment is rendered show the v. Gilmore, in all matters requiring legal deprivation of legal rights of the litigant who advice up to the time of the probation of the seeks relief, and when the enforcement of first will of 1904. They had lived together in the judgment would be unconscientious and the same house for a number of years. Petiinequitable. Our courts will follow the gen- tioner naturally relied upon the advice of his eral principles of equity jurisprudence ap- brother in the probation of the will of 1904, plied by the equity courts of the other states and, being a layman, imposed implicit conof this country in actions of this character. fidence in the counsel given him by his kinsLazarus v. McGuirk, 42 La. Ann. 200, 8 So.

man in regard to the estate of their late sis253; City of New Orleans v. Le Bourgeois, 50

ter. Under such circumstances, petitioner La. Ann. 592, 23 So. 542.

Courts of equity will not permit one party was not estopped from employing new attorto take advantage of and enjoy the gains of neys to bring the present action of nullity, ignorance or mistake of law by the other, notwithstanding the probation by petitioner which he knew of and did not correct, espe of the first will and the execution of its procially when a confidential or fiduciary rela- visions, as the enforcement of the judgment tion existed between them. Pomeroy, Equity probating this will would be unconscientious Juris. vol. 2, pars. 817, 818, 819, 956.

and inequitable under the facts of the case. The exception of no cause of action is not the plea of estoppel was properly overruled. well founded.

[8] 4. Nor can the judgment sought to be [4] 2. The evidence in the record sustains annulled in these proceedings be pleaded by substantially the allegations contained in the defendant, Joseph C. Gilmore, as res judicata petition.

to the action of nullity brought by his brothAs testaments cannot take effect until the er, William V. Gilmore. The plea of res death of the testator, it is elementary that judicata is therefore unavailing. Edwards the testator is at liberty to revoke all for- v. Edwards, 29 La. Ann. 597; Anderson v. mer testaments at will. This right of rev- Benbam, 40 La. Ann. 338, 4 So. 454; Lazarus ocation cannot be renounced or restricted v. McGuirk, 42 La. Ann. 200, 8 So. 253. by the testator. R. C. C. art. 1690.

The lower court annulled the judgment pro[5] It is to be presumed that attorneys, Bating the first will, set aside all proceedings who have practiced law a number of years, in the succession of Ellen A. Gilmore, recogare familiar with the law of this state on nized the validity of the two later wills, and the subject of the revocation of wills.

held them admissible to probate. [6] The last two wills of Ellen A. Gilmore, The judgment appealed from is correct. executed in June and July, 1923, instituted Judgment affirmed.

(157 La.)

R. Norman Bauer, of Franklin, for appli-
No. 26650.

cant.

White, Holloman & White, of Alexandria, CLARK V. ALEXANDRIA COOPERAGE & for defendant.

LUMBER CO.

cases.

in re CLARK.

BRUNOT, J. When this suit was filed,

the case of Bell v. Albert Hanson Lumber (Supreme Court of Louisiana. Nov. 3, 1924. Co., 151 La. 824, 92 So. 350, was then pendRehearing Denied Dec. 1, 1924.)

ing on appeal. After issue was joined, the (Syllabus by Editorial Staff.)

cases appeared to be similar in every ma

terial respect, and this case was permitted to 1. Master and servant Om348-Technical de rest, pending the decision of Bell v. Hanson fenses abrogated by Employers' Liability Act. Lumber Co.

In application of Employers' Liability Act, The Court of Appeal has accurately stated as amended by Act No. 38 of 1918, all techni- this case, and we quote that statement in cal defenses are abrogated, except in extreme full:

"On the 2d day of May, 1921, plaintiff filed, 2. Master and servant O401-Exception to in the District Court of Rapides parish, her

petition under Employers' Liability Act not petition, alleging in substance that the defendallowed, unless it presents real defense,

ant is indebted to her, under the provisions Exception of no cause of action to petition of Act No. 20 of 1914, commonly known as the under Employers' Liability Act, as amended by amended by Act No. 38 of 1918, in the sum of

Burke-Roberts Employers' Liability Act, as Act No. 38 of 1918, is technical rule of pro: $16 a week for a period of 300 weeks, dating cedure, and will not be allowed, unless it goes from July 12, 1920, or a total of $4,800, with to merits and presents real defense to case.

legal interest from judicial demand; that her 3. Master and servant uw 401-Notice of acci- husband, Henry Clark, was killed on July 12,

dent need not be alleged in petition, under 1920, while in the employ of defendant, his Employers' Liability Act,

death being caused by the falling of a tree in a

swamp near Alexandria, Rapides parish; that Under Employers' Liability Act, & 15, failure petitioner has two minor children, issue of her to notify defendant of accident is matter of de- marriage with her said deceased husband, and fense, and notice does not have to be alleged that she and her children were wholly dependaffirmatively in petition.

ent upon her said husband for support; that

she understands her said husband was receiv4. Master and servant Ow394—Court not bound ing wages at the time of his death of pot less

by technical rules of procedure in cases un. than $30 a week, and that she has made amicader Employers' Liability Act.

ble demand, but without avail. In cases under Employers' Liability Act, "On May 24, 1921, defendant filed its anas amended by Act No. 38 of 1918, court is not swer to plaintiff's petition, denying that it is bound by technical or formal rules of procedure, due plaintiff anything, alleging that plaintiff's except as provided therein.

husband was not in its employ when killed or

injured, and that Clark was an independent 5. Master and servant Ow401-Petition with contractor at the time he got hurt. It further

admission of answer held to contain neces- alleged that Clark was not carried on defendsary averments,

ant's pay roll, and that he paid and discharged In action for compensation for death under his own labor, as well as furnished his own Employers' Liability Act, as amended by Act tools and implements with which the work he No. 38 of 1918, where supplemental and amend

was engaged in was carried on. It is admitted ed petition alleged that decedent was perform that amicable demand had been made without ing duty arising out of and incidental to em

avail. ployment by defendant, and defendant's an

"On June 26, 1922, defendant filed an excep

which was, swer admitted knowledge of decedent's death, tion of no cause or right of acti necessary averments under paragraph 1, § 18, by agreement of counsel, submitted on briefs were supplied thereby.

on October 27, 1922." Certiorari to Court of Appeal, Parish of

Pending the decision on the foregoing exRapides.

ception, plaintiff, with leave of the court,

filed a supplemental and amended petition, Action by Caledonia Pickett Clark against detailing the particular kind and character the Alexandria Cooperage & Lumber Com- of the work in which the deceased was enpany, under Employers' Liability Act, for gaged, and concluding with the averment death of her husband, Henry Clark. On ap- "that at the moment of his death, as aforeplication of plaintiff for certiorari or writ said, petitioner's said husband was performof review to review judgment of Court of Ap- ing a duty arising out of and incidental to peal, affirming judgment sustaining excep- his employment.” tion of no cause of action. Judgments sus The exception is leveled at the failure of taining exception annulled and avoided, ex- the plaintiff to allege that the employer bad ception overruled, and case remanded. knowledge of the injury and of the death

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

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(102 So.) of plaintiff's husband, or that notice of the tive, had knouledge of the accident." (Italics occurrence was given it, or that the death by the court.) of plaintiff's husband was caused by an accident "arising out of and incidental to his filed long prior to the filling of its exception,

In paragraph 2 of defendant's answer, employment in the course of his employer's defendant admits the death of plaintif's trade, business, or occupation."

husband, and its knowledge of the accident The opinion of the Court of Appeal rec

is revealed in the following section of that ognized that plaintiff's supplemental petition

paragraph, in which the defense relied upon cures some of the defects relied upon by ex

is alleged, viz.:
ceptor, but it holds that, as there is no al-
legation in either petition that the employer

"It specially denies that Henry Clark was in had knowledge of the accident, or that no- the employ of this company, and, on the contice of it was given to him, as required by trary alleges that he was an independent consection 11 of Act No. 20 of 1914, as amended tractor at the time he originally got hurt, and

was not an employee of this company within bs Act No. 243 of 1916, the petition fails to the terms of the Employers' Liability Act as disclose a cause of action; that, even if it amended and that under the jurisprudence of be held that the suit constitutes notice, the this court as established by repeated decisions suit was not filed within six months after there can be no recovery under this state of Clark's death.

facts." (Italics ours.) [1] It is our conception of the law that

[4] In cases coming under the Employers' in the application of the Employers' Liability Liability Act, the court is not bound by any Act the rule is that all technical defenses technical or formal rules of procedure, exare abrogated. We recognize that there are cept as is provided in the act itself. The exceptions to this rule, but it must be an provisions of paragraph 1 of section 18 of extreme case to bring it within the excep- the Act are that a verified complaint may be tions. Lemieux v. Cousins, 154 La, 811, 98

presentedSo. 255; Dyer v. Rapides Lumber Co., 154 LA. 1091, 98 So. 677; Dick v. Gravel Log- "setting forth the names and residences of the ging Co., 152 La. 994, 95 So. 99; Philips v. parties and the facts relating to employment

at the time of injury, the character and exGuy Drilling Co., 143 La. 951, 79 So. 549.

tent of the injury, the amount of wages being [2] An exception of no cause of action to received at the time of the injury, the knowla petition under the Employers' Liability edge of the employer or notice of the occurence Act, being a technical rule of procedure, will of said injury, and such other facts as may be not be allowed, unless it goes to the merits necessary and proper for the information of and presents the real defense to the case. said judge, and shall state the matter or matPierre v. Barringer, 149 La. 71, 88 So, 691; ters in dispute and the contention of the petiDewey v. Lutcher-Moore Lumber Co., 151 tioner with reference thereto." La. 672, 92 So. 273.

[5] While the original petition may have (3) A failure to notify a defendant of an omitted averments necessary to state a cause accident is a matter of defense, and it does of action, the supplemental and amended not have to be alleged affirmatively in the petition supplies one of the omissions competition. Section 15, Act No. 20 of 1914; plained of, and the answer of defendant, bye Smith v. White, 146 La. 313.1 Section 15, admission, supplies the other. Act No. 20 of 1914, is as follows:

We think the district court and the Court

of Appeal were in error in sustaining the ex"Be it further enacted, etc., that a notice ception of no cause of action, and the judg. given under the provisions of section 11 of this ments sustaining that exception are annulled act shall not be held invalid or insufficient by and avoided, and the exception of no cause reason of any inaccuracy in stating the time, place, nature of

cause of the injury, or other- of action is overruled, and the case remandwise, unless it is shown that the employer was

ed to the district court, to be proceeded with in fact misled to his injury thereby. Want of according to law; all costs of this court and notice or delay in giving notice shall not be a

the Court of Appeal to be paid by defendant, bar to proceedings under this act if it be shown and other costs to await the final disposition that the employer, or his agent or representa- of the case.

*83 So. 584.

102 S0.--7

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