(102 So.) with his consent, on leased premises, they become subject to the pledge of the lessor. Bailey v. Quick, 28 La. Ann. 432; University Publishing Co. v. Piffet, 34 La. Ann. 602. The only exceptions to the foregoing rule, which the courts of this state have recognized, are such as come strictly within the letter of article 2708, R. C. C. Intervener relies upon the case of Coleman v. Fairbanks, 28 La. Ann. 93. In that case the court found, as a fact, that sugar and molasses had been sent to a manufacturer 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 seizure of the property was set aside. It therefore seems that this court has heretofore held to the view that article 2708, R. C. C., is exclusive rather than inclusive. Special facts, like those in Underwood Typewriter Co. v. Vatter, 14 Ct. App. 410, when presented, may warrant this court in modifying its views to some extent, but this case does not present any special facts or unusual features which remove it from the operation of the general rule. In Goodrich v. Bodley, 35 La. Ann. 525, it appears that the facts there found are not strictly analogous to the facts of this case, but the law of the Goodrich-Bodley Case has equal application to the facts here presented, and we are of the opinion that the decision in Goodrich v. Bodley is controlling and should be followed. The Court of Appeal reached the same conclusion. Its judgment is correct, and therefore the judgment is affirmed. ROGERS, J., recused. (157 La.) No. 26592. BANK OF SLIDELL v. GAUSE. (Supreme Court of Louisiana. Nov. 3, 1924. Rehearing Denied Dec. 1, 1924.) (Syllabus by Editorial Staff.) 1. Limitation of actions 48 (7)-Prescription does not run while thing pledged remains in pledgee's possession. Prescription does not run while thing pledged remains in pledgee's possession. 2. Limitation of actions 157(5)—Prescription held not to run against suit on demand note, on which collateral security was applied, until after date of last credit. Prescription against suit on demand note on which proceeds of collateral pledged as security by deceased comaker were applied, did not run in favor of surviving comaker, admitting existence of collateral, and demanding accounting thereof by plaintiff, until after date of last credit on note. Certiorari to Court of Appeal, Parish of St. Tammany. Action by Bank of Slidell against W. E. Gause. Judgment for plaintiff in the Court of Appeal, and defendant applies for certiorari or writ of review. Affirmed. Henry L. Garland, of Opelousas, for appli cant. Sidney W. Provensal, of New Orleans, for respondent. refusal of the Court of Appeal to sustain his plea of prescription of five years, urged against the suit of plaintiff bank on a demand note signed by defendant and W. T. Tippen as makers in solido. Tippen had died before suit was instituted, and Gause alone is made party defendant. The basis of defendant's complaint is that the decisions cited in the opinion of the Court of Appeal have been superseded by article 2278 of the Civil Code, prohibiting the reception of parol evidence to prove acknowledgment or promise of a party deceased, to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed. The plaintiff bank does not rely upon parol evidence in this case. LAND, J. Defendant assigns as error the Defendant has judicially admitted in his answer "That said W. T. Tippen had pledged certain collateral as security for said note, and the same should be fully accounted for." This collateral was collected and applied by the bank less than five years ago to the payment of the first note given by Tippen to the bank, and the balance of the proceeds credited on the present note. The note sued on is of date February 16, 1916, and the possession by plaintiff bank of the collateral pledged by Tippen suspended prescription on said note during the period prior to the last credit entered on the note, February 9, 1922. [1] Prescription does not run as long as the thing pledged remains in the possession of the pledgee. Begue v. St. Marc, 47 La. Ann. 1151, 17 So. 700; Montgomery v. Levistones, 8 Rob. 145. [2] Defendant having admitted in his answer the existence of this collateral, and having demanded of plaintiff bank an accounting of the same, and the proceeds of the collateral having been applied to the note sued on, prescription did not commence to run as to the defendant until after the date of the last credit on said note, February 9, 1922. The judgment of the Court of Appeal properly rejected the plea of prescription. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (157 La.) No. 26675. Succession of GILMORE. (Supreme Court of Louisiana. Nov. 3, 1924. Rehearing Denied Dec. 1, 1924.) (Syllabus by Editorial Staff.) based on erroneous legal advice of his defendant brother, an attorney at law, in whom he had implicit confidence, that subsequent wills were void. 8. Wills 221-Plea of res judicata held not available as defense against annulment of probation of first will. In suit to set aside probation of first will, and to have probated in lieu thereof two sub 1. Judgment 414-When courts will afford sequent wills revoking first will, plea of res relief against judgment. Irrespective of Code Prac. art. 607, courts will relieve against judgments, irrespective of any issue of inattention or neglect, when circumstances under which judgment was rendered show deprivation of legal rights of one seeking relief, and when enforcement of judgment would be unconscientious and inequitable. 2. Equity 21-Equity will not permit one party to take advantage of and enjoy gains of ignorance or mistake of law by other, especially when fiduciary relation exists, Courts of equity will not permit one party to take advantage of and enjoy the gains of ignorance or mistake of law by the other, which he knew of and did not correct, especially when confidential or fiduciary relation existed between them. judicata held not available to defendant. Appeal from Civil District Court, Parish of Orleans; Percy Saint, Judge. Petition by William V. Gilmore to annul and set aside a judgment probating will of Ellen A. Gilmore. From a judgment granting relief prayed for, Joseph C. Gilmore appeals. Affirmed. J. C. & Thos. Gilmore, of New Orleans, for succession of Ellen A. Gilmore and appellant. Spencer, Gidiere, Phelps & Dunbar, of New Orleans, for appellee. By the WHOLE COURT. LAND, J. This is a suit by William V. Gilmore to annul and set aside a judgment, rendered September 5, 1923, probating the olographic will of his sister, Ellen A. Gilmore, deceased, of date June 21, 1904, and recognizing petitioner and his brother, Joseph C. Gilmore, as universal legatees under said will, and putting them in possession, in equal proportion, of all of the property of her estate. Pe The rescission of all proceedings had in the succession of decedent is demanded. titioner also seeks in this proceeding to have recognized as valid and admitted to probate two later olographic wills made by Ellen A. Gilmore, and dated, respectively, June 11, 1923, and July 5, 1923, in each of which the testatrix bequeathed to petitioner all of her property, and expressly revoked all former wills. The grounds of the action of nullity are that, for many days prior to August 20, 1923, the defendant, Joseph C. Gilmore, an attorney at law, and brother of petitioner, continuously advised petitioner, who is not a lawyer, that the later wills executed by the said Ellen A. Gilmore were scraps of paper, invalid, and of no effect, and that defendant continuously importuned petitioner to consent to the probate of the will of June 21, 1904, in which the defendant, Joseph C. Gilmore, and petitioner had been instituted universal legatees with equal shares, without disclosing the existence of the other two wills. Probation by petitioner of first will and execution of its provisions, which gave estate to him and his defendant brother in equal [1-3] 1. The main question submitted for shares, held not to estop him from seeking annullment 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 cient basis for an action of nullity under (102 So.) article 607 of the Code of Practice which | petitioner as universal legatee, and expressly provides that: "A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment." revoked all former wills. These later dispositions must necessarily prevail over the first will of 1904. R. C. C. arts. 1691, 1694. The effect of the advice given by Joseph C. Gilmore, the brother of petitioner, was to divest petitioner of a half interest in the property bequeathed to him under the last wills, and to vest this interest in Joseph C. Gilmore under the first will, which had been expressly revoked by the testator in the testaments subsequently executed by her. Petitioner was deprived of his just and legal rights under the later wills by the erroneous and clearly illegal advice of his brother, and to the evident enrichment of the latter, when under the later wills the brother of petitioner had been destituted of any claim whatever under the first will to any part of the property devised. It is true that said petition does not charge "fraud" or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate to afford relief against judgments, 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 of this country in actions of this character. Lazarus v. McGuirk, 42 La. Ann. 200, 8 So. 253; City of New Orleans v. Le Bourgeois, 50 La. Ann. 592, 23 So. 542. Courts of equity will not permit one party to take advantage of and enjoy the gains of ignorance or mistake of law by the other, which he knew of and did not correct, especially when a confidential or fiduciary relation existed between them. Pomeroy, Equity Juris. vol. 2, pars. 847, 848, 849, 956. and, being a layman, imposed implicit confidence in the counsel given him by his kinsman in regard to the estate of their late sister. Under such circumstances, petitioner was not estopped from employing new attorneys to bring the present action of nullity, notwithstanding the probation by petitioner of the first will and the execution of its provisions, as the enforcement of the judgment probating this will would be unconscientious 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. [4] 2. The evidence in the record sustains substantially the allegations contained in the petition. As testaments cannot take effect until the death of the testator, it is elementary that the testator is at liberty to revoke all former testaments at will. This right of revocation cannot be renounced or restricted by the testator. R. C. C. art. 1690. [5] It is to be presumed that attorneys, who have practiced law a number of years, are familiar with the law of this state on the subject of the revocation of wills. [6] The last two wills of Ellen A. Gilmore, executed in June and July, 1923, instituted [8] 4. Nor can the judgment sought to be annulled in these proceedings be pleaded by defendant, Joseph C. Gilmore, as res judicata to the action of nullity brought by his brother, William V. Gilmore. The plea of res judicata is therefore unavailing. Edwards v. Edwards, 29 La. Ann. 597; Anderson v. Benham, 40 La. Ann. 338, 4 So. 454; Lazarus v. McGuirk, 42 La. Ann. 200, 8 So. 253. The lower court annulled the judgment probating the first will, set aside all proceedings in the succession of Ellen A. Gilmore, recognized the validity of the two later wills, and held them admissible to probate. The judgment appealed from is correct. 2. Master and servant 401-Exception to petition under Employers' Liability Act not allowed, unless it presents real defense. Exception of no cause of action to petition under Employers' Liability Act, as amended by Act No. 38 of 1918, is technical rule of procedure, and will not be allowed, unless it goes to merits and presents real defense to case. 3. Master and servant 401-Notice of accident need not be alleged in petition, under Employers' Liability Act. Under Employers' Liability Act, § 15, failure to notify defendant of accident is matter of defense, and notice does not have to be alleged affirmatively in petition. 4. Master and servant 394-Court not bound by technical rules of procedure in cases under Employers' Liability Act. In cases under Employers' Liability Act, as amended by Act No. 38 of 1918, court is not bound by technical or formal rules of procedure, except as provided therein. 5. Master and servant 401-Petition with admission of answer held to contain necessary averments. In action for compensation for death under Employers' Liability Act, as amended by Act No. 38 of 1918, where supplemental and amended petition alleged that decedent was performing duty arising out of and incidental to employment by defendant, and defendant's answer admitted knowledge of decedent's death, necessary averments under paragraph 1, § 18, were supplied thereby. Certiorari to Court of Appeal, Parish of Rapides. Action by Caledonia Pickett Clark against the Alexandria Cooperage & Lumber Company, under Employers' Liability Act, for death of her husband, Henry Clark. On application of plaintiff for certiorari or writ of review to review judgment of Court of Appeal, affirming judgment sustaining exception of no cause of action. Judgments sustaining exception annulled and avoided, exception overruled, and case remanded. BRUNOT, J. When this suit was filed, the case of Bell v. Albert Hanson Lumber Co., 151 La. 824, 92 So. 350, was then pending on appeal. After issue was joined, the cases appeared to be similar in every material respect, and this case was permitted to rest, pending the decision of Bell v. Hanson Lumber Co. The Court of Appeal has accurately stated this case, and we quote that statement in full: "On the 2d day of May, 1921, plaintiff filed, in the District Court of Rapides parish, her petition, alleging in substance that the defendant is indebted to her, under the provisions of Act No. 20 of 1914, commonly known as the Burke-Roberts Employers' Liability Act, as amended by Act No. 38 of 1918, in the sum of from July 12, 1920, or a total of $4,800, with $16 a week for a period of 300 weeks, dating legal interest from judicial demand; that her husband, Henry Clark, was killed on July 12, 1920, while in the employ of defendant, his death being caused by the falling of a tree in a swamp near Alexandria, Rapides parish; that petitioner has two minor children, issue of her marriage with her said deceased husband, and that she and her children were wholly dependent upon her said husband for support; that she understands her said husband was receiv ing wages at the time of his death of not less than $30 a week, and that she has made amicable demand, but without avail. "On May 24, 1921, defendant filed its answer to plaintiff's petition, denying that it is due plaintiff anything, alleging that plaintiff's husband was not in its employ when killed or injured, and that Clark was an independent contractor at the time he got hurt. It further alleged that Clark was not carried on defendant's pay roll, and that he paid and discharged his own labor, as well as furnished his own tools and implements with which the work he was engaged in was carried on. It is admitted that amicable demand had been made without avail. "On June 26, 1922, defendant filed an exception of no cause or right of action, which was, by agreement of counsel, submitted on briefs on October 27, 1922." Pending the decision on the foregoing exception, plaintiff, with leave of the court, filed a supplemental and amended petition, detailing the particular kind and character of the work in which the deceased was engaged, and concluding with the averment "that at the moment of his death, as aforesaid, petitioner's said husband was performing a duty arising out of and incidental to his employment." The exception is leveled at the failure of the plaintiff to allege that the employer had knowledge of the injury and of the death (102 So.) of plaintiff's husband, or that notice of the | tive, had knowledge 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 employment in the course of his employer's trade, business, or occupation." The opinion of the Court of Appeal recognized that plaintiff's supplemental petition cures some of the defects relied upon by exceptor, but it holds that, as there is no allegation in either petition that the employer had knowledge of the accident, or that notice of it was given to him, as required by section 11 of Act No. 20 of 1914, as amended by Act No. 243 of 1916, the petition fails to disclose a cause of action; that, even if it be held that the suit constitutes notice, the suit was not filed within six months after Clark's death. [1] It is our conception of the law that in the application of the Employers' Liability Act the rule is that all technical defenses are abrogated. We recognize that there are exceptions to this rule, but it must be an extreme case to bring it within the exceptions. Lemieux v. Cousins, 154 La. 811, 98 So. 255; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677; Dick v. Gravel Logging Co., 152 La. 991, 95 So. 99; Philips v. Guy Drilling Co., 143 La. 951, 79 So. 549. [2] An exception of no cause of action to a petition under the Employers' Liability Act, being a technical rule of procedure, will not be allowed, unless it goes to the merits and presents the real defense to the case. Pierre v. Barringer, 149 La. 71, 88 So. 691; Dewey v. Lutcher-Moore Lumber Co., 151 La. 672, 92 So. 273. [3] A failure to notify a defendant of an accident is a matter of defense, and it does not have to be alleged affirmatively in the petition. Section 15, Act No. 20 of 1914; Smith v. White, 146 La. 313.1 Section 15, Act No. 20 of 1914, is as follows: "Be it further enacted, etc., that a notice given under the provisions of section 11 of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, or his agent or representa 183 So. 584. 102 SO.-7 In paragraph 2 of defendant's answer, filed long prior to the filing of its exception, defendant admits the death of plaintiff's husband, and its knowledge of the accident is revealed in the following section of that paragraph, in which the defense relied upon is alleged, viz.: "It specially denies that Henry Clark was in the employ of this company, and, on the contrary alleges that he was an independent contractor at the time he originally got hurt, and was not an employee of this company within the terms of the Employers' Liability Act as amended and that under the jurisprudence of this court as established by repeated decisions there can be no recovery under this state of facts." (Italics ours.) [4] In cases coming under the Employers' Liability Act, the court is not bound by any technical or formal rules of procedure, except as is provided in the act itself. The provisions of paragraph 1 of section 18 of the Act are that a verified complaint may be presented "setting forth the names and residences of the parties and the facts relating to employment at the time of injury, the character and extent of the injury, the amount of wages being received at the time of the injury, the knowledge of the employer or notice of the occurence of said injury, and such other facts as may be necessary and proper for the information of said judge, and shall state the matter or matters in dispute and the contention of the petitioner with reference thereto." [5] While the original petition may have omitted averments necessary to state a cause of action, the supplemental and amended petition supplies one of the omissions complained of, and the answer of defendant, by admission, supplies the other. We think the district court and the Court of Appeal were in error in sustaining the exception of no cause of action, and the judg ments sustaining that exception are annulled and avoided, and the exception of no cause of action is overruled, and the case remanded to the district court, to be proceeded with according to law; all costs of this court and the Court of Appeal to be paid by defendant, and other costs to await the final disposition of the case. |