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(100 So.) The purpose of the article is to exclude secoof the authentic act, or of the act under ondary evidence of the contents of such an in- private signature, duly acknowledged, that strument when it has been made the founda- the original was actually signed by the partion of a suit or defense, unless it has been ties thereto. The article contemplates, howmade to appear that there has been a com- ever, that if the proof of the execution of pliance with the conditions prescribed by the the original be made otherwise, the copy article. However, before it may be held that is admissible under the same conditions as article 2280 excludes the recorded copy of a those imposed for the admission of copies lost deed, or a copy, duly authenticated, made from the record of authentic acts and of from the copy of record, unless the loss be those under private signature, duly acadvertised in a newspaper, it is necessary to knowledged, which conditions do not include, consider article 2270 of the Civil Code, which | but rather exclude, the requirement of article relates exclusively to the admissibility of 2280 as to advertising the loss in a newssuch copies. Article 2270 provides that, paper.

[4] The next question for decision is wheth"When an original title, by authentic act, or by private signature duly acknowledged, the deed. The original instrument, judging

er it has been proven that plaintiff's signed has been recorded in any public oflice, by an officer duly authorized, either by the laws of from the copy offered, purports to have been this state, or of the United States, to make signed by them in person. Robert White tes. such record, the copy of such record, duly tified that plaintiffs were not present when authenticated, shall be received in evidence, the instrument was signed; that he signed it on proving the loss of the original, or show: for himself, and also for plaintiffs. Plaintiff's ing circumstances supported by the oath of testified that they were not present when the the party, to render such loss probable."

instrument was executed, and did not author

ize their coheir, Robert White, to sign their This article treats of a particular phase

names to it. On the other hand, the defendof the admissibility of secondary evidence, and is in the nature of an exception to the ant Charles White testified that each of the rule established by article 2280; and, being of plaintiff's was present when the deed was exsuch nature is not affected by the require-ecuted, and signed it in person. The official ment as to advertisement found in the latter before whom the deed was passed testified article. All that article 2270 requires is that he has no recollection of its execution, that the loss of the original be proved, or that but that he is positive that he has never passcircumstances, of sufficient force to render ed a deed, signed by one or more persons for the loss probable, supported by the oath of others, unless it appeared that they had au

thority to sign for the others, and then, we the party, desiring to offer the copy, be shown

gather from his evidence, the signatures were [3] Article 2270, however, expressly refers

so attached as to show who affixed them; only to copies made from the recorded copies and he further testified that he would not of authentic acts and of private acts, duly have passed the deed in the form in which it acknowledged. In this case the act was ap- appears to have been executed, unless all of parently intended to be an authentic one, those who signed, as vendors, were present but fell short of being such an act for the and signed their own names or affixed their reason that the clerk of court and ex officio

marks. B. H. Moore, who, properly speaking, notary public before whom it was passed act. is the only attesting witness to the act, testied not only as notary, but also as one of the fied that while he does not recall signing the two subscribing witnesses. The act cannot

instrument as a witness, yet that he has al be said to be a private one, duly acknowl

ways made it a practice not to attest an edged, for the reason that it was not ac- | instrument unless he saw the parties sign knowledged before the officer mentioned, or it or affix their marks to it, or at least, unless before some other officer, authorized to take they acknowledged in his presence that they acknowledgments, in the presence of two wit- had done so, and that he thinks he would not nesses. Therefore the act, being neither an have signed as a witness otherwise. The recauthentic one nor

a private one duly acknowledged, is a copy of the recorded copy execution of the deed, the defendant White

ord also discloses that, immediately after the inadmissible under article 2270, although it appears that it has been proved that plaintifis took actual possession of the property, lived signed the original, merely because article upon it, and cultivated it, and that, for 2270 refers expressly to copies of the record nearly 14 years thereafter, although all of the of only authentic acts and of acts under plaintiffs lived in the vicinity of the property private signature, duly acknowledged? We during a part of that time, and most of them conclude that the copy offered is not inadmis- during all of it, not one of them entered a sible under the article, if such proof has been protest against the taking of possession of it made. The only reason why the article is by defendant, or claimed any revenues thereworded as it is, is to make it clear that the from, or asserted any right of ownership to copies expressly referred to therein are ad- any part of the property, and did not assert missible without further proof than the proof such ownership until shortly prior to the afforded by the copies made from the record institution of this suit, and not until defend

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We

ant had granted an oil lease on the proper shall be test of appellate jurisdiction in prierty, and an expectation had arisen that oil mary election contests, was authorized under might be discovered in and under it.

Const. 1921, art. 8, § 12, requiring the LegislaIn our view it was extremely unlikely that ture to provide for trial and determination of

election contests. an officer of the law intrusted with the power of passing deeds and of receiving acknowledg. 4. Elections Om 154(10)-Evidence that voters ments would, in the discharge of the duties had no right to vote inadmissible in rebuttal. of his office, so prepare an instrument, and In primary election contest evidence that permit it to be signed in such a manner, as certain persons were without right to vote was to make it appear that the parties to it were not proper rebuttal evidence. present and signed it in person, when, as 5. Elections 154(91/2)-Evidence that voters a matter of fact, such was not the case,

were disqualified inadmissible where right to are, moreover, of the opinion that the con- vote not attacked in pleadings. duct of plaintiffs in relation to the property, Where, in primary election contest, a party during the long period mentioned, when they has not attacked the right of certain persons were aware that defendant was in possession to vote, in his pleadings, evidence that they are of it, and enjoying its fruits and revenues, disqualified is inadmissible, in view of Act No. is utterly inconsistent with any other theory 97 of 1922, 8 27. than the one that plaintiffs signed the deed. 6. Elections Cow 113—Registration of voters not Hence, in view of the evidence or defendant

subject to collateral attack in primary election that all the plaintiffs were present and contest. signed the deed, and in view of the foregoing Since Const. 1921, art. 8, § 5, and Act No. observations, we have no hesitancy in hold- 122 of 1921, $8 8, 9, 11, 12, and 13, provide ing that plaintiffs signed the instrument and direct proceedings to purge registration rolls, that the copy of the recorded copy thereof that voters at primary election had no right to offered in evidence was correctly held to be vote because not legally registered or not enadmissible by our brother of the lower court. titled to registration, could not be raised by The finding that plaintiff's signed the deed collateral attack on registration in primary

election contest. defeats their demand, there being no question that the copy offered in evidence shows that 7, Elections Sus 1.54(10)—Burden of showing the original act was sufficient to convey to

that ballots have not been tampered with in defendant plaintiffs' interest in the property.

election contest stated. The judgment appealed from is therefore

Burden is on one seeking a recount, or aflirmed, plaintiffs to pay the costs.

who desires to offer ballots in evidence in an election contest to show that they have not been tampered with, and that they have not

been placed in position to afford opportunity for (156 La.)

tampering with them. No. 26534.

8. Elections Cm 126(5)-Certificate of Secre. PEREZ V. COGNEVICH.

tary of State on ballots essential.

By the direct provisions of Act 97 of 1922, (Supreme Court of Louisiana. April 28, 1924.) 8 16, certificate of Secretary of State on ballots

is essential to their validity, and ballots not (Syllabus by Editorial Staff.)

containing such certificate should not be count. 1. Courts Cww224 (10)--Supreme Court has Ju.ed, though omission is due to oversight in printrisdiction of primary election contest for nom. ing. ination to office of parish assessor. Since, under Act No. 97 of 1922, $ 27,

9. Elections Om 126(5)-Ballot cast with num.

bered slip attached invalid. test of appellate jurisdiction in contested primary election cases is to be determined by Under the mandatory provision of Act 97 emoluments of office, Supreme Court has juris- of 1922, § 16, casting of ballot with numbered diction of contest for nomination to office of slip attached is fatal to its validity. parish assessor, emoluments of which are alleged to be in excess of $2,000.

10. Elections 0126(5)-Pencil dot on ballot

held not identification mark. 2. Constitutional law 56-When Legislature Ballot with pencil dot slightly below and to

may add to jurisdiction of Supreme Court and left of one of squares held not invalid as marked decrease jurisdiction of courts of appeal for identification. stated.

Legislature can neither add to jurisdiction 11. Elections Ema I 26(5)-Dots on ballots by of Supreme Court nor decrease jurisdiction of

defects in paper not identification marks. courts of appeal, where jurisdiction is fixed

Dots on ballots caused by defects in paper by Constitution, except when such instrument held not marks of identification. contains provision authorizing such legislation. 12. Elections Cum 126(5)–Irregular cross-mark 3. Courts fm 203_Statute prescribing test of held not to invalidate ballot. jurisdiction held constitutional.

Irregular cross-marks on primary election Enactment of Act No. 97 of 1922, & 27, pro- ballot held not to invalidate it, cross-mark not viding that emoluments of office for full term being required to be perfect.

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

(100 So.) 13. Elections Om 126(5)-Erasures on primary, mines. Plaintiff has appealed from this judgelection ballot held to invalidate it.

ment. Defendant has filed an answer to the Erasures on primary election ballot, which appeal, in which he avers that certain votes might serve as identification, held to invalidate not allowed him by the lower court should ballot.

now be allowed, and that certain votes al14. Elections Em 126(5)-Failure of precinct | lowed his opponent by that court should be

register to show party affiliations held not to rejected. He has also filed a motion to disinvalidate ballots at primary election.

miss the appeal on the ground that this court That precinct register did not show party is without jurisdiction. affiliations of voters at primary election held not to render their votes invalid, applications

Motion to Dismiss. for registration showing that such voters bad

It is pleaded that we have no jurisdiction registered as members of party. holding pri- in this case, first, because it is not alleged mary, and poll lists showing that they were

that the nomination in controversy has any members of such party.

value; and even if it were alleged to have Leche, J., dissenting in part. St. Paul, J., dis- such value as to vest us with , jurisdiction, senting in part, but concurring in the result.

still, in truth and in fact, there is nothing Appeal from Twenty-Ninth Judicial Dis- involved but a political right, not properly trict Court, Parish of Plaquemines; William appreciable in money; and that, in cases

involving such rights, the appeal lies, not to H, Byrnes, Judge ad hoc.

this court, but to the proper court of appeal. Suit by Eldredge N. Perez against Marc It may be said, at the outset, that an ap Cognevich, to contest a primary election. peal in a case in which a political right is Judgment for defendant, and plaintiff ap- in contest lies to the court of appeal of the peals. Affirmed.

circuit in which the case arose, save where James Wilkinson and John R. Perez, both it appears that this court has been grantof New Orleans, for appellant.

ed jurisdiction. Sections 29, 35, and 77 of A. Giffen Levy, of New Orleans, for appel- article 7 of the Constitution of 1921. But lee.

this observation merely leaves us where we

started, and leaves for determination, in all By the WHOLE COURT.

of its fullness, the real question to be deter

mined; that is to say, the one whether it apOVERTON, J. At the recent Democratic pears that this court has been granted jurisprimary election, plaintiff and defendant diction in cases such as the one now before were opposing candidates for nomination for us. the office of assessor in the parish of Plaque There is nothing in the present constitumines. When the returns were promulgated, tion (that of 1921) which vests us with jurisit appeared that plaintiff had received 619 diction in contested primary election cases, votes and defendant 631. Defendant, hav- unless it be the provision in section 10 of ing, therefore, received a majority of 12 article 7 of that instrument, which grants votes over plaintiff, was declared the nom- us jurisdiction in all cases in which the inee by the parish Democratic executive amount involved exceeds $2,000, exclusive of committee. Plaintiff then brought this suit interest, or, in other words, in which the to contest the result of the election, basing value of the thing in contest exceeds that his cause of action on various grounds. De amount. In the present case it is not alfendant filed an answer, in which he puts at leged that the nomination in controversy is issue these grounds, and in which he avers, worth an amount exceeding $2,000, though it in addition, that certain votes were cast for is alleged that the emoluments of the office plaintiff that are illegal, and should be de of assessor in the parish of Plaquemines exducted from the total vote declared by the ceed $5,000. If the office itself were in conparish Democratic executive committee to test, it could be easily held, under the conhave been received by plaintiff. In his an- stitutional provision just cited, in view of swer defendant also avers that two boxes, if the emoluments of the office, that this court not more, should be opened and recounted, has jurisdiction, for then the value of the and that, upon a recount of these boxes, and thing in contest would exceed the lower upon the rejection of the illegal ballots there limit of our jurisdiction. In this case, howin contained, the result will be to further in- ever, it is only the nomination which is increase his majority. His prayer is that volved, and the nomination does not entitle plaintiff's demand be rejected.

the one receiving it to the emoluments of the The case was promptly tried, the trial office. Still, as the emoluments of the aslasting approximately two weeks. The trial sessorship exceed $5,000, and as the nomicourt found that defendant had received a nation for that office is one by the dominant, majority of three votes, and, therefore, ren- and perhaps the only, political party in the dered judgment in his favor, recognizing parish of Plaquemines, and as it is unlikely, him as the Democratic nominee for the of- therefore, that the nominee will meet with fice of assessor in the parish of Plaque- 1 defeat at the general election, it might be

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

held that the nomination itself is worth over, cept Governor and Lieutenant Governor), which $2,000, and, hence, that the appeal lies to trials shall be by the courts of law, and at the this court. We are, however, not strongly in- domicile of the party defendant." clined to the view that the motion to dismiss

The foregoing section has reference to for want of jurisdiction should be decided on

primary elections as well as to elections by that basis, but rather upon a different one, the people. It is a mandate to the Legislawhich is the following:

ture to enact laws for the trial and determi[1] Section 27 of Act 97 of 1922 provides: nation of such cases in the courts of law. "That in elections held under the provisions The section, it is true, contains no express of this act [the primary election law] all con authority authorizing the Legislature to say tests shall be made before the courts of the to what court the appeal should be taken, in state, as herein prescribed, which are hereby the event the party cast should desire to apfully vested with the necessary power, author- peal, but we think that this authority is ity, and jurisdiction to hear, try, and determine fairly implied in the command given, and the same.

The party cast shall have that the exercise of it is necessary in order the right to appeal as in other cases, on, giving to fully and properly execute that command. bond for a sum to be fixed by the court to cover cost of all courts, the emoluments of the If there should be anything in the Constituoffices involved for the full term being hereby tion, of a general nature, which apparently made the test of the appellate jurisdiction. stands in the way of the full and proper ex

ecution of this special mandate, such provi

sion must be considered as yielding, for the It is clear from the foregoing legislative purpose of permitting the full execution of provision that the test of the appellate ju- the mandate. Taxpayers' Association v. risdiction of this court, in contested primary New Orleans, 33 La. Ann. 568; Davidson v. election cases, is to be determined by the em- Houston, 35 La. Ann. 493. oluments of the office for which the nomina

For the foregoing reasons, we are not of tion is made. Therefore, when the office has the opinion that the motion to dismiss no emoluments, or when the emoluments are should be sustained. $2,000 or less for the full term, then, by reading the provision cited, in connection

The Merits. with the sections of the Constitution defin

[4, 5] After both plaintiff and defendant ing the jurisdiction of the Courts of Appeal, had closed in chief, the former offered eviwhich it was the manifest intention of the dence to show that a number of persons Legislature should be done, it at once be who cast their ballots for defendant had no comes clear that an appeal lies and is re- right to participate in the election. The efturnable to the Court of Appeal of the cir- fect of this evidence was to inject into the cuit in which the case arose. On the other case the right of persons to vote, whose hand, when the emoluments of the oflice for right to do so had not been questioned in the which the nomination is made exceed $2,000 pleadings, nor by any evidence offered up to for the full term, then, by reading the pro- that time. Defendant objected to this evivision quoted in connection with the section dence chiefly upon the ground that it was of the Constitution defining the jurisdiction not evidence in rebuttal, but the court overof this court, it at once becomes clear that ruled the objections. The objections should an appeal lies, and is returnable, to this have been sustained. Plaintiff, in order to court.

show that these persons were without right [2, 3] It is argued, however, that the Leg- to vote in the election, if such were the case, islature can neither add to the jurisdiction should have alleged, in his petition, their of this court nor decrease the jurisdiction of names and the reasons why they were withthe courts of appeal, since the jurisdiction out right to vote therein. Section 27 of Act of those courts is fixed by the Constitution, 97 of 1922; Thornhill v. Wear, 131 La. 479, and defendant cites, in support of his posi- 59 South. 909. He then should have offered tion, State v. Mayer, 117 La. 945, 42 South. this evidence in chief, and not in rebuttal. 435. Such unquestionably, is the rule where the evidence was not, in any proper sense, the jurisdiction of the courts affected is rebuttal evidence. fixed by the Constitution, except when that

The votes of some of those thus brought instrument contains a provision authorizing into question were later allowed by the lowthe Legislature to enact such legislation. er court for the reason that the court was of We think that in this particular instance the opinion that the evidence thus introthe Constitution contains a clause authoriz- duced did not show that those who cast ing the enactment of the provision quoted. these ballots were without right to vote in The clause referred to is section 12 of ar- the primary. However, while defendant was ticle 8 of the Constitution of 1921, and reads not injured in some respects by the ruling as follows:

made, yet, in other respects, he was, for up"The Legislature shall provide by law for on the whole he lost 7 votes by the overrulthe trial and determination of contested elec-ing of the objection, which he would not have tions of all public officers, whether state, dis- lost had the objection been sustained. The trict, judicial, parochial, municipal, or ward (ex- | votes thus lost by him are those referred to

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(100 So.) in the briefs as the three Dobsons, the two | Smith v. Police Jury, 125 La. 731, 51 South. Gleasons, Grub, and E. A. Schayot. The 703. trial court erred in deducting these votes For the foregoing reasons we conclude that from defendant's total. They should be al- the trial judge was correct in refusing to lowed. On the other hand, plaintiff objected sustain the attack here considered upon the during the course of the trial, to evidence right of these persons to vote. offered by defendant to show that Mr. and Mrs. Serpas and Will Alfonso, who cast their Opening of Ballot Boxes and Recount. votes for plaintiff, had no right to vote in

Plaintiff, in his petition, demanded a rethe election. The objection was based upon count of the ballots in certain boxes. Dethe ground that defendant had not attacked fendant objected to the recount on the in his answer the right of these persons to ground that it did not appear that the clerk vote, and hence that the evidence offered of court had safeguarded the ballots to an was inadmissible. The objection is well extent sufficient to exclude the hypothesis founded, and should have been sustained. that they had been tampered with. The obAs a result of the ruling, plaintiff lost the

jection was overruled. three votes mentioned. The trial court erred

[7] The law places the burden upon him in deducting them from the total vote re who seeks the recount, or who desires to ceived by plaintiff. They should be counted. offer the ballots in evidence, to show that Collateral Attack on Registration.

they have not been tampered with, and that

they have not been placed in a position to
Defendant attacked the votes of 8 persons afford an opportunity for tampering with
who voted at the Ostrica poll, Third pre- them. Thornhill v. Wear, 131 La, 739, 60
cinct, Fourth ward, on the ground that these south. 228; Koepp v. Crawford, 138 La. 852,
voters resided outside of that precinct, and 70 South. 858. Plaintiff, we think, has rea-
therefore had no right to vote in it. Defend- sonably carried that burden. We may say,
ant also attacked the vote of Anthony Jur- however, that the opening of the ballot box-
govi who, he contended, lived at Olga, but
who voted at Boothville, in another ward, es did not operate to plaintiff's benefit, due
on the ground that Jurgovich had no right to defective ballots found in them, though it
to vote at the latter place. On the other may be also said that plaintiff did not lose
hand, plaintiff attacked the vote of Emile his case by having the boxes opened.
Martin, Sr., the registrar of voters, on the Ballots Without the Certificate of the
ground that in registering he administered

Secretary of State,
the oath required by law to himself, and
hence that his registration was null.

It was found, on opening the box from The eight voters who voted at Olga dia Doullut’s canal, that it contained four ballots, not change their residence after they regis- without the certificate of the Secretary of tered, nor did Jurgovich change his. Each State printed on them; and when the box voted at the polling place indicated in his from Home place was opened it was found registration papers.

that it contained one ballot without that If these persons had no right to vote be- certificate. These ballots were for plaintiff. cause they were not entitled to a place up- Defendant objected to the counting of these on the registration rolls, or because they votes for the reason that there was not were not entitled to registration as voters printed on them the certificate mentioned. in the precinct in which they registered as The contention of plaintiff is that the failure such, or because their registration did not to print the certificate of the Secretary of comply with the law in other respects, the State on these ballots was due to an acciproper proceeding should have been taken to dent, or to an oversight of the official printpurge their names from the rolls. Both the er, in printing them.

The absence of the Constitution and the enactments of the certificate from them, it may be said, was, Legislature contemplate direct proceedings in all likelihood, due to such a cause. The against a voter to strike his name from the question, however, is: Should these votes, in rolls, except, of course, when it appears that view of this oversight, be rejected? The anthe voter has died, or it appears that since swer to this question depends upon the prohis registration he has been convicted of a visions of the primary election law. Section felony, or has been declared insane. Section 16 of that law (which is Act 97 of 1922) pro5, art. 8, Constitution of 1921; sections 8, vides: 9, 11, 12, and 13 of Act 122 of 1921.

“That the primary election ballots used in [6] Were we to give our sanction to the all primary elections for United States senators, attack here made, we could do so only by congressmen, governor, and other officers vot: ignoring the methods provided by law for ed for throughout the entire state, or voted purging the rolls, and by permitting what is for in any district, parish, or ward in this state,

* shall be furnished by [the] Secretary equivalent to a collateral attack upon the

of State, at the expense of the state. registration of the voters in question, which, All said ballots shall be printed upon white paof course, we cannot do. See Turregano v. per, of uniform quality, texture, and size, and Whittington, 132 La. 454, 61 South. 525, and printed in black ink, and each ballot at the

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