
    (44 South. 452.)
    No. 16,401.
    ACKERMANN v. LARNER et al.
    (January 7, 1907.
    On the Merits, April 29, 1907.
    Rehearing Denied June 17, 1907.)
    1. Appeal — Dismissal — Grounds — Waiver of Objections.
    Plaintiff obtained judgment against defendant in solido for the sum of $11,350, with legal interest from January 1, 1891, until paid, subject to an offset of $5,005.
    Defendant appealed, and, for the purpose of fixing the amount of appeal bond for a suspensive appeal, calculated the amount due upon the whole judgment, with deduction of the offset.
    Plaintiff claims that in making such deduction defendant acquiesced in the judgment. That position is not tenable. Defendant is entitled to a suspensive appeal, and the law itself fixed the terms and conditions upon which it could be granted. Defendant’s action was not voluntary, but in compliance with the requirements of the statute. Defendant had to deal with the judgment temporarily and for the par-poses of the appeal as found.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 957.]
    2. Same.
    Plaintiff claims that defendant is not entitled to an appeal, having pleaded compensation of plaintiff’s demand in part on the trial of the case.
    This proposition is not well taken. Defendant contended throughout that plaintiff’s demand be rejected in its entirety; but, in the event that the court render judgment in any. manner, it should be for the balance fund after an adjustment resulting from an accounting.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 953-957.]
    On the Merits.
    3. Fkatjduijent Conveyances — Actions to Set Aside — Evidence.
    Involves only questions of fact.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; George I-Ienry Théard, Judge.
    Action by Miss Catherine V. Ackermann against Mrs. Catherine Larner, widow of William H. Peters, and others. From a judgment in favor of plaintiff, defendants appeal.
    Judgment set aside, and suit dismissed.
    See 116 La. 101, 40 South. 581.
    Pierson, Walton & Pierson and Dinkelspiel, 1-Iart & Daves', for appellants. Edwin Howard McCaleb and James Barkley Rosser, Jr., for appellee.
   Statement of the Case.

NICHOLLS, J.

In this case the district court rendered the following judgment:

“It is ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Miss Catherine V. Ackermann, and against defendant, Mrs. Catherine Larner Peters, in solido, for the sum of $11,350, with legal interest from January 1, .1891, until paid, and all costs of suit subject to an offset of $5,005.”

The judgment was read in open court on October 16, 1906; but, under a remittitur of the plaintiff, the judgment wasi modified and made to read by a judgment on the new trial (rendered on October 30, 1906) “with legal interest from October 10, 1891, in accordance with the remittitur.”

On November 2, 1906, on the application of Mrs. W. H. Peters, née Catherine Larner, she was granted a devolutive appeal to the Supreme Court from the judgment against her; the bond therefor being fixed at the sum of $250.

On the same day, on application of Miss Catherine L. Peters, she was granted appeals to the Supreme Court, both devolutive and suspensive, from the judgment rendered against her; the bond for the devolutive appeal being fixed at the sum of $250, and the bond for the suspensive appeal for the amount required by law. On the 8th of November, 1906, Mrs. W. I-I. Peters executed an appeal bond for $250. Miss Catherine Peters, on the same day, executed and filed one for the sum of $23,000.

The transcript of appeal was filed on the 20th of November, 1906. On the 23d of November plaintiff filed a motion to dismiss and set aside the appeal taken by Miss Catherine L. Peters on the following grounds, and reasons :

First. That Miss Catherine L. Peters, defendant and appellant, failed to comply with the order of the court a qua granting her an appeal from the final judgment rendered by said court.

Second. That the amount of the bond furnished and filed by the said Miss Catherine L. Peters is insufficient for a suspensive appeal, as the same does not exceed by one-half, over and above the amount of the judgment rendered by the lower court in favor of mover, plaintiff and appellee, and against her, the said Catherine L. Peters, defendant and appellant.

Third. That defendant and appellant Catherine L. Peters had, by deducting the amount of the offset allowed in compensation- in favor of defendant from the amount of the judgment rendered in plaintiff’s favor against her, and computing the amount of the appeal bond, on the balance remaining after making such deduction, thereby acquiesced in and partially executed said judgment, as appears upon the face of the papers contained in the record, and cannot appeal therefrom.

In view of the premises, plaintiff and appellee prayed that the appeal herein taken by Miss Catherine L. Peters from the final judgment herein rendered and signed by the lower court, in favor of plaintiff and against said defendant, be dismissed and set aside, and that execution do issue on said judgment and for all costs and general relief.

On the 1st of December, 1906, the plaintiff filed a motion to dismiss the devolutive appeal taken by Mrs. Catherine Larner, widow of William H. Peters, on the following grounds:

First. That the said defendant, Mrs. Catherine Larner, widow of William H. Peters, deceased, has confessed the correctness of the plaintiff’s demand, by setting up a plea of compensation, offering evidence in support thereof, and obtaining judgment in her favor thereon.

Second. That said plea of compensation admits the correctness of the plaintiff’s demand (Ashley v. Sholars, 22 La. Ann. 442), and said defendant cannot now be heard to question the validity or correctness thereof.

Third. That the plea of compensation admitting the correctness of the plaintiff’s demand, is tantamount to a confession of judgment, which estops and prevents said defendant making said plea from taking an appeal from the said judgment rendered in plaintiff’s favor.

Fourth. That said devolutive appeal taken by said defendant from the final judgment rendered by the lower court is frivolous on its face, and she is estopped and debarred from prosecuting the same.

In view of the premises, plaintiff and appellee prayed that the devolutive appeal herein taken from the final judgment rendered by the court a qua by Mrs. ’Catherine Larner, widow of William H. Peters, deceased, be dismissed and set aside, at her costs, and for general relief.

On Motion to Dismiss Appeal of Miss Catherine L. Peters.

The first ground for dismissal is so general that we would be justified in not considering it. In the brief filed on behalf of appellees,counsel say:

“The defendant Miss Catherine Peters did not file any bond for her devolutive appeal before the return day. She must be considered as having abandoned the same. Coudroy v. Pecot, 51 La. Ann. 495, 25 South. 270. She did file a bond for a suspensive appeal in the sum of $20,000, but this appeal bond is not sufficient in amount.”

From this we are led to suppose their contention is that, should they successfully attack the suspensive appeal bond, and have the appeal dismissed as not being suspensive in character, that dismissal would carry with it the dismissal of the devolutive appeal as a necessary consequence, unless, in order to avoid such a result, appellant bad filed before the return day a second appeal bond for $250.

In this case the judge fixed the amount for a devolutive appeal, and it was executed and filed within the return day. The decision in Coudroy v. Pecot, 51 La. Ann. 495, 25 South. 270, therefore would have no application in the matter of the present appeal, even if the suspensive appeal bond were insufficient in amount to hold the appeal as a suspensive one. The bond, if insufficient for that purpose, would be good for a devolutive appeal. The bond furnished, however, is not in fact insufficient for a suspensive appeal. Appellee says the

Amount of the judgment is for......$11,350
Legal interest at 5 per cent, on the judgment from October 10, 1891, to October 30, 1906, being 15 years and 20 days ......................... 8,544
Total amount, principal and interest. .$19,894 One-half over and above this amount
(Code Prac. art. 575) is............ 9,947
$29,841
—for which the suspensive appeal bond should have been given, but it was only given for $23,-000, showing a deficiency of $6,841.

Appellee in making the calculation ignores the words “subject to an offset of $5,005.” Those words are a part of the judgment, and the proper deduction has necessarily to be made on account of them. Levy v. Roos, 32 La. Ann. 1029; Chaffe, Powell & West v. MacKenzie, 43 La. Ann. 1062, 10 South. 369.

There was only one and not two judgments 'rendered by the district court.

The contention made by the appellee that ■appellant acquiesced in and partially executed the judgment appealed from, by computing the amount of the appeal bond on the balance remaining on the judgment after the •deduction of the credit given, is untenable. Appellant was unquestionably entitled to an appeal, and the law itself fixed the terms and ■conditions upon which it could be made suspensive. Her action was not voluntary, but in compliance with the requirements of the •statute. She had to deal with the judgment temporarily and for the purposes of the appeal as she found it. When the case is reached by this court on the merits, the judgment appealed from will be subject to review as an •entirety and as rendered. Chaffe v. MacKenzie, 43 La. Ann. 1062, 10 South. 369.

Appellant’s counsel correctly say:

“If the mere computation made by the defendant for the purpose of ascertaining the •amount of the suspensive bond be an acquiescence in partial execution of the judgment which bars the appeal, then the law giving the right to appeal is nullified by its own terms in perfecting the appeal.”

The decision in Kansas City, etc., v. Murray, 47 Pac. 835, 57 Kan. 697, relied on by appellee, was rendered upon a state of facts •entirely different from those upon which we are called upon to act. The defendant in that ease, after judgment for a fixed, unqualified amount had been rendered against it, voluntarily moved the court to have the amount of that judgment reduced by the amount of a judgment in its favor which had not been referred to or dealt with in the case itself. The court, with the consent of the plaintiff, made the reduction, and defendant •then sought to appeal from the judgment as reduced. The court held that it had itself ¡partially executed the judgment and thereby estopped itself from appealing. The application to dismiss this appeal is refused.

On Motion to Dismiss the Appeal of Mrs. W. H. Peters.

Appellees move to dismiss the appeal of Mrs. Peters for the following reasons:

First. That the said defendant Mrs. Catherine Larner, widow of William H. Peters, deceased, has confessed the correctness of the plaintiff’s demand by setting up a plea of compensation offering evidence in support thereof and obtaining judgment in her favor thereon.

Second. That said plea of compensation admits the correctness of the plaintiff’s demand (Ashley v. Sholars, 22 La. Ann. 442), and said defendant cannot now be heard to question the validity or correctness thereof.

Third. That the plea of compensation admitting the correctness of the plaintiff’s demand is tantamount to a confession of judgment, which estops and prevents said defendant making said plea from taking an appeal from said judgment rendered in plaintiff’s favor.

Fourth. That said devolutive appeal, taken by said defendant from the final judgment rendered by the lower court, is frivolous on its face, and she is estopped and debarred from prosecuting the same.

There is nothing in the record which would warrant the assertion that Mrs. Peters had confessed the correctness of the plaintiff’s demand. She has contested it from the beginning, and is still contesting it. She has contended, throughout that plaintiff’s demand should be rejected in its entirety, but, in th ' event that the court should render judgment in any manner, it should be for the balance fund after an adjustment resulting from an accounting. This court, when the case was first before it (40 South. 581 ), did not render a final judgment in favor of the plaintiff. On the contrary, it declared that matters were not in a condition to enable it to do so and remanded the cause to the district court for an accounting and the fixing of the balance which might be due as the result of the same. The court on the return of the case lias fixed the balance. Either or both of the parties were free to appeal to this court (for a final decree in the premises) as to the balance due. That, we think, cannot be disputed. Defendant has at no time lileaded compensation, as appellee claims she has. The right of neither party has as yet been finally liquidated.

Whether appellant’s appeal be frivolous or not is a matter to be ascertained after hearing.

The application to dismiss the appeal of Blrs. W. II. Peters is denied, and her appeal is maintained.

On the Blerits.

PROVOSTY, J.

This case, in outline, beginning at the beginning is this: In the early part of October, 1890, the plaintiff, Miss Ackermann, who already owned a house, in which she lived, on Orange street, and household and other effects worth over $882, inherited and received, as universal legatee of one I-Iall, $17,585 in cash. This sum, by the payment of certain debts and charges, was reduced to $14,300. Her best friends were the Peters family, composed of Mr. and Mrs Peters and their three daughters, Blary, Catherine, and Clara. Bliss Blary Peters at that same time was owner of two improved lots, worth $5,000 or $6,000, on which there rested a mortgage debt of $3,000. Bliss Ackermann, within a few days after receiving her money, suggested that the mortgage notes be taken up, and she loaned Bliss Blary Peters $3,000 for that purpose, and took her interest-bearing note for the amount. The mortgage notes, however, were not taken up, but, with the permission of Bliss Ackermann, $1,000 of the $3,000 was used for paying debts of Blrs. Peters. What was done with the remaining $2,000 the record does not show. Within a few days after this, Miss Ackermann came to live in the house with the Peters family, under an arrangement which she says was simply that she should pay a board equivalent to the interest on the $3,000 note; and which the Peters say was that she should give to Blrs. Peters what remained of her money, namely, $11,300, and that Blrs. Peters should maintain and support her during life and bury her when dead.

At that same time, one Hoffman brought suit against Miss Ackermann as universal legatee on a claim of $1,500. Very shortly afterwards, namely, on the 30th of December, 1890', Bliss Ackermann made a sale of her Orange street property to Bliss Clara Peters for $2,100. She says that this was a sham sale designed to screen the property from, the judgment which Hoffman was seeking to obtain against her. The Peters say that the sale was a real bona fide sale.

The Hoffman suit resulted in a judgment for $700. This judgment could not be executed, for want of property to seize. After 10 years, in 3901, Hoffman issued execution on it and garnished Mrs. Peters and her three daughters. The garnishees answered that they owed Bliss Ackermann nothing, and had no property of hers. Blrs. Peters, however, added to her answer the following:

“About 10 years ago, or more, I promised Bliss Ackermann to support and care for her and furnish her with the • necessities for maintenance during her life.”

Hoffman traversed these answers, and on this traverse Blrs. Peters and Misses Blary and Clara Peters (Blrs. Gardiner) were examined as witnesses.

Mrs. Peters testified:
“Bliss Ackermann gave me all the property she had, in consideration of my undertaking to maintain and support her during life and bury her when dead.”

She testified also that she “considered” that the amount loaned to Miss Mary Peters was included in this donation. In the course of the same examination, however, she stated that the agreement between Miss Ackermann and herself comprised only the cash balance Miss Ackermann still had on hand, namely, $11,300; that the $3,000 loan to Miss Mary Peters was a different contract and transaction; that Miss Ackermann continued to hold this $3,000 note as an existing obligation. _ Miss Mary Peters testified that she had all along expected to pay the note; that Miss Ackermann had never called on her for payment; that she supposed the reason was that her mother had given “consideration” for the note by entering into a contract with Miss Ackermann to give her all that she needed for her personal wants during her life; that she was not present at the making of this contract, and knows nothing of it, except what she afterwards heard her mother and Miss Ackermann say.

Mrs. Clara Peters Gardiner testified that she was not present at the making of the contract between her mother and Miss Ackermann, but that she heard the matter discussed in the family, and that Miss Ackermann agreed to turn over all that she possessed. “Q. You mean by that all the money that she had? A. That is what I mean.”

After this testimony had been taken, Hoffman discontinued his garnishment proceedings, and brought an action en declaration de simulation against Miss Ackermann and Miss Catherine Peters. He alleged that the sale of the Orange street property hy Miss Ackermann to Miss Clara Peters had been a sham, and that the property still belonged to Miss Ackermann; that four other pieces of property acquired at different dates during the years 1891 and 1892 by Miss Catherine Peters, belonged also to Miss Ackermann, they having been bought and paid for by Miss Ackermann, but in the name of Miss Catherine Peters, so as to screen them from his judgment. To this suit Mrs. Clara Peters Gardiner was not made a party. The reason was-that, previous to her marriage, she had transferred the Orange street property to Miss: Catherine Peters by a sham sale.

On the trial of this suit, Miss Ackermann appeared as a witness for I-Ioffman. She-testified that the sale of her Orange street property to Miss Clara Peters was a sham y that the $3,000 note of Miss Mary Peters was for a loan, and was due; that after lending this $3,000 she had $11,500 left;, and that with this money she made, during the years 1891 and 1892, the purchases in. the name of Miss Catherine Peters, as alleged by Hoffman. She produced the $3,000 note' of Miss Mary Peters, and said that a few months back, she had asked that it be renewed, and that this had been refused.

On the same trial, Miss Catherine Peters,, who was the codefendant of MiSs Ackermann, testified that the amount given to Mrs. Peters-by Miss Ackermann was $11,300, and that it was what was left after Miss Ackermann had made certain payments and had loaned the-$3,000.

Judgment went against Hoffman. Hoffmann v. Ackermann, 110 La. Ann. 1076, 35. South. 293.

Thereupon Miss Ackermann brought suit against Miss Catherine Peters. She alleged that she (the petitioner) was the owner of' the Orange street property; that the sale of it to Miss Clara Peters had been a sham,, and the transfer of it by Miss Clara to Miss Catherine Peters had also been a sham; and also that she (the petitioner) was the owner of the other pieces of property acquired during the years 1891 and 1892, the same having been bought and paid for by herself, but in. the name of Miss Catherine Peters. She-prayed to be decreed the owner of said properties.

Shortly after the filing of thia suit, Miss. Ackermann removed from the Peters home, -where she had lived for over 12 years.

On the trial of that suit, Miss Ackermann -testified as before.

Mrs. Clara Peters Gardiner also testified. 'She denied that Miss Ackermann’s sale of -the Orange street property to her had been -a sham. She said that she had paid for the property with money received from her -mother.

Miss Catherine Peters repeated the testimony given by her in the former suit, to -the effect that Miss Ackermann had inherit- ■ ed $17,585; and that, after making certain payments and lending the $3,000, she had $11,300 left; and that it was this sum she had given Mrs. Peters under the contract for maintenance and support.

The case having been decided against Miss Ackermann (113 La. Ann. 156, 36 South. 923), •she brought the present suit against Mrs. Peters, Miss Catherine Peters, and Mrs. ■Gardiner. She alleges that on or about October 10, 1890, she had $11,500 in cash; that she made a manual gift of said sum to Mrs. Peters in consideration of Mrs. Peters undertaking to maintain and support her during her life and bury her when dead; that said • donation was void, because thereby she had divested herself of all she had, without retaining enough for her subsistence; that Mrs. Peters, turned over said money to her two ■daughters. She prays that the donation be ¡annulled, and that defendants be condemned "to return to her the $11,500.

Defendants urgednumerous defenses, among -which was the following: That the onerous donation was not $11,500, as alleged, but only •of $11,300. That said sum did not constitute ••all that the plaintiff had, but that she still •retained the following property: The $3,000 note of Miss Mary Peters, which was a good mote; the Orange street property, or the proceeds thereof, $2,100; and over $800 worth of household and other effects. That this property was ample for her subsistence, especially in connection with the valuable right to support and maintenance under the contract with Mrs. Peters. That the onerous donation was not null, but that, if it was held to be so, plaintiff should recover only after deduction of the amount furnished her by way of support and maintenance under said onerous donation, which was more than $6,000.

In the trial court, the case was decided against Miss Ackermann. On appeal to this court, that judgment was set aside, and all the issues in the case were finally disposed of, except the one which is raised by the defense hereinabove set forth; and the case was remanded to be tried on that issue. The remanding decree reads, as follows:

“It is therefore ordered, adjudged, and decreed that as to Clara M.- Peters, wife of W. D. Gardiner, the judgment appealed from be affirmed, and that as to Miss Catherine L. Peters said judgment be annulled, avoided, and reversed, and the case remanded for the sole purpose of enabling said defendants, as also the plaintiff, to offer evidence as to the property owned by the plaintiff upon and after January 1, 1891, and as to the costs of her maintenance in the Peters family, from, say, October 15, 1890, to May 19, 1903.” 116 La. Ann. 101, 40 South. 581.

A trial was had on the issue as thus restricted, namely, what property did Miss Ackermann still have on the 1st of January, 1901, i. e., after the donation of October 10, 1890.

Defendants proved that at that date — that is to say, after she had made the donation of $11,300 — she still had the following property: The $3,000 note of Miss Mary Peters, which was a good note; the $2,100, proceeds of the Orange street property; and over $882 worth of household and other effects. And that under the onerous donation more than $5,000 had been given her by way of board, cash money, etc., etc.

Miss Ackermann repeated the testimony given by her in the Hoffman suit, to the effect that the sale of the Orange street prop-erty had been a sham sale; that she had not made any donation whatever to Mrs. Peters 'but had purchased during the years 1891 and 1892, in the names of Clara and Catherine Peters, the several pieces of real estate •of which she had claimed the ownership in her former suit. She added, however, that ■the Peters family pretended that she had donated the sums thus invested, and that these sums aggregated $11,350.

Upon the foregoing pleadings and facts, mo other judgment can be rendered than that Miss Ackermann retained enough for her subsistence. Neither in the pleadings nor in the testimony, in the present case, does any ■■one pretend to say that the donation embrac- • ed anything more than the eleven thousand, ■odd hundred, dollars that were left to Miss Ackermann out of her legacy after she had :made the payments and the $3,000 loan.

True, Mrs. Peters and Misses Clara and Mary Peters did say, on the traverse of the .answers in garnishment, that Miss Ackermann had given all her property; but they, in the course of the same examination, qualified that statement by saying that what they meant was that Miss Ackermann had •given all her money, and that the amount giv»en was $11,300. Let it be noted that the $3,-000 note had been long prescribed, and the renewal of it been refused, when the garnishment proceedings were taken; and that therefore the Peters family would have had no interest in testifying on the traverse of the ■answers in garnishment that said note had been included in the donation. Let it be noted, further, that the defendant herself, Miss Catherine Peters, has never varied one iota from her statement that what was given was the $11,300 left after the debts and charges had been paid and the loan of $3,000 made. And let it be noted, finally, that the ■question of whether or not the sale of the •¡Orange street property to Miss Clara Peters was a sham sale is now res judicata against the present contention of Miss Ackermann.

The date of the donation is alleged in the petition to have been October 10, 1890, and that date is correct, within a day or two, according to the evidence. At that date, the $3,000 loan had already been made, and the note taken for it. In order, therefore, that the donation should have embraced this $3,-000, a donation of the note would have had to be made, and such a donation could have been valid only by an actual delivery of the note, and no one has ever pretended to say that Miss Ackermann ever delivered this note. On the contrary, everybody, including Miss Ackermann herself, has always said that Miss Ackermann held on to this note as an existing obligation. The date of the sale of the Orange street property was December 30, 1890, more than two months after the donation, and, moreover, real estate could not be the subject of manual gift. Hence this real estate could not have formed part of the donation.

Miss Ackermann reserved, therefore, all this property, namely, the Orange street property, the $3,000 note, and over $882 of household and other effects. No one can say that this was not enough for her subsistence.

On the former trial, the court left open the questions of what property had been included in the donation, and what property Miss Ackermann still possessed after having made the donation. These questions are now, after a full examination of the facts, decided as above.

In order to decide in favor of Miss Ackermann, the court would have to disregard the allegations of her petition, which fix the date and amount of her donation; disregard her testimony, which denies that she made a donation; divide the testimony of the Peters on the traverse of the answers in garnishment so as to take literally their statement that Miss Ackermann had given all she had; and disregard their qualifications of that statement; and, finally, disregard the overwhelming weight of the evidence in the present case.

Judgment set aside, and suit dismissed, with costs in both courts, except costs of former appeal. 
      
       116 La. 101.
     