
    (56 South. 324.)
    No. 18,622.
    LEHMAN DRY GOODS CO. v. LEMOINE et ux. In re LEHMAN DRY GOODS CO.
    April 24, 1911.
    On Rehearing, Oct. 16, 1911.
    
      (Syllabus ly Editorial Staff.)
    
    1. Appeal and Error (§ 879*) — Questions Reviewable — Exceptions Urged by Party not Appealing.
    Where defendant does not appeal or file an answer to plaintiff’s appeal, no amendment of the judgment can be made in his favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3581-3583; Dec. Dig. § 879.*]
    2. Pleading (§ 279*) — Supplemental Petitions — Right to File.
    Until defendant appears, plaintiff may file supplemental petitions.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.*]
    
      3. Assignments (§ 57*) — Open Accounts— Delivery — “Title. ’ ’
    Under Civ. Code, arts. 2642, 2656, providing that delivery of an incorporeal right may be affected by the giving of the title, and declaring that without delivery there is no giving in payment, a giving by a debtor and a receipt by the grantor of open accounts is a nullity, without notice to the debtors on the accounts; “title” meaning the material evidence of the incorporeal right, and an open account not being evidenced by such a title as may serve for the purpose of delivery.
    [Ed. Note. — Eor other cases, see Assignments, Dec. Dig. § 57.*
    For other definitions, see Words and Phrases, vol. 8, pp. 6978-6982, 7816.]
    4. Fraudulent Conveyances (§ 118*) — Dation en Paiement — Unpaid Stock — validity.
    Acts 1896, No. 94, prohibiting the sale m block of an unpaid stock of goods, does not apply to a payment by a husband to his wife in satisfaction of paraphernal claims, but such a payment cannot defeat the seller’s privilege to identify the unpaid goods, and nullify the payment to that extent.
    [Ed. Note. — For other cases, see Fraudulent Conveyances. Gent. Dig. §§ 379-381; Dec. Dig. § 118.*]
    5. Witnesses (§ 52*) — Competency — Husband and Wipe.
    In an action by a creditor for a personal judgment against the debtor, and for the setting aside of a payment by him to his wife in satisfaction of her paraphernal claims, the debtor is not a competent witness for or against his wife as to the identity of unpaid goods delivered by him to his wife in payment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 124-136; Dec. Dig. § 52.*]
    6. Fraudulent Conveyances (§ 118*) — Payments by Husband to Wipe — Validity.
    A husband may make a payment to _ his wife in satisfaction of her paraphernal claims, to the prejudice of his other creditors, to the extent of his indebtedness to his wife, but any payment is subject to the scrutiny of the courts at the suit of other creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 379-381; Dec. Dig. § 118.*]
    
      (Syllabus by the Court.)
    
    On Rehearing.
    7. Certiorari (§ 60*) — Recalling Writ op Certiorari.
    A motion to recall a writ of certiorari or review for defects of form must be filed before the cause is submitted in the Supreme Court.
    [Ed. Note. — For other cases, see Certiorari, Dec. Dig. § 60.*]
    8. Appeal and Error (§ 1201*) — Judgment in Supreme Court — Pleading.
    No new plea can be filed after judgment rendered in the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1201.*]
    9. Appeal and Error (§ 1008*) — Review-Findings op Trial Court.
    Where a case hinges on the valuation of property, the findings of the trial judge, with his knowledge of local conditions, are entitled to great weight.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1008.*]
    Action by tbe Lehman Dry Goods Company against Oscar Lemoine and Wife. There was a judgment of the Court of Appeal, affirming a judgment against plaintiff, and it brings certiorari or writ of review.
    Modified and affirmed.
    Coco, Couvillon & Coco, for applicant. Wm. H. Peterman and T. H. Couvillon, for respondents.
   PROVOSTV, J.

Plaintiff seeks to obtain a personal judgment against Oscar Lemoine, and to cause to be set aside a dation en paiement made by him to the codefendant, his wife, in satisfaction of her paraphernal claims. The property in question consists of several, tracts of land, a stock of merchandise in a country store, and the open accounts due the store by its customers..

The dation en paiement is assailed on the grounds:

(1) That no delivery was made of the open accounts; the debtors on them not having been notified of the transfer.

(2) That the dation en paiement was made in violation of Act 94 of 1896, p. 137, prohibiting the sale in block of goods unpaid for by the vendor, and making such sale prima facie fraudulent.

(3) That only a part of the debt in purported satisfaction of which the transfer was made was really due the wife, and that the property transferred was greatly underestimated, its real value being very largely in excess of the debt really due.

At the time of the filing of the original petition in the suit, the plaintiff company was not owner of the entire claim sued on, but only of a small part of it, the greater part being owned by A. Lehman & Co., in liquidation, to whose business plaintiff was the successor. A. Lehman & Co. had never transferred their claim to plaintiff. After the original petition had been filed, and after citation, but before any appearance had been made by either of the defendants, a transfer of. the claim was duly made to plaintiff, and a supplemental petition was filed, alleging the transfer. Defendants excepted to the supplemental petition, on the ground of misjoinder of parties plaintiff, and on the further ground that “the pretended acquisition of the right of action occurred subsequent to the institution of the present suit.” The exception was overruled.

The answer consists of a general denial, and, of course, of the contradiction of the grounds of nullity alleged by plaintiff.

Both the District Court and the Court of Appeal decided against plaintiff; and the case is now before this court on writ of review to the Court of Appeal.

Defendants continue to rely upon the overruled exception; but, they not having either appealed or filed an answer to the appeal, no amendment of the judgment can be made in their favor. Louque, Digest, p. 53, No. 10; Breaux’s Digest, p. 49, Nos. 7 and 17. Moreover, the exception is without merit, since, until the defendant has appeared, there is nothing to prevent the filing of as many supplemental petitions as the plaintiff may wish to file.

Taking up the grounds of nullity, we find that the debtors on the open accounts were never notified of the transfer. The learned judge of the trial court says the notice was given; but we have scanned the record in vain to find any evidence of that fact. Without delivery there is no giving in payment, even as between the parties. C. C. art. 2656. As between the parties, delivery of an incorporeal right may be effected by “the giving of the title.” C. C. art. 2642. By “title” is here meant the material evidence, writing or other, of the incorporeal right, such as could serve as evidence of the right in a court of justice. The books of a merchant are not evidence in his favor, and still less is a copy of the books; therefore an open account cannot be said to be evidenced by such a “title” as could serve for the purpose of delivery. But if it were otherwise, and delivery of an open account could be effected as between the parties by the giving of the books, or of a copy of the books, of the transferror, there would still have been no delivery, even as between the parties, in the present case, since there is no evidence of the books, or of copies from them, having been given to the wife.

We must therefore hold that as to these open accounts, aggregating $1,254.10, the dation en paiement is null.

The second ground of nullity, based on the supposed violation of Act 94 of 1896, prohibiting the sale in block of a stock of goods unpaid for by the vendor, is met by the decision of this court in the case of Compton v. Dietlein & Jacobs, 118 La. 360, 42 South. 964, 12 L. R. A. (N. S.) 174, holding that the said act does not apply to a dation en- paiement by husband to wife in satisfaction of paraphernal claims.

That decision recognizes, however, that such a dation en paiement cannot defeat the vendor’s privilege.

The learned trial judge found that plaintiff failed to identify any of the goods for the purchase price of which the debt sued on was due, and therefore failed to prove the existence of a vendor’s privilege; and the Court of Appeal affirmed his judgment. The evidence impresses us differently. The salesman of plaintiff, who had sold the goods and knew them, stood at the elbow of the notary while the inventory of the stock of goods in question was being made, and, as each separate piece of goods was being examined and appraised by the experts and inventoried by the notary, identified those that were unpaid for, for the purchase price of which the debt sued on was in part due, and the notary made a separate list of the identified goods. So far as concerns the testimony of the husband on this point, it has to be totally disregarded; he not having been a competent witness for or against his wife. As to the identified goods, the dation en paiement must be annulled as against the plaintiffs. They are described in the notary’s return, and valued at $689.27.

On the question of the value of the property given in payment, we find no sufficient reason to differ with the conclusion reached by the two courts that have already had the case under consideration, although we are free to admit that as an original proposition we might perhaps have thought differently.

We agree, also, with the lower court with respect to the amount due the wife by the husband, except in one particular. The debt was in part for Mrs. Lemoine’s share in the price of the sale of a plantation. She owned in severalty 16 acres of the land composing this plantation and a half interest, undivided, in the remainder. The other undivided half was owned by Mr. Lemoine, or by the community of acquets and gains existing between him and Mrs. Lemoine. He sold the plantation for $5,500 and kept the entire amount. He, or the community of acquets and gains, had expended $700 in improvements upon the property and by this the value of the property had been materially increased. Later the discovery was made that there was a shortage of four or five acres in the 16-acre tract; and for that deficiency the purchaser' claimed a reduction of $400, and it was allowed him. In computing the indebtedness of Mr. Lemoine to his wife, for the purpose of the dation en paiement, a credit of $4,500 was allowed her for her interest in the price of this sale. How that result was arrived at is not explained. If the value of the 16 acres which the wife thus owned in severalty is fixed at $50 per acre, and the increased value is fixed at the full amount of the expenses ($700), and these two amounts, which form no part of the price of the plantation proper, are deducted from the $5,500, we have $4,000, as representing the price of that part of the plantation owned in indivisión, considered separately from the 16 acres and the improvements. The wife was entitled to one-half of this, or $2,000, plus the price of the land owned in severalty, say $800, less the $400, returned to the purchaser.

Judging from the fact that a deduction of $400 was allowed the purchaser of the plantation for deficiency of 4 to 5 acres in the 16 acres, we should say that the 16 acres were worth more than $50 per acre; and the evidence shows that the increased value resulting from the $700 of expenses in improvements was less than $700; hence our adoption of these figures is merely for argument, as making no difference in the result, and sparing us the trouble of ascertaining from the evidence what the exact figures should be. The lower court took the view that the amount due by the wife to the husband, or to the community of acquits and gains, for the increased value resulting from the improvements put upon the plantation by the husband was a matter which could not be considered in the present suit, but could come up only on final settlement of the affairs of the community. We think differently. True the improvements had become inseparably incorporated in the property— lost in it, as it were — and the wife had therefore become absolute owner of them for one-half; and true, also, her indebtedness for one-half of the increased value resulting from these improvements was an unliquidated debt, and therefore not compensable with the liquidated debts due her by her husband for her interest in the property sold; and, true again, it was not possible for the spouses to liquidate, or fix definitively the amount of this debt by agreement, husband and wife not being allowed to contract with each other, except as specially authorized by law. All this is true; but it is also true that the husband is allowed to make a dation en paiement to his wife, to the prejudice of his other creditors, only to the extent that he is really indebted to her, and that therefore, if Mr. Lemoine was not really indebted to Mrs. Lemoine for that part of the price of the sale of this property which represented the increased value which had resulted from his own expenses upon it, that part of this purchase price could not legally serve as a consideration for a dation en paiement between them. The legal situation will be illustrated if, simply for a more striking effect, we invert, in the present case, the relative values of the property with and without the improvements, and say that without them it was worth $100, and with them $10,000, so that Mr. Lemoine would have been owing his wife only $50 for her interest in the property. Would it be said that, owing her only $50, he could transfer to her $5,000 of his own property, and his other creditors have no ground for complaint? Our view of the matter is that, while he and his wife could not make a final settlement during the existence of the marriage and of the community, yet, at the same time, he could not make her a dation en paiement, unless he was actually indebted to her; and that therefore whatever dation en paiement he made to her was subject to scrutiny by the courts at the suit of his other creditors, as is now being done in this case, and could be maintained only in so far as there was an actual indebtedness.

The conclusion thus reached, however, makes no difference in the case, since, after all allowances have been made for this increased value, Mr. Lemoine still remains largely indebted to his wife. The debt of the husband, as fixed in the dation en paiement, was $6,684.50. The property given in payment was fixed in the act at $5,259.20. Therefore the dation en paiement left the husband still indebted to the wife in the sum of $1,425.30. That was the balance due the wife after the debt due her had been reduced by the transfer to her of the open accounts. That balance must now, therefore, be increased by the amount of those open accounts, since we have held the dation en paiement to have been null as to those open accounts for want of delivery. The price fixed on the open accounts in the dation en paiement was $1,254.10. Adding this $1,254.10 to the $1,425.30, we have $2,-679.40, as the balance due the wife. And if, adopting the figures most favorable to the plaintiff, as we have done hereinabove, we allowed the wife a credit of only $2,400, instead of $4,500, for her interest in the plantation, the dation en paiement would leave Mr. Lemoine still indebted to his wife in the sum of $579.40.

And that amount would have to be increased by the amount of the goods identified by plaintiff, as to which, also, the dation en paiement is set aside.

Werthermier-Schwartz Shoe Company, another creditor of the defendant Lemoine, intervened in the case, joining plaintiff. In favor of this creditor, also, the dation en paiement must be set aside, in so far as the open accounts are concerned.

It is therefore ordered, adjudged, and decreed that the judgment of the District Court and of the Court of Appeal be set aside, and it is now ordered, adjudged, and decreed that the dation en paiement made by Oscar Lemoine to Mrs. Mamie C. Yoorhies, his wife, on October 7, 1908, be set aside as to the open accounts therein transferred, in so far as the rights of the plaintiff and of the intervener in this suit are concerned, and that said dation en paiement be 'set aside as to those of the goods therein transferred which were indentified by the plaintiff herein, amounting to $689.27, whereof a list is attached to and forms part of the inventory made by E. A. Plauché, notary public, on December 11, 1908, in so far as the rights of the plaintiff in this suit are concerned, and that in all other respects the suit of the plaintiff and the intervention herein be dismissed. That the defendants pay all costs.

■SOMMERVILLE, X, takes no part herein.

On Rehearing.

LAND, X

Our opinion and decree in this case was entered and filed April 24, 1911. On May 8, 1911, the defendants filed a motion to recall and dismiss the certiorari or writ of review, because the application for the same was not accompanied by a copy , of the original pleadings, as required by .Act 191 of 1898. Both parties applied for a rehearing, and a rehearing was granted on the whole case.

The first issue to be determined in logical order is the motion to recall. As a matter of fact, the application for certiorari or writ of review was not accompanied by a copy of the original pleadings in the case, but such pleadings were sent up as a part of the record by the clerk of the Court of Appeal. The case was called, and was submitted on its merits on briefs filed by both parties.

In the Coignet Case, 128 La. 414, 54 South. 925, it was held that the failure of an applicant for certiorari or writ of review to file in the Supreme Court with his petition a copy of the original petition and answer and other pleadings in the case is -fatal to the application, and the omission cannot be cured by the subsequent production of the omitted copies of the pleadings. In that case, however, the motion to recall was filed before the submission of the cause. The question now before us is whether a motion to recall will be considered when raised for the first time after the submission and decision of the cause in the Supreme Court.

We think that this question should be answered in the negative, because no new plea can be filed after judgment rendered in the Supreme Court. Stark v. Burke, 9 La. Ann. 344. In that case, Slidell, C. X, as the organ of the court, said:

“The time of a court of justice should not be occupied with determining a cause on the general merits, only to. reach the fruitless result of setting aside its decree, not because it is erroneous in the case presented, but because the litigant desires to present a new question, which he might have presented before.”

In the analogous case of a motion to dismiss an appeal, it has been held that such a motion will not be considered when filed after a case has been submitted on the merits. Toups v. Meegel, 28 La. Ann. 111. It. is hornbook law that all defects of form in bringing up an appeal are waived, where the appellee appears and contests the case on other grounds. Hennen’s Digest, vol. 1, p. 71. That the incompleteness of the record is a formal defect that must be urged within three days after the filing of the transcript has been decided in a number of cases. Durbridge v. Slaughterhouse Case, 27 La. Ann. 676; Bienvenu v. Factors’ & Traders’ Ins. Co., 33 La. Ann. 209, and cases cited in Hennen’s Digest, vol. 1, pp. 71 and 72.

For the reasons assigned, the motion to recall is overruled.

Our former decree herein amended the judgment below by setting aside the dation en paiement made by Oscar Lemoine to his wife, as to the open accounts sought to be transferred, and as to certain merchandise subject to plaintiff’s vendor’s privilege. We see no good reason to change our conclusions on these points. Under these rulings, the open accounts, aggregating $1,254.10, did not pass to the wife for want of legal delivery, and'the merchandise, valued at'$689.27, covered by plaintiff’s vendor’s privilege, could not be legally sold to their prejudice. The result is that the wife, having received no title to the accounts and the merchandise, should not be charged with the same -in a settlement with her husband. Plaintiff’s counsel in their brief for a rehearing admit that the evidence shows that the wife had valid claims against her husband to the amount of $4,094. According to the dation en paiement all the property transferred to the wife was valued at $5,257. Plaintiff’s counsel contend that therefore the 'wife was overpaid by $1,162. But if we deduct the value of the open accounts and merchandise which did not pass to the wife for the reasons above stated, the balance in her favor would amount to $780.37. The next contention of counsel for plaintiff is that the evidence shows that all the property transferred to the wife was grossly undervalued. Such a conclusion may, doubtless, be reached by considering the values as estimated by the witnesses for the plaintiff. But the evidence as to values is conflicting, and was carefully considered and weighed by the district judge, as shown by his written opinion.

The findings of the court of the first instance were affirmed by the Court of Appeal. As stated in our original opinion, we are not prepared to say, on the cold record before us, that the findings below are against the weight of the evidence. Value is a mere matter of opinion; and the trial judge, with his knowledge of local conditions, was in a far better position than we are to weigh the conflicting opinions of the witnesses. Plaintiff’s counsel complains that this court did not notice his opposition to the item of $650, the price of a 16-aere tract which the wife sold during the marriage to one Juneau. The husband received the price, and in the act of dation en paiement acknowledged that he was a debtor for the amount to his wife. There is nothing to show when or how the wife acquired title to the property. As'it is not shown that the wife acquired the property “during the marriage,” there is no presumption of community. C. C. art. 2402. As the marriage has never been dissolved, C. C. art. 2405, has no application. The most that can be said is that the evidence as to the wife’s title is insufficient. We would remand the case on this point for further evidence, if we deemed it essential to the decision of the cause, in view of the fact that the husband treated the property as belonging to his wife, and swore that he never owned it.

In our original opinion we discussed the question whether the wife should be charged with $700 for the enhanced value of her separate property by reasons of improvements made thereon by the community. It appears that the wife and husband jointly owned a plantation, and the wife owned a contiguous tract of 16 acres in her own right. The whole property was sold for the lump price of $5,500, out of which $400 was returned to the purchaser on account of deficiency in area. It appears that .the husband had expended $700 in the improvement of the common property. It is clear that the wife, as joint owner, was chargeable with one-half of that sum. What the common property brought is more or less a matter of conjecture. Plaintiff, however, in his brief admits that the wife’s net share of the total price amounted to $2,400.

As already stated, plaintiff’s case as to the annulment of the dation hinges on the true valuation of the property transferred to his wife. For the reasons already stated, we decline to disturb the judgment on that issue. The additional ground that the dation was null, because it happened that a small part of the merchandise transferred to the wife was subject to a vendor’s privilege, has been fully covered in our original opinion.

Our former decree is recast, so as to read as follows, to wit:

It is therefore ordered that the judgments of the district court and of the Court of Appeal herein be amended so as to decree that the dation en paiement made by Oscar Lemoine to Mrs. Mamie C. Yoorhies, his wife, on October 7, 1908, be set aside, as to the open accounts therein transferred, in so far as the rights of the plaintiff and intervener are concerned, and also be set aside as to the merchandise identified by the plaintiff herein, amounting to $689.27, whereof a list is attached to and forms a part of the inventory made by E. A. Plauché, notary public, on December 11, 1908, in so far as the rights of the plaintiff in this suit are concerned; and it is further ordered that said judgments be affirmed in all other respects, and that the defendants pay costs in all courts.  