
    (36 South. 965.)
    No. 14,643.
    DANNENMANN & CHARLTON v. CHARLTON.
    (Jan. 5, 1903.)
    SUPREME COURT — JURISDICTION — SUSPENSIVE APPEAL — JUDICIAL MORTGAGE — CANCELLATION-INSCRIPTION OP JUDGMENT — TRANSPER OP CLAIM — RIGHTS OP PARTIES — USURY—PRESCRIPTIONS.
    1. An appellant against whom a moneyed judgment had been rendered, and who had taken a suspensive appeal from the judgment, charged in the Supreme Court the appellee with having partially executed the judgment in violation of the suspensive,appeal, and applied to the court for a rule upon him to show cause why the act complained of should not be set aside, so as to hold matters intact until the appeal should be acted upon. Appellee excepted to the jurisdiction of the court to issue the rule. Held, the court has jurisdiction in the premises. Article 130, Code Prae.; article 85, Const. 1898.
    On the Merits.
    2. “The jurisdiction of the court has been enlarged to enable it to determine questions of fact affecting its own jurisdiction in any case pending before it, or it may remand the case.” Article 85 of the Cqnstitution.
    3. If the facts are before the court in such form as that the court may at once consider them and determine as to its jurisdiction, it will do so, or otherwise it may remand the case to the court a qua to hear testimony.
    4. The evidence relating to the question of jurisdiction is all before the court, and, after weighing and considering this evidence, the court holds that it has jurisdiction to direct the recorder of mortgages to cancel and erase a judicial mortgage instituted after a suspensive appeal has been taken. After the suspensive appeal has been perfected, the status quo remains until decision on appeal.
    5. A judgment may be inscribed at any time prior to appeal, but not after the suspensive appeal has been taken.
    As to whether it should be canceled when inscribed prior to the appeal is a question left open, as it is not involved in this case.
    On Rehearing.
    6. Plaintiffs are transferees of a claim, and stand in place of their transferror.
    7. There was a settlement of account between the transferror and the defendant which binds the plaintiffs.
    8. The settlement was followed by payments of the amounts, which by agreement was imputed to the payment of debts mentioned in the settlement.
    This settlement and payment were entered ' into and made some time prior to the present suit, in which plaintiffs attack the settlement on the ground of usury.
    9. The prescription of 12 months pleaded bars recovery of amounts which have been credited on defendant’s indebtedness.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.
    Action by Dannenmann & Charlton against Charles H. Charlton. Judgment for defendant,. and plaintiffs appeal.
    Affirmed^
    Solomon Wolff, for appellants. J. Zach Spearing and Dinkelspiel & Hart, for appellee.
   Statement of the Case.

NICHOLLS, C. J.

The plaintiffs brought suit against the defendant, claiming that certain movables which Charles H. Charlton, Jr., had placed in the possession of the defendant to secure, by way of pledge, an indebtedness which he owed him, had been sold and transferred to them, with subrogation of all the pledgor’s rights against the pledgee; that, though the indebtedness had been fully paid, the defendant denied such to be the fact; that defendant should render an account, showing the situation; that in due course they have judgment in their fawor, decreeing them to be owners of the property, and ordering the defendant to make delivery of the same to them.

On their prayer, an injunction issued, enjoining the defendant from disposing of the pledged property.

Their demand was based upon an instrument which they produced in court, and of which the following is an extract:

“I this day sell and deliver to Dannenmann & Charlton the following property and subrogate them to all my rights against Charles IT. Charlton and the Columbus Debenture Company [here follows a list of movables], being the same articles,” etc., “now held in pledge by Charles H. 'Charlton to secure various loans made by him to me, and on which a small balance may be due.
“The consideration of this sale is Fifteen Hundred Dollars cash paid me and the assumption by them of any balance still due Charles H. Charlton.
“In addition to the foregoing Dannenmann & Charlton agree to hold me harmless if any legal proceedings are necessary by them to recover the property.”

The defendant, after filing a number of exceptions, answered, under reservation of the same, pleading a general denial. He prayed that plaintiffs’ demand be rejected, and that the injunction which had issued be set aside, with $350 damages.

He filed subsequently an amended and supplemental answer, in which- he averred that Charles H. Charlton, Jr., was indebted to him in manner and form and to the amount which he set out; that the plaintiffs, under their assumption in the instrument upon which they had declared, were also indebted to him for the amount stated. As plaintiff in reconvention, he prayed for judgment against them accordingly.

The district court rendered judgment against the plaintiffs, rejecting their demands, and setting aside the injunction they had obtained, and dismissing their suit. It rendered judgment in favor of the defendant upon his reconventional demand against the plaintiffs for a certain amount, with interest from various dates, subject to certain credits. It set aside, however, a certain transfer to himself which the defendant had made of some of the properties pledged, and decreed the plaintiffs to be the owners of the same, subject to defendant’s right of pledge, as securing the indebtedness to him of Charles H. Charlton, Jr.

The plaintiffs appealed.

In this court appellants have suggested to us: That, upon the same day that the judgment appealed from was rendered against them (the 30th of June, 1902), they applied for and obtained, on motion, an order for a suspensive appeal to this court from that judgment to the Supreme Court. That they had perfected the same by proper legal bond, and had lodged the transcript of appeal in the appellate court.

That, notwithstanding said appeal, which suspended the effect and execution of the judgment, the appellee did on the 31st of October obtain a certified copy of the said judgment, and on the same day had the recorder of mortgages for the parish of Orleans to register the same in the books of record for the parish, the legal result of said register being to burden all of their property with a mortgage, and to that extent to execute the judgment.

That the bond given by them was ample, being the Fidelity & Deposit Company of Maryland. That the authority of the said company and its perfect solvency had not been questioned by the judgment creditor. That a judgment suspensively appealed from, and yet pending undetermined in' the Supreme Court, is not a final judgment, within the contemplation of law, for the purpose of registry on execution.

That the judgment creditor was without legal right to obtain the certified copy for the purpose of registering it or to register it, and that the recorder of mortgages was without legal right to so register it while the same was suspe’"'vely appealed from.

Basing themselves upon these allegations, they applied to this court for a rule upon the appellee and the recorder of mortgages to show cause why they should nor be ordered to erase and cancel the inscription of said judgment, and with the reservation of the right of applicant to recover such damages as they may have sustained in the premises by reason of said act.

This application having been notified to the appellee and to the recorder of mortgages, they have each appeared in this court and excepted to its jurisdiction to issue the rule asked for, on the ground that the rule is in the nature of an original proceeding, and, in order to obtain relief, it will be necessary for applicants to offer and introduce evidence which, they would have the right to rebut by evidence either oral or documentary; that they are entitled to a trial in a court of original jm’isdiction, with the right to appeal from the judgment if such judgment be adverse to them; that, even if this exception be not tenable, their application discloses no legal l’ight or cause of action.

In the event of the exception being overruled, they urged their right hereafter to make answer to the rule.

The recorder specially urges that he is a ministerial officer, and w required by law to record whatever was brought to his office, and could not and should not, under any circumstances, be held to pay the costs of this proceeding.

Opinion.

The only question before the court for the present is that raised by the exceptions urged against the granting of this application for the reason that this court is without jurisdiction in the premises. Appellant refers the court to article 85 of the Constitution of 1898, declaring that the Supreme Court “shall have such original jurisdiction as may be necessary to enable it to determine questions of fact, affecting its own jurisdiction, in añy way pending before it, or it may remand the cause.”

The recorder of mortgages refers the court to article 3381 of the Civil Code, to the effect that the party seeking a decree ordering the erasure of a judicial mortgage must make application “to the judge who rendered the judgment.”

Article 130 of the Code of Practice declares that:

“All judges possess the powers necessary for the exercise of the respective jurisdictions though the same be not expressly given by law.”

This court has been repeatedly called upon to take action in different forms and methods in aid of its appellate jurisdiction — sometimes by way of prevention, by supersedeas or prohibition, sometimes by way of enforcement. Decisions bearing upon that subject will be found in the different digests under the heading of “Appeal,” subdivision “Of the Effect of Appeal,” and “Appeal,” subdivision “As Affected by the Confession or Execution of the Judgment and Renunciation of the Right”

In doing this, we have either acted at once upon evidence submitted to us, or have referred the question back to the district court to try the issue raised, or to take testimony and transmit the testimony back to us for action. White v. Ramsey, 14 La. Ann. 329; Board of Church Wardens v. Perche, 39 La. Ann. 223, 1 South. 543; Id., 40 La. Ann. 202, 3 South. 542; Ware v. Morris, 41 La. Ann. 647; New Orleans City Railroad v. Crescent City Railroad, 33 La. Ann. 1273; City of New Orleans v. Bank, 44 La. Ann. 698, 11 South. 146; State National Bank v. Lanaux, 46 La. Ann. 467, 15 South. 59; Brown v. Haynes, 46 La. Ann. 1230, 15 South. 638; Drew v. Creditors, 49 La. Ann. 1641, 22 South. 956.

The clause in article 85 of the present Constitution to which appellant refers simply places beyond question, by constitutional recognition, our authority in respect to such matters, and sets at rest any doubts which may have existed on the subject. Had the rule'taken in this case been one upon appellee to show cause why he should not be punished for contempt of court for having violated the order for a suspensive appeal, coupled with a rule to have the mortgage erased as an incident to the rule for contempt, this court would have jurisdiction over the whole .subject. The matter of jurisdiction is not altered by the fact that no rule for contempt was asked for.

The exceptions taken to the jurisdiction of this court are overruled, and its jurisdiction is maintained. Let the rule issue as prayed for.

Rehearing denied February 2, 1903.

On Motion Directing the Recorder of Mortgages to Show Cause Why He Should not be Ordered to Erase and Cancel the Inscription of a Judgment.

(Feb. 16, 1903.)

BREAUX, J.

This court has not decided, as suggested by the appellee, that it has jurisdiction to try the merits of any question which might arise in the course of the controversy oh appeal; nor has it decided that it would hear original evidence on the question oí its jurisdiction in every case on appeal.

The article of the Constitution (No. 85) has enlarged its jurisdiction, to the extent that it may be necessary to determine questions .of fact as relates to jurisdiction.

It remains, however, that, in any case pending before it in which there is a question of jurisdiction, it may pass upon questions of fact, as relates to jurisdiction, or it may-remand the case. It always had jurisdiction to remand a ease, to the end of determining questions of fact affecting its jurisdiction.

Under the article of the Constitution just cited, if the facts are before the court in such a shape as they may be at once considered, as relates to jurisdiction the court may without delay pass upon questions affecting its own jurisdiction, or it may remand the case, if it is considered that it is one which should be remanded, instead of taking up time to hear original evidence which presents issue that should first he brought up before the court of original jurisdiction.

Counsel for defendant in rule admits, as we read his brief, that it happens in this case that the question of jurisdiction can be tried without the necessity of taking testimony to prove a fact, but, as we said before, insists that this court is not vested with jurisdiction to try on its merits a matter of fact, not originally of record, in which the jurisdiction of the court is questioned.

We can only say in answer that the court is not deciding, and does not intend to decide, the question on the merits. It holds that the judgment suspensively appealed from cannot be executed pending the appeal; that after the appeal has been perfected the judgment is suspended, and, in consequence, the judgment creditor is without authority to record his mortgage.

While judicial mortgages may be inscribed, as heretofore, in the office of the recorder of mortgages, prior to the suspensive appeal, the effect of such inscription prior to such an appeal is left open for future consideration, should the question come before us.

An inscription of a judgment after a suspensive appeal his been taken and perfected trenches upon the suspensive appeal and the jurisdiction of this court, -which requires that everything in the case should remain in abeyance from the time the suspensive appeal has been taken.

The appeal in the case in hand was perfected in July, 1902. The inscription of the judgment was made on the 31st of October, 1902. The case was pending upon the suspensive appeal before this court when the inscription was made.

The inscription of judgment cannot stand. It must be canceled. It was inscribed in face of the fact that the appellee was secured, as to his claim, by a suspensive appeal bond.

The rule nisi which issued on the motion to cancel is therefore made peremptory.

It is ordered, adjudged, and decreed that Charles IT. Charlton, the defendant and appellee herein, and the recorder of mortgages, are ordered to erase and cancel the inscription of the judgment recorded in this case, as before mentioned.

The defendant Charles H. Charlton to pay costs.

Rehearing denied March 16,1903.

On the Merits.

(Feb. 1, 1904.)

This is a suit by the plaintiff firm to recover property pledged by their transferror to defendant.

Defendant is the uncle of Charles H. Charlton, Jr. The nephew borrowed money from him at various times, in representation of which loan he executed his promissory notes, collaterally secured by pledge of a number of articles of jewelry, 1 share of stock in the Young Men’s Gymnastic Club, and 70 debenture bonds, with certain coupons attached, issued to Charles H. Charlton, Jr., by the Cincinnati Debenture Company, afterwards the Columbus Debenture Company of Columbus, Ohio. While these articles were still in pledge, the pledgor sold and transferred them to the plaintiff firm, in which his brother was a partner; subrogating it to all his rights against the pledgee and the Columbus Debenture Company.

The consideration of this sale was the sum of $1,500 cash paid by the firm to the vendor, the assumption by it of any balance still due by him to his uncle; the firm additionally agreeing to hold him harmless if any legal proceedings were necessary to recover the property, and to pay his attorneys $500 out of the first moneys which they would realize out of it.

In the act of sale the vendor declared that there might still be a small balance due by him on his loans.

The prayer of the plaintiffs in the present suit brought by them against the pledgee, Charles H. Charlton, is that, after due proceedings, there be judgment against him, ordering him to account to them for the various dealings he had with Charles H. Charlton, Jr., and ordering him to deliver to them all the property pledged, upon payment to him of any balance which might be due him upon the accounting, and that, upon failure to so deliver the property, there be judgment in their favor for $3,043.50, with legal interest from judicial demand, and that he be enjoined from disposing of the property pending the suit.

The amount for which judgment was contingently asked was the amount fixed by the plaintiffs as the value of the property.

In their petition plaintiffs averred that they had called upon defendant to render an account in the premises, and had offered to pay him any balance which might be legally due him on the said account; but he refused and neglected to do so, or to state what his claims were. They averred that Charles H. Charlton, Jr., had paid the defendant all the moneys which he had borrowed from him. except about $150; that, in ignorance of the exact sum which might be due him, they had tendered him $150 in payment, and called upon him to deliver. the property, but he had refused to accept the tender and deliver the property which had been so pledged, or to give them any satisfaction in the premises. The preliminary injunction prayed for was granted' and issued.

Defendant objected to the petition filed on the ground that it disclosed no legal or valid right or cause of action against him; that the same was too vague, general, and indefinite; that plaintiffs had mistaken their remedy, if any they had, which was denied. He prayed that plaintiffs’ suit be dismissed.

The court maintained the exceptions which had been filed, in so far as to order the plaintiffs to amend their petition by setting forth their demand more fully in accordance with views orallj' expressed.

Plaintiffs filed an amended and supplemental petition, annexing and making part of the same a statement which they averred, to the best of their knowledge and belief, and from the data in their possession, showed the account between their assignor and the defendant; that, as shown by the said statement, there was due to the defendant, to the best of their knowledge and belief, the sum of $30, which sum was° included in the tender made to the defendant as set out in the original petition. They reiterated the prayer of that petition, and prayed that there be judgment against • them for $34.50, but without costs, in view of their tender, upon defendants delivering to them the property described in the original petition, and, on failure to deliver the said property, that they have judgment for the value thereof, as set out in the original petition, less the sum of $30, as shown by the annexed statement. Defendant first filed a general denial. He subsequently filed an amended and supplemental answer, containing a statement of the account between himself and Charles H. Charlton, Jr., as he understood it, and, in reconvention, prayed for judgment against the plaintiffs upon their assumption of the debt due by assignor to respondent.

Defendant having sought the benefit of a settlement made between him and Charles I-I. Charlton, Jr., transferror to plaintiff; and, plaintiff having objected that it covered usurious items, the defendant pleaded the prescription of 12 months between the date of settlement and the date suit was filed, as a bar to any inquiry into the subject of usury.

The district court rendered judgment in favor of the defendant against the firm of Dannenmann & Charlton, and the individual members of the firm in solido, dismissing their suit, and dissolving the preliminary injunction which had issued. It rendered further judgment in favor of the defendant as plaintiff in reconvention against'the firm of Dannenmann & Charlton, and the individual members thereof in solido, for the sum of $979.50, with interest at 8 per cent, per annum on various amounts, and from various dates specified, subject to certain declared credits, with interest thereon and for attorney’s fees.

There was a settlement of accounts arrived at between Charlton, Jr., transferror to plaintiff, and the defendant.

The dates of items of settlement and the character of'these items show that these parties conferred about that time in regard to their business. This view is sustained by oral testimony, and, in addition, a note of $1,000 was executed by Charlton, -Jr., to be placed, he says, to the credit of general account. There remains an unpaid balance on this note of $235.70.

The amount paid by Charlton, Jr., on this note was credited to defendant’s account in satisfaction of the items to which plaintiffs, as transferees of Charlton, Jr., now object; that is, on December 9th and December 11th of 1889, according to the defendant and to his bookkeeper, who was present, plaintiffs transferror paid a number of defendant’s claims, as shown by a statement which was in plaintiff’s possession at the time suit was brought. Plaintiff now contends, after more than 12 months had elapsed prior to suit (from date of settlement), that some of these debts were for usurious interest.

The statement in question, in the hands of plaintiff, has every appearance of being a complete statement. It shows the disposition which was made of the proceeds of the note. Just below there is a memorandum of indebtedness still open June 15th.

The last memorandum is seized upon by plaintiff as showing that' the account was left open.

The last memorandum of items does not include the first memorandum, above mentioned. The statement may have been compílete as to the former, and left open as to the latter.

Another statement is made out by defendant and offered by him in evidence, which statement, we are informed by the testimony of defendant and his clerk, is also correctly made.

It happens that near the end of this statement, barred off, there is a memorandum which sets forth an indebtedness still open June 15, 1900, some time after the alleged settlement of December, 1889, and within 12 months prior to suit,. and which, if taken as correct as to all items of the account, would take defendant’s settlement out of the grasp of the 12-months prescription which he pleads. As this is a question of fact, we insert testimony in point at this time:

“Q. Now, before you leave the stand, I want to call your attention to this particular thing: That on this statement which purports to have been handed Mr. Charlton between December 9 and December 11, 1899, there is a memorandum of indebtedness still open on June 15, 1900?
“A. That is readily explained, sir.
“Q. Explain it then, please.
“A. At the time that settlement was made, he requested me to figure up what his indebtedness would be about June, 1900, as be bad some large contracts he was figuring on, that would enable him to meet it at the time, and he thought he could give a note for the entire amount.”

The fact is not denied, by Mr. Conrad, a witness for defendant. On the contrary, his 'testimony is corroborative. He says that there was a complete settlement, and that the memorandum in question had nothing to do with the settlement.

Plaintiff urges that there was no settlement at all, and, if there was a settlement, it was only made after June 15, 1900, and therefore the right to reject the usurious interest still remains.

The judge of the district court, who saw and heard the witnesses for defendant, accepted-their statements as correct in regard to the settlement. After having carefully read the testimony, we have not found that he has erred, viz., there was a settlement made December 4, and another December 11, 1899.

This brings us to a consideration of the last proposition — that no payment had been made, and, in consequence, plaintiff was still in time to defeat defendant’s demand based upon the settlement as made.

Prom defendant’s standpoint, sustained by a preponderance of testimony, there was a payment made as before mentioned. The proceeds of the $1,000 note, which note is nearly all paid, went toward paying the very claims which plaintiffs say have not been paid.

Granting that they — the items to which plaintiffs object — were not entirely paid, but that they were only paid in part, the following is authority for the proposition that partial payment will suffice:

“Whether usurious interest was included in it [the note] or not is immaterial, under the laws of this state. Subsequently, after several partial payments had been made, a settlement was had, and the defendants again, in writing, acknowledged themselves to be indebted to the plaintiff in the sum claimed,” as in the instant case. Carruth v. Carter & Bro., 26 La. Ann. 331. See, also, Mortgage Co. v. Ogden, 49 La. Ann. 8, 21 South. 116; Bank v. Regan, 40 La. Ann. 17-19, 3 South. 407.

The decision in Allen v. Nettles, 39 La. Ann. 790, 2 South. 602, has direct bearing upon the subject of usurious interest. The court said:.

“The defendant cannot go beyond the accounts which have been rendered to and accepted by him without objection.”

To the same effect is Leeds & Co. in Liquidation, 49 La. Ann. 501, 21 South. 617.

Plaintiffs point to item on statement on page 189, as follows:

“Bonus on City Hall Contract due August 9th, 1899 — $500.”

After some comment in general terms, the brief contains the following:

“Without further comment, I will leave the defendant to explain how he can charge his partner with a bonus of $500.”

This itself would have a shocking appearance, but we return to the record, and find that the defendant sought to explain, regarding this item, and the following shows the result. He was not permitted to testify.

“Q. Well, on your statement, then you charged the defendant, in the settlement of $1,000, with $510.17, as a bonus and deficit on the contract at the city hall?
“A. You want me to explain that to you, or answer it without explanation?
“Q. Answer it without an explanation, and then you can explain.
“A. Yes, sir; $19.17 for the deficit, and $500 for the bonus. Now you wish the explanation?
“Q. No. Whose contracts are these with the city ?”

It is scarcely possible, in view of plaintiff’s attitude in this matter to now hold that this claim demands explanation from defendant.

Erom the foregoing, it will be seen that he might have explained if the question had been pressed.

We cannot go into the question of illegality or usurious interest which has been settled and paid more than one year before a different disposition of the amount paid was claimed. The testimony shows that the accounts and settlement were made more than one year prior to suit.

We come next to a consideration of the debentures which Charlton, Jr., pledged to the defendant as security for his indebtedness to him.

In the next place, plaintiff asks for judgment for the amount of tlie debenture bonds in question. They object to the return of bonds they say have become worthless while in the possession of the pledgee, and that they were valuable when he accepted them as col-laterals.

We are not inclined to that view. These bonds had only a precarious value from the first. If they have become worthless, the record does not show that it was owing to defendant’s act. They will have to be returned by defendant to plaintiff. •

With reference to the injunction, plaintiff did not tender to defendant the amount to which he was entitled; besides the facts of the case do not show that strictly an injunction was necessary to protect plaintiff’s right. The action of the district court regarding this injunction has our approval.

For reasons assigned, the judgment appealed from is affirmed.

Rehearing denied June 30, 1904. 
      
       6 South. 327.
     