
    No. 12,522.
    W. P. Theus, Agent, vs. W. M. and G. W. Kemp.
    Defendant cast in an action can not be forced to remain in court until it shall suit the representatives of plaintiff, who has died since the signing of thejudgment to make themselves parties to that action. An appeal by a defendant partakes-sufficiently of the nature of a claim against a plaintiff, who has succeeded in obtaining a judgment against him, to fall under the terms of Arts. 116 and 964 of the Code of Practice, and Art 313, 0. 0., and such defendant is authorized, on. suggesting under oath the death of the plaintiff, to ask to have a curator ad hoc appointed by the court to represent the miuors in said proceeding.
    
      On Rehearing, Breaux, J. — The motion to dismiss the appeal having been timely filed, the court rejected the statement of facts made after an appeal had been granted, the appeal bond had been given and the appeal completed.
    A statement of facts can not be made after filing of bond, without the consent of the parties concerned. C. P. 603 and 1130.
    A PPEAL from the First Justice Court for the Parish of Bienville. Barksdale, J.
    
    
      J. G. Theus, Edwards & Wimberly for Plaintiff, Appellee.
    
      B. A. Beynolds for Defendants, Appellants.
    Argued and submitted June 1, 1897.
    Opinion handed down June 21, 1897.
    Rehearing refused, reasons assigned November 15, 1897.
    Statement op Facts.
    Plaintiff,' as agent of Mrs. M. O. Theus, instituted a suit in the First Justice’s Court of Bienville parish, alleging that W. M. Kemp and G. W. Kemp were indebted to Mrs. Theus in solido-in the sum of ninety-nine dollars and ninety-nine cents, with eight per cent, interest from October 1, 1896, being balance due on note of W. M. Kemp, as would appear by said note annexed to the petition. That said note was given for lease and use of the place' known as the Beckham place then resided on by defendant. That plaintiff had a lessor’s privilege on all the crops raised on said place during the year 1896, and a privilege on the stock and other movables on said place for the payment of the lease. That the said W. M. & G. W. Kemp had disposed of a greater part of the crop raised on said place, and were still removing said crop without paying the lease price and with intent to defraud plaintiff. That plaintiff feared and had reason to believe that defendants would remove the entire balance of the crop and stock and other movables without paying plaintiff the balance on said crop, and plaintiff would thereby lose lessee’s privilege on the same. That it was necessary that a writ of provisional seizure issue for the protection of plaintiff’s rights and privileges. He prayed for service on W. M. & G. W. Kemp for a writ of provisional seizure of the corn, cotton, mules, horses and other movables on the place, and raised and used in the cultivation of the same, and for judgment in solido against W. M. & G. W. Kemp for the sum of ninety-nine dollars and ninety-nine cents, with eight per cent, interest thereon from October 1, 1896, and sustaining said writ and recognizing a privilege as lessor on the property seized, and ordering the property to be sold to pay the judgment.
    Annexed to the petition was the instrument declared on, reading as follows:
    “ $150. Abcadia, La., October 22, 1896.
    “We, or either of us, promise to pay W. P. Theus, agent, the sum of one hundred and fifty dollars for rent on the Beckham place for the year 1896 (October 1, 1896). The undersigned parties agree to do all necessary repairs without charge. ,Tt is further agreed that in case they pay as much as two hundred and fifty dollars ($250), it shall be placed as credit on the land, which is three hundred and twenty acres; the price is ($1500) fifteen hundred dollars, with eight per cent, interest from date.
    (Signed) “ W. M. Kemp,
    “G. W. Kemp.”
    Upon the instrument are the following endorsements:
    “Rec’d on within note 1 B. O., weight 510 lbs., net proceeds thirty-three and 15-100 dollars, this Oct. 28th, 1896.
    “ Rec’d on within note fifteen and 04-100 dollars from Theus & Fleming, balee, on acct. of 1896, this Nov. 10th, 1896.”
    One and 82-100 dollars is hereby entered as a credit on the within note this the 13th day of November, 1896, for the purpose of placing same in the jurisdiction of Justice’s Court.
    A provisional seizure was ordered to issue on plaintiff’s furnishing bond in the sum of one hundred and fifty dollars. The bond was furnished, a writ issued, and under it the constable seized one mare, one wagon and one hundred and thirty bushels of corn, or less.
    W. M. Kemp appeared before the justice of the peace and declaring under oath that the property was his property and exempt from seizure under Art. 219 et seq. of the Constitution, and that he had duly recorded his homestead under Act No. 140 of 1880, prayed that the property seized be released. Defendant through counsel excepted that W. P. Theus had no authority to stand in judgment for or represent Mrs. M. O. Theus.
    They moved to dissolve the writ of provisional seizure for the reasons:
    1. The affidavit on which it was granted was untrue.
    2. There was no writ served upon either of the defendants.
    3. Plaintiff gave bond which was not required by law.
    They prayed that plaintiff’s suit be dismissed with right reserved to them to sue for damages.
    The motion to dismiss was referred to the merits. W. M. Kemp answered, pleading first, the general issue; he admitted the contract of lease, but averred that the crop raised in the year 1896 was less than one-half of an average crop., which was caused on account of a continuous drought, which was of such an extraordinary nature that it could not have been foreseen at the time the contract was made and defendant was entitled to an abatement on said contract. That on account of said fortuitous event the plaintiff, W. P. Theus, agreed to reduce said amount of one hundred and fifty dollars to one hundred dollars, and that in accordance with said agreement defendant delivered to plaintiff two bales of cotton, to be held and sold by instruction of defendant, and said cotton was well worth the sum of seventy-five dollars. He averred that he did instruct plaintiff to sell the same and it was delivered to him with instructions and understanding that when sold the proceeds were to be placed upon the lease indebtedness and said sale was made to defraud defendant — was made without authority and was illegal and null. That defendant did not consent to it and knew nothing of the illegal credits of part of said proceeds of the cotton to an account with Theus & Fleming, and said credit was improperly made. That said two bales of cotton should be decreed not sold and the property of the defendant; but, in the alternative, if decreed sold, defendant should receive seven and' one-eighth cents per pound for the first bale, which was the amount given by Theus & Fleming for the cotton sold to them. Defendant further alleged that the wagon, mare and crib of corn (one hundred and twenty bushels) are his property and exempt from seizure and sale by virtue of the recordation on September 30, 1890, of a homestead under Act No. 114 of 1880, and Arts. 219 and 220 of the Constitution; that defendant had at the time of said recordation and still has a wife and eight children, and said property should be released from seizure and declared subject to the homestead. Defendant averred that by said illegal writ and seizure he had been damaged to the sum of twenty-five dollars for attorney’s fees, twenty-five dollars for loss of use of property, seventy-five dollars for loss of time, and twenty-five dollars punitive damages for illegal seizure of homestead, which amounts he pleaded in reconvention with eight per cent, interest from judicial demand. He prayed that the contract be abated and reduced to one hundred dollars on account of the fortuitous event and subsequent agreement, and the proceeds of the two bales of cotton, when sold, be credited on said amount, or if sold, the proceeds as alleged be credited on said contract, and that said illegal credits be declared null and void and made without authority, and he prayed for judgment in reconvention in the full sum of one hundred dollars damages as above alleged, with interest as claimed and costs; that said property be released from seizure and declared exempt from seizure under the homestead and exemption laws.
    On motion of plaintiff, defendant was ordered to elect which of his defences he intended to proceed under. Defendant, under exception, elected to depend “ on the ground of the fortuitous event and Theus’ consent and agreement to the reduction of the rent.” Judgment was rendered in the case on the 10th of December, 1896, in favor of the plaintiff against the defendants in solido for the sum of ninety-nine dollars and ninety-nine cents with five per cent, interest from 1st October, 1896, until paid, sustaining the writ of provisional seizure sued out and the seizure thereunder, except as to the mare and wagon, which were declared exempt under the homestead ■exemption; that the balance of the property be sold to satisfy the judgment, and defendants pay costs.
    Defendants’ motion for a new trial was overruled on the 15th of December, 1896. Defendant W. M. Kemp petitioned for and obtained an order of appeal to the Supreme Court returnable on the second Monday of May, 1897. An appeal bond was furnished on the same day for two hundred dollars.
    On the 24th of April, 1897, W. M. Kemp, through counsel, suggesting that since the order of appeal was granted and bond was filed Mrs. Maggie O. Theus, plaintiff in the ease, had died leaving seven minor children as forced heirs, and that defendant had reconvened in said suit and that it was necessary that said heirs be made parties to the appeal, prayed that the court appoint W. P. Theus, father of said minors, curator to represent them, and that notice of the appeal and his appointment be given accordingly. Upon this •application the court appointed W. P. Theus curator to answer and •defend the appeal. We find in the record a citation of appeal with •a return therein reading as follows:
    First Justice Court of Bienville, State of Louisiana.
    W. P. Theus, Agent, vs. W. M. & G. W. Kemp. 1 No. 938.
    To W. P. Theus, Agent and Curator for the minor children of Mrs. M. V. Theus:
    
    Whebeas, W. M. Kemp has appealed from a final'judgment rendered in the above suit, which appeal is returnable to the Honorable -the Supreme Court of the State on the second Monday of May, 1897, You are hereby cited to appear within said time, then and there to answer to said appeal.
    Witness my official signature, justice of said court, parish of Bien-ville, this 24th'day of April, 1897.
    Samuel Barksdale, J. P.
    
      Constable's Return.
    
    Received the within notice of appeal and copy of motion to make ■parties on the 24th day of April, 1897, and on the same day and date made service by handing a certified copy of notice of appeal to W. P. Theus, in person, in the town of Arcadia, La.
    J. 0. Brice, Constable.
    
    Two motions were filed in the Supreme Court.
    The first was as follows:
    The appellee appears by counsel and moved and prays the court “to dismiss this appeal for the following reasons;
    1. There is no order appointing a tutor or curator ad hoc and no .proper showing made for such appointment.
    2. There is no law authorizing the appointment of a curator or tutor ad hoc for a plaintiff, and a plaintiff can neither sue nor stand in judgment through a curator ad hoc.
    
    3. This controversy being over a question of fact and law as to whether the partnership had been dissolved and the transfer or giving in payment from G-. W. Kemp to W. M. Kemp, of his interest in the corn which had been raised by and belonged to the partnership composed of W. M. Kemp and G. W. Kemp, without first dissolving the partnership and paying its debts being' contested and the illegal transfer being contested as illegal, fraudulent and simulated, and the amount in dispute being less than two thousand dollars, the Supreme Court is without jurisdiction ratione materise.
    
    4. The evidence not having been reduced to writing in the court below, there is nothing before the Supreme Court on which-a judgment could be rendered.
    In the event the above motion is refused, then, and in that event only, appellee prays that the judgment appealed from be amended by recognizing plaintiff’s lessor’s lien and privilege on all the property seized, and rejecting the demands of W. M. Kemp for homestead and exemption as a whole.
    The second motion reads:
    Into court comes defendant and appellant, and shows to the court that since the rendition of the judgment of the lower court plaintiff and appellee has voluntarily executed it by seizing and selling the mule under seizure, and instructed the constable to release the mare and wagon exempted from seizure by the judgment, and can not ask its amendment, and defendant pleads an estoppel against the amendment.
    The transcript in the case was certified by the justice under date of the 8th of May, 1897. No statement of fact is included among the documents certified to, but on the same day (the 8th of May, 1897) the justice of the peace made out and signed a statement of facts a, copy of which is brought up in the record, but following the certificate attached to the transcript.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

Defendant cast in an action can not be forced to remain in court until it shall suit the representatives of a plaintiff, who has died since the signing of the judgment, to make themselves parties to the action. He is entitled to a continuing plaintiff, and if plaintiff’s representatives fail to make themselves parties, defendant is authorized to have them represented by a person appointed for that purpose by the court. Appellee contends that the provisions of Arts. 116 and 964 of the Code of Practice and 313 of the Civil Oode do not apply to the appointment of a curator ad hoc to a plaintiff, but we are of the opinion that an appeal by a defendant partakes sufficiently of the nature of a claim against a plaintiff who has succeeded in obtaining a judgment against him, to fall under the terms of those provisions of the law. [14 An. 157; Zuberbier & Behan vs. Prudhomme et als., 34 An. 1049; Covas et al. vs. Bertoulin et al , 44 An. 689; Crawford et al. vs. Binion, 46 An. 1266.] Quoad an appeal, plaintiff is called on to act defensively.

We are of the opinion that upon the death of Mrs. M. O. Theus, defendant was authorized, on suggesting as he did that fact, under oath, to have a curator ad hoe appointed by the court to represent the minors. That such order was made, appears of record.

The curator ad hoc, though contesting the legality of the appointment, has none the less accepted it, as he appears to dismiss the appeal. He insists upon the dismissal for the want of a statement of facts.

The statment made bears date of the 8th of May, 1897. It is not included in the body of the transcript and copied as part of the same, but appears as an independent document at the foot of the transcript.

The character of the issues involved is such as to require for their determination here, either a copy of the testimony taken in the lower court or a statement of facts. The statement of facts forwarded was made out too late; it having' been made after an order of appeal had been granted, and appellant had filed his bond under it. The appeal must, therefore, be and it is hereby dismissed. State ex rel. Boudreau vs. Judge, 13 An. 485; Logan vs. Winder, 20 An. 253; Boutté vs. Boutté, 30 An. 181.

ON Application por a Rehearing.

Breaux, J.

The appellants contend that our judgment; affirming the judgment of the lower court, is erroneous, because, as they assert, the law does not provide for a note of evidence in the justice court, and the manner of bringing up an appeal from a justice court is in a statement of facts, or on questions of law, to be decided upon the face of the papers.

The appellants in support of their position aver that there is a •“ statement of facts ” of record made to supply.

The justice certified to the correctness of the transcript as containing a complete copy of all the proceedings.

This statement of facts gave rise to two objections.

1. It does not appear to have been made contradictorily with the appellee, nor is it shown that it was made at the request of either of the parties, or that the appellee refused to join in making out this “ statement of facts.”

In our judgment the justice can be called upon to make it only after refusal of the adverse party. C. P. 683; Castaing vs. Stone, 4 An. 18.

There is no evidence of record of the refusal of the appellee to join in making out the “ statement of facts.”

Part of the argument for a rehearing is made with reference to an agreement between counsel, covering, it was said, the “statementof facts.” It is well settled that agreements not written or noted by the court can not be considered by us, save with the consent of all concerned.

There is no agreement of record, nor by counsel in regard to a ■“ statement of facts.”

2. The other informality consists in the fact that the appeal had been perfected at the date that the statement of facts was written by the justice.

■ The codal provisions relating to appeal require that such statement be written prior to completing the appeal. C. P. 602. “Not after filing of bond.” The Minors Smith—J. W. Smith, Tutor, 22 An. 253; Hodge vs. His Creditors, 3 La. 290; Union Bank vs. Williams et al., 16 La. 236.

But it is further contended, substantially, in the application for a rehearing, that even if a statement of facts contained in a transcript be rejected, the remaining issues apparent of record should be considered. This is eminently correct. But the difficulty which «rises, as relates to the appellant, is that there are no issues remaining which can be considered by the court. The exemption under the homestead law claimed is not sustained by any evidence, unless due consideration be given to the statement of facts which was not timely made.

The manner of bringing up appeals as laid down in prior decisions upon the subject as we read them having been by us restated, in order to uphold jurisprudence and the law, we desire to state that we have carefully examined the issues as they appear presented by the rejected statement of facts. We have in deference to the appeal, nevertheless, given to the appellants’ cause, based upon a claim for a homestead, all the weight we think should be given to a statement of iacts prepared within the time required, in due form — i. e., as if the statement was regularly before us.

This statement shows that the two defendants were the joint lessees of the place and jointly interested in the lease; that the corn provisionally seized was raised on the leased premises, and was on the leased premises when seized.

The promissory note upon which judgment was obtained, which was enjoined, was signed by the two defendants for the year 1896. It follows that the property was the joint property of the two defendants, and that the note also was a joint note.

One of the parties or joint owners could not sell or transfer the property jointly owned to his copartner, or- cojoint owner, until payment of the promissory note of which they were the makers. A privilege or pledge had arisen; the note represented the rental, and was secured as to its payment by pledge or privilege; neither could be affected by a dation or transfer made by one of the joint owners to the other while the property was on the place leased. The lessor has more than a privilege; he may even take possession of the property and retain it until the rent is paid. The dation en paiement made to the homestead claimant by his son, the codefendant, did not have the effect of freeing the property from the lessor’s privilege and of rendering it subject to exemption under the homestead law.

In Carter Brothers & Co. vs. Calloway & Burns, 36 An. 475, this court said: “ The real question is, whether creditors of an individual can apply the assets of a partnership, of which that individual is a member, to the payment of the individual’s debt to the prejudice of creditors of the partnership,” and decided that creditors of an individual can not apply the assets of a partnership of which the individual is a member to the payment of his debt, to the prejudice of the creditors oi the partnership.”

Precisely the case here, save that it appears that the parties held the property in indivisión.

As it was subject to a privilege or pledge, it was as effective against property held in indivisión as against property owned by a partnership.

It is therefore manifest, had we passed the points decided, adversely to defendant, and considered the case on the merits, the result would have been the same.

The application for a rehearing is refused.  