
    (99 South. 276)
    No. 26003.
    BEUHLER v. BEUHLER REALTY CO., Inc.
    (July 11, 1923.
    On the Merits, Feb. 4, 1924.)
    
      (Syllabus by Editorial Staff.)
    
    On Motion to Dismiss.
    1. Appeal and error <&wkey;347(l) — Time to appeal ■ from refusal to appoint receiver runs from “entry” of written order, and not from verbal announcement.
    Under Act No. 159 of 1898, § 4, providing that, an appeal from a refusal to appoint a receiver must be taken within 10 days from “entry of the order,” such time must be counted from the entry of the order after being reduced to writing and signed, and not from the verbal announcement in view of Code Prac. art. 546.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Entry.]
    2. Appeal and error <@=»374(3) — 'Tutrix suing in forma pauperis for appointment of receiver held entitled to appeal devolutively without bond.
    Where a, tutrix had been permitted to sue in forma pauperis, as provided by Act No. 156 of 1912, for the appointment of a receiver of a corporation wherein her wards owned stock, she was entitled to appeal devolutively without furnishing bond as expressly authorized by Act No. 260 of 1918, amending Act No. 156 of 1912.
    On the Merits.
    3. Husband and wife &wkey;>273(2) — Heirs of deceased spouse held not entitled to accounting by surviving spouse as to community property of which they held naked ownership alone.
    Where the head of a marital community sold real estate to a corporation in return for stock, such stock became community property, and he was the owner of one-half thereof, and upon his wife’s death, until his remarriage, was entitled to the usufruct of the other half in view of Civ. Code, art. 916, and the heirs of the deceased wife having only the naked ownership of one-half could not demand an accounting of him in the absence of proof of his remarriage.
    4. Husband and wife &wkey;j274(4) — Plaintiff seeking accounting by surviving spouse for community property could not prove his remarriage in absence of allegations thereof.
    Where a natural tutrix sued for the appointment of a receiver of a corporation wherein her wards owned stock and, sought an accounting against the surviving husband of the mother of such wards on the ground that he was wasting their share of the community property, plaintiff could not prove that such surviving spouse had remarried; she not having alleged such fact in her petition.
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; Leven L. Hooe and J. A. Williams, Judges.
    Suit by Mrs. Hattie D. Beuhler, tutrix, against the Beuhler Realty Company, Incorporated, for the appointment of a receiver. Judgment for defendant, and plaintiff appeals.
    Motion to dismiss appeal overruled, and judgment affirmed in part and in part reversed and rendered.
    Thos. Arthur Edwards, of Lake Charles, for appellant.
    Hawthorn & Stafford, of Alexandria, for appellee.
    By the WHOLE COURT.
   On Motion to Dismiss.

OVERTON, J.

Plaintiff, Mrs. Hattie D. Beuhler, as natural tutrix of her minor children, instituted this suit for the purpose of placing, the Beuhler Realty Company, Incorporated, in which her wards own stock, in the hands of a receiver. The suit was instituted in forma pauperis. Defendant traversed, by rule, the order permitting plaintiff to sue in that form and manner. The rule was tried, and after it was heard, the court refused to vacate the order, permitting plaintiff to sue in that manner.

.After the trial of the rule, the case was tried on its merits, and the trial resulted in the rejection of plaintiff’s demand, and in condemning plaintiff to pay defendant $1,000 attorney’s fees.

The judgment on the merits was rendered orally, in open court, on April 20, 1923, and was signed, as appears from the judgment and the minutes of court, on May 7th of that year.

Immediately after the judgment was signed, plaintiff moved for and obtained a suspensive and a devolutive appeal, returnable to this court. Tbe judge fixed tbe suspensive appeal bond at $1,200 and the bond for a devolutive appeal at $200. On the next day, plaintiff called the court’s attention to the fact that she had been permitted to she in forma pauperis, and therefore, under the law, was not required to furnish a devolutive •appeal bond, whereupon the court at once amended its order of the previous day, so as to permit plaintiff to appeal devolutively, without furnisiing bond; and plaintiff has thus appealed.

Immediately after the record was lodged in this court, defendant filed a motion to dismiss the appeal on two grounds, one of which is that the appeal was not taken within the time prescribed by law, and the other is that no appeal bond has been furnished.

The law, governing the appointment of receivers, and prescribing the procedure for such appointments, including the time within which such appeals may be taken, is to be found in Act No. 159 of 1898, and the amendments thereto. Section 4 of that act, in so far as it is necessary to quote it, reads as follows:

“Any person or persons who by affidavit appear to be interested, in giving.bond in a sum to be fixed by the court, may appeal in the face of the record from any order appointing, or refusing to appoint a receiver, granting, or refusing to grant an injunction as aforesaid; * * * provided that such appeal must be taken arid perfected within ten days from the entry of the ■ order' appointing or refusing to appoint a receiver, or granting or refusing to grant an injunction. Such appeal shall be returnable in ten days from the date of such order, and shall be tried by preference in the appellate court. * * * ”

The contention of defendant is that the 10 days, fixed by the foregoing section of the act, as the time within which.the appeal must be taken, if taken at all, begins to run from the entry of the order, appointing or refusing to appoint a receiver, although the entry should be only of the verbal announcement by the court of its judgment. We think that defendant is in error in so contending. The statute has reference to the order of the judge in its completed or finished state. The order appointing or refusing to appoint a receiver is a final order or judgment. As it is final, it should be ^signed, which obviously implies that it must be written. Code of Practice, art. 546. It is from the entry, in the minutes of court, of this written and signed order or judgment, that the 10 days’ delay, within which to appeal, jnust be computed. Until the order is signed, there is nothing from which to appeal. Orleans & J. Ry. Co. v. International Construction Co. et al., 118 La. 410, 37 South. 10; Le Blanc v. Lemaire, 52 La. Ann. 1635, 28 South. 105.

We find nothing in the foregoing view that is in conflict with the cases of State ex rel. Garig v. Judge, 104 La. 477, 29 South. 18, Crichton v. Webb Compress Co., Ltd., 107 La. 86, 31, South. 648, In re Louisiana Driving & Racing Club, 120 La. 268, 45 South. 127, and other cases cited by defendant, interpreting the statute, under consideration.

In the Garig Case, the question at issue was whether Sunday should be included in computing the delay for a suspensive appeal from an order appointing a receiver. The court held that it should be included. In that case no question arose as to whether the delay began to run from the entry of the verbal announcement of judgment by the court, nor was there room for such a question to arise. The judgment, in that case, was rendered, signed, and entered on the same day. Therefore, in computing the delay, it necessarily had to be reckoned from the entry of the written and signed judgment, since there was no entry of a mere verbal announcement of judgment., In the Crichton Case it is stated that a written opinion was read and filed in open court on December 4, 1901; that an order of appeal was granted plaintiffs on December 14, 1901; and that an appeal bond was. filed on December 18, of that year. The question there submitted for decision was: Did plaintiffs-perfect the appeal by the timely filing of the bond? It was held that they had not. In that case, as in the Garig Case, nothing was said as to whether the delay should be computed from the entry of the written and signed judgment of the court, or from the entry of the verbal announcement of that judgment. While the opinion in the Crichton Case does not expressly state that the opinion and decree rendered by the lower court was signed at the tibie by the trial judge, yet the intention was to convey that impression. An examination of the record, in that case, shows that the written opinion rendered by the judge concluded with his decree, and was signed by him, and was entered in the minutes of court on the same day that the judge read the opinion in open court, announcing his judgment. Hence, as in the Garig Case, the computation of the delay for appealing and for filing the bond necessarily had to be made from the entry of the written and signed judgment of the court, for the manifest reason that there was no entry.of an oral announcement of judgment from which to count it. Hence this court did not say in that case whether the delay should be reckoned from the entry of the oral announcement of judgment, or from the entry of the written and signed judgment of the lower court. In the Louisiana Driving & Racing Club Case, the judgment, appointing a receiver, was rendered September 30, 1907, and was signed on October 4th following. On October. 14th an order was obtained, granting a suspensive' appeal from the judgment rendered and signed, and an appeal bond was filed. A contest arose in the lower court with respect to the validity and sufficiency of the appeal bond. On October 17th, the appellants filed another appeal bond, and relied only upon that bond to maintain their appeal. The appellees moved to dismiss the appeal for the reason that the appellants had not perfected their appeal within 10 days from the entry of the order refusing to appoint a receiver, and for the further rpason that they had not furnished an appeal bond with good and sufficient surety. It was manifest in that case that more than 10 days had intervened between the day the judgment was signed and entered and the day the only appeal bond, relied on by the appellants, was filed; and hence this court dismissed the appeal for the specific reason that it had not been perfected within the delay prescribed by the statute. In that case, as in the others, the court did not say whether the delay ran from the entry of the oral announcement of judgment or from the entry of the written and signed judgment of the court, nor was there any occasion to determine that question, for it made no difference in those cases from which date the delay ran.

In the cases reviewed above, it is therefore clear that the point presented in the case at bar for determination was not decided, nor was there any occasion to decide it in any one of those cases, nor was the point decided in any other case of which we have knowledge. However, in the cases reviewed, the statement is made by the court that the General Assembly, in enacting Act 159 of 1898, relative to the appointment of receivers, “was dealing with a particular subject, and evidently intended to regulate and cover the whole practice concerning that particular matter.” This is a general statement, but it is largely true. The Legislature was dealing with a special subject in a particular manner. The above statement, made by this court, in the cases reviewed, is stressed by counsel, and should be noticed, not only for that reason, hut also because we have resorted to the general law in ascertaining whether the General Assembly intended that the order from the entry of which the delay for appealing begins to run is the entry of the oral announcement of judgment or the entry of the written and signed judgment of the court. In so resorting, we do not think that we have departed from the general statement above quoted. In fact, in the first case in which that statement was madej that of State ex rel. Garing v. Judge, cited supra, the court resorted to the general law by referring to article 318 of the Code of Practice to aid it in determining whether Sundays should be included in the delay for an appeal from an order appointing or refusing to appoint a receiver, just as we have resorted to article 546 of the Oode to aid us in determining whether the delay runs from the entry of the judge’s verbal order, or from the entry of this written and signed order, making or refusing to make the appointment.

In the case at bar, as the appeal was taken within 10 days after the entry of the written and signed order of the judge refusing to appoint a receiver, it was timely taken, provided, of course, plaintiff was not required to furnish an appeal bond, for none was furnished.

The fact that plaintiff furnished no such bond, as we have had occasion to observe, constitutes the second ground of the motion to dismiss. It will be recalled that the trial court permitted plaintiff to sue without furnishing a bond for costs, and without paying the costs, as they accrued; and that the court at first fixed a devolutive appeal bond, but, when its attention was called to the fact that plaintiff had beeri permitted to sue in forma pauperis, relieved her of furnishing the devolutive appeal bond. Plaintiff contends that, as she has been permitted to sue in forma pauperis, as provided by Act 156 of 1912, she may appeal devolutively without furnishing bond, and cites, in support of her position, Jackson v. Cousin, 138 La. 197, 70 South. 96; Smith v. Lyon Cypress Co., 140 La. 507, 73 South. 712; Mathis v. Kansas City Southern Ry. Co., 140 La. 855, 74 South. 172; and Muller v. Johnson, 140 La. 902, 74 South. 189. The decisions cited were rendered prior to the adoption of Act 260 of 1918, amending and re-enacting Act 156 of 1912, and hold that, under the act of 1912, one who may sue in forma pauperis may appeal devolutively from the judgment rendered in the case, in which he is thus permitted to sue, without furnishing an appeal bond. The amendment of 1918 expressly authorizes devolutive appeals without bond by onb who is permitted to sue in forma pauperis, thus confirming the jurisprudence in that respect. Defendant contends, however, that Act 156 of 1912, as amended by Act 260 of 1918, does not apply to a suit by stockholders to place a corporation in the hands of a receiver, for the reason that the very fact that the person sxxing is such a stockholder is a refutation of the other and necessary fact that such a person has no property, and cannot, therefore, pay the costs of court as they accrue, or give security therefor. We see no reason, however, why a person may not own stock in a corporation, and yet, having good grounds upon which to sue for the appointment of a receiver, be unable to institute such a suit, for the reason that, because of his poverty, he can neither furnish bond for costs nor pay the costs as they accrue. It is true that it is not likely that a stockholder in a corporation will be placed in such a position, but it is possible for him to be so placed, and it is because of this possibility that the law grants the above relief.

Defendant further contends that Act 159 of 1898, authorizing and regulating the appointment of receivers, is not affected by Act 156 of 1912, as amended by Act 260 of 1918. However, in our view, Act 156 of 1912, as amended by Act 260 of 1918, is applicable to suits instituted for the appointment of a receiver, under the act of 1898. By its terms, the former act, as amended, applies to all suits, except those for obtaining a separation from bed and board or for divorce.

For the reasons assigned, the motion to dismiss the appeal herein is overruled.

On the Merits.

By Division A, Composed of O’NIELL, C. X, and BRUNOT and ROGERS, JJ.

BRUNOT, J.

Plaintiff, in her capacity as tutrix to her minor children, applied to the court for the appointment of a receiver for the defendant corporation.

The petition alleges that Emmet, Beuhler and Mrs. Mary S. Beuhler were husband and wife; that the community of ácquSts and gains existed between, them; that the community owned three valuable lots of ground in the city of Alexandria, Rapides parish, La.; that Emmet Beuhler, John C. Beuhler, and Mrs. A. G. Murphy organized the Beuhler Realty Company, Incorporated, with an authorized capital stock of $90,000, represented by 900 shares of stock of the par value of $100 each; that Emmet Beuhler, as head and master of the community, sold and transferred to the Beuhler Realty Company, Inc., the three lots of ground described in the petition and belonging to the community, at a valuation of $85,000, and received therefor 898 shares of the capital stock of that company ; that subsequent to the transfer of this property to the Beuhler Realty Company, Incorporated, Mrs. Mary 'S. Beuhler died intestate, leaving the plaintiff's wards and other forced heirs as her sole heirs; that the succession o-f Mrs. Mary S. Beuhler. has not been opened; that plaintiff’s wards inherit, by representation through their deceased father, one-twelfth of the estate; that Emmet Beuhler has been the president of the Beuhler Realty Company, Incorporated, since its organization -and has had the exclusive management of its affairs, including the authority, conferred by its charter, to sell any and all property owned'by the corporation and to fix the terms and price of the sale therefor; and that the president and'directors of the corporation are grossly mismanaging its affairs by wasting, misusing, misapplying, and misappropriating its property and moneys, and jeopardizing the rights of petitioner’s wards. The specific allegations of mismanagement, etc., are that the president has received $15,200 from the rents and revenues of the property belonging to the corporation and from, the sale of one of the lots owned by it; that no dividends have been declared by the corporation or paid to plaintiff’s wards and no accounting has been made of the money received and disbursed by the corporation; that the president has received a salary of $150 per month from the corporation as its president and general manager and an additional sum of $50 per month as an advance upon dividends to be declared; and that the salary received by the president is out of proportion to the services rendered the corporation.

It is upon these allegations alone that the appointment of a receiver is prayed for, and from a judgment dismissing plaintiff’s suit and awarding defendant $1,000 as attorneys’ fees, with a reservation of defendant’s right to sue for any additional attorneys’ fees and costs thereafter incurred, the plaintiff has appealed.

In this court the defendant moved to dismiss the appeal upon two grounds, viz.: That plaintiff’s appeal was not applied for timely, and that plaintiff was granted an appeal without bond. The motion to dismiss was overruled, and the case is now before us on the merits.

It is well to note here that the petition does not allege that Emmet Beuhler remarried, or that the corporation is insolvent, or that it owes any debts.

The defendant in the court below filed an exception of vagueness and an exception of no right or cause of action, and with a reservation of all its rights under these exceptions, an answer wa§ filed in which the defendant denies all of the allegations of the petition which are urged as grounds for the appointment' of a receiver except the allegation as to the salary paid to the president and general manager by the corporation and the receipt by him of the advance dividends. It is alleged in the answer that the sum of the advance dividends was deducted from dividends subsequently paid by the corporation.

The exceptions do not appear to have been passed upon by the lower court.

The record discloses- that all of the stock of the Beuhler Realty Company, Incorporated, except two shares, was issued to Emmet Beuhler. This stock’ was the consideration paid to Beuhler for the three lots of ground belonging to the marital community which Beuhler sold to the corporation. This stock was therefor community property. Beuhler is the owner of one half of it, and until he has remarried, he has the usufruct of the other half, and the earnings thereof belong to him. Article 916, O. O. The heirs of Mrs. Mary S. Beuhler, deceased, have only the naked ownership of the one half pf the ■community owned by her at the time of her death, and until it is alleged and proven that the surviving spouse has remarried, they have no interest in demanding an accounting of him.

The plaintiff, however, has sought to enlarge the pleadings by offering proof, over the objection of counsel, of a fact not alleged in the petition, viz., that Emmet Beuhler re* married. This she cannot do, and the lower court erred in overruling counsel’s objection to the testimony offered for this purpose.

“Plaintiff cannot prove what he has not alleged.” La. Dig. vol. 6, par. 113; Bell v. Globe Lumber Co., 107 La. 725, 31 South. 994; Wooten v. United Irr. Co., 128 La. 294, 54 South. 824.

If plaintiff cannot enlarge the pleadings by proving a material fact not alleged in the petition, viz., that Emmet Beuhler remarried and thereby forfeited his usufruct to his deceased spouse one-half of the community and his ownership of the fruits and earnings thereof, the plaintiff has failed to allege a right of action, and the lower coru;t erred in not sustaining this exception and dismissing the suit.

Having reached the conclusion, for the reasons stated, that the exception of no right and. no cause of action should have been sustained and the suit dismissed, it is not necessary to pass upon the other issues presented.

The judgment of the lower court, after a hearing on the merits, dismissed plaintiff’s suit, awarded defendant a judgment for $1,000 as attorneys’ fees, and reserved to defendant the right to sue for additional attorneys’ fees and costs which might be incurred in the further prosecution of the suit.

We think the exception of no cause or right of action should have been sustained with a reservation of defendant’s right to sue upon the bond given to secure attorneys’ fees and costs. It is therefore ordered that the judgment appealed from is affirmed to the extent that it dismisses plaintiff’s suit, but in ail other respects it is reversed, and it is now ordered, adjudged, and decreed that defendant be referred to the bond and to plaintiff’s bondsmen for the recovery of attorneys’ fees and costs and the right of defendant to sue thereon is recognized and reserved to it; the costs of this appeal to be paid by appellee and appellant in equal proportions.  