
    No. 7251.
    J. E. Austin, Receiver, vs. Noah Scovill et als.
    la the absence of the Judge of one of tlie District Courts of bFcw Orloans, another District Judge of tho same Parish could grant an appeal from a judgment rendered by tho absent Judge.
    When the appellant has prayed for an appeal aud filed his bond, within the legal delay, the omission of the Judge to sign the order cannnot prejudice the rights of such appellant.
    This suit is upon a contract to wreck a sunken steamer and remove therefrom all the movable property. The Court holds that a certain agreement in another suit against the insurers of the steamer, did not affect the contract with the wreckers.
    APPEAL from the Sixth District Court for the Parish of Orleans. J&ghtor, J.
    J3. F. Forman, for Plaintiff and Appellee.
    
      
      Bayne c6 Deneyre, for Defendants and Appellants.
    
      Albert Voorhies, for the Merchants’ Insurance Company, Defendant and Appellee.
    
      T. E. Kennedy and E. ChiapeUa, for the Union Insurance Company, Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, C. J.

This appeal is'from a judgment of the Sixth District Court of New Orleans. The judgment was rendered on July 3d, 1878, the last day of the term. On the 9th of same month the appellant prayed a suspensive appeal, obtained an order therefor from Judge Tissot of the Second Court, who was sitting to grant orders for Judge Rightor of the Sixth Court, and filed his bond of appeal in accordance ■with that'order on the. same day. ' Judge Rightor was absent'from the State on the'9th of July. ' • ■■

The plaintiff moves to dismiss on the ground that neither the Judge of the Second Court, nor any other, could lawfully act in any other Court than his own, to grant orders, and therefore the act of Judge Tissot in granting an appeal from a judgment of the Sixth Court was null. He could not sit in the Sixth Court for any judicial purpose.

It has been customary for many years for the Judges of the New Orleans Courts to arrange among themselves for the transaction of business in their several courts during the vacation, other than the trial of causes, and it is now contended that this practice is without warrant of law. A great deal of routine business has been thus conducted, and it is important to know whether it has been legally done.

The question came up in St. Romes vs. Levee Steam Cotton Press, and it was held that in the absence of the Judge of one of the District Courts of New Orleans, another District Judge of the'same parish could grant an appeal from a judgment rendered by the absent Judge. Opinion Book 45, p. 329.

We are not disposed to overrule a decision, upon which the profession has since acted, and especially when it is in accordance with the practice which had obtained, and which was uniformly followed during many years anterior to its rendition. We will assume that the Judge of the Second Court was acting under the law of 1855, p. 317, Sec. 13i

It appears that out of abundant caution, the appellant procured an order of appeal from Judge Rightor of the Sixth Court, on August 21 st, after he had returned, and it is urged by the appellee that this could not operate as a suspensive appeal, the ten days having expired from the date of the judgment;

The appellant had prayed an appeal, and filed his bond within the delay. If the Judge delayed signing the order, that should not prejudice the appellants’ rights. In Estopinal vs. Zunts, where an appellant had filed his petition and bond within the delay, but the Judge did not grant or sign the order until five days thereafter, and until the ten days had elapsed, it was held that he could not be made to suffer because the Judge did not sign the order of appeal at the time the petition and bond were presented to him. Ibid, p. 23.

The Act of 1839, now incorporated in the Code of Practice, (Art. 898) has greatly reduced the number and kind of causes for which appeals may be dismissed, and even before that, this Court said:

Accidents beyond the appellant’s control may prevent him from bringing up the record in due time. The clerk of the inferior court may die, may be disabled by sickness, or a great pressure of business may prevent him from making out the transcript, or he may neglect or wilfully omit doing it. Other events may cause a delay. In such case the transcript will be received, and no objection be allowed.” Kirkland vs. his Creditors, 8 New Series, 597.

A third ground of dismissal is the want of legal citations of appeal. The appellees were cited under the first order of appeal granted by Judge Tissot, and the plaintiff insists that that order being null, citations must have issued after Judge Rightor’s order before that appeal can have effect. At most thatwould be a neglect of the clerk, for which the appellant cannot be deprived of his right of appeal, but since we hold the appeal granted bythe Judge of the Second Court, sitting in the Sixth Court as Judge in lieu of the Judge of that Court, to be good, the citations under that order are sufficient.

If the appointment of another Receiver, viae Austin, deceased, upon Avhom citation of appeal was served, be invalid, we should not dismiss on that account, but remand for a proper party to be made.

The motion is denied.

On the Merits.

Levy, J.

This suit was brought to recover of the defendants the sum of twenty-five hundred and fifty dollars, with five per cent, per annum interest from judicial demand.

It is alleged in the petition that Noah Scovill, for himself and as master of the steamer Texarkana, which had sunk in Red River, and as agent of the Union and Merchants’ Mutual Insurance Companies, in which said steamer was insured, entered into a written contract with McClintock and Dixon to wreck said sunken steamer and to remove therefrom all the movable property thereon, to-wit: her machinery, boilers, engines, etc., all to be delivered to the order of said Scovill, on the bank or on board the steam wrecking boat “Dixie;” that said agreement was made in the name of said McClintock and Scovill alone, but really for the account of McClintock and Dixon for the one part, and for the account and benefit of said Scovill and said Insurance Companies of the other part, and the work was undertaken with the knowledge, assent and ratification of said Companies and their officers; that said McClintock and Dixon performed said work and made such disposition of all the said movable property as was directed by said Scovill, and to the best advantage of all parties concerned, and faithfully executed said contract in all particulars. That with the knowledge and assent of said Scovill and for the preservation of said property, they shipped a large portion of it to New Orleans on their own boat, for which they claim three hundred dollars as freight, in addition to the $2,250 stipulated in the contract.

The contract purports in its body to be between McClintock and Scovill, and is signed by both of them in their individual capacities.

There was judgment against the defendant, Noah Scovill, for the sum of $1,417.50, and in favor of the defendants, the two Insurance Companies.

A remittitur of $366.25 was entered by the plaintiff, which reduced the judgment to the sum of $1,081.26.

A suspensive appeal was taken by the defendant, Scovill, and a devolutive appeal by the plaintiff, Receiver, the latter being taken to the judgment so far as it rejects the claim and demand against the Insurance Companies.

The record discloses the following facts:

Defendant, Scovill, was the owner and master of the steamer Texarkana, engaged in the navigation of Red River, and insured the boat, which was valued at $30,000, in the two Insurance Companies for $10,000 in each, he being, practically, his own insurer for the remaining $ 10,000 of said value.

While thus insured, on the 20th of August, 1870, the steamboat sunk in Red River, some thirty miles or more below Shreveport, the sinking resulting from a collision with another steamer. As soon as the accident occurred, Scoville, master and owner, telegraphed to the insurers in New Orleans, who at once sent Captain Andrews of the New Orleans Wrecking Company, to the scene of the disaster. Captain Andrews reported that the Texarkana was not worth raising. Scovill came to New Orleans, made proof of the loss, and abandoned the boat to the Insurance Companies, who refused to accept the statement or to pay the loss, on the ground that the collision was the result of negligence on the part of the captain and pilot of the Texarkana, which relieved them from all liability. Scovill then returned to the wreck and on the, 3'0tli of September, .1870, entered into a contract with McClintock, whereby the latter was to remove all tlie movable property on the boat for the sum of $2,250. Suit was instituted to recover the amounts of the policies against the Insurance Companies and pending the appeal to the Supreme Court of.the United States on the judgment rendered against the Union Insurance Company, an agreement was entered into, in the present suit, whereby it was agreed “ that'the trial of this case shall bo postponed until a decision is rendered by the Supreme Court in the case of Kennett & Bell vs. The Union Insurance Company, et als., in which case is involved the question of the liability of the Union Insurance Comp'any on the policy sued on in that case; so it is agreed tliatdhe dócision of said Supreme Court on that question shall be conclusive of the same question in this case.”

It is contended by plaintiff that the agreement bound the defendants absolutely, and was intended to fix conclusively defendants’ liability, and as the suit was' decided by the Supreme Court adversely to the Insurance Company, defendants are estopped from disputing the claim, in this suit. We do not. agree with plaintiff in his construction. The agreement distinctly and specifically refers to the question of the liability of the Company cm the policy, which liability was denied on the grounds above stated, and the decision as to such liability on the policy was to be decisive óf the same question in this suit. The reason for this is manifest: if the Insurance Companies were not liable on the poiicy, under no circumstances, under the pleadings herein, could they be held responsible for any portion of the claim of McClintock; hut even if thus liable on the policy, there was nothing in the agreement which prevented them urging other defenses against the claim of McClintock.

An examination of all the testimony disclosing all the circumstances, of the case, irresistibly leads us to the conclusion, that tlie abandonment of the wreck was not accepted by the Companies; on the contrary, they refused the abandonment, denied their liability on the policy of iñsúrance, and thus virtually disclaimed any inter íst in the wreck, etc. Tile master had communicated with them, by correspondence and personally, and they bad refused to enter into a contract with McuClinto'ck to raise the boat, on terms proposed by him, and the written contract entered into with McClintock by Scovill was on its face a contract with Scovill individually, and without the slightest reference or allusion to the Insurance Companies or any other parties. What may have been said by Scovill at the time, out of the presence of, and without the knowledge or ratification of the Companies,-does not, under the circumstances of the case, bind these Companies, and Scovill’s state-, mentas to the knowledge and consent and approval of the Companies, uncorroborated by other testimony or supporting facts, is completely counterbalanced by tbe positive contfadiction of tbe presidents of tbe Companies.

This view of the case renders it unnecessary for us to consider the other points raised both by plaintiff and defendants, and even dispenses us from cousideratiou of the sale of the property, and disposition of its proceeds by and between McClintock and Scovill, without consultation with the Companies, or regard to the interests which these two allege the Companies had, and without accounting for the said proceeds of sale.

The judgment, in our opinion, renders justice to the parties, and we shall not disturb it.

The judgment appealed from is therefore affirmed, at costs of appellants.  