MITCHELL &. RAMMELSnURG FtJRNITtrRlll
dO.
V. SAMPSON.
'111
verifiCation, and'4pproval in open court; that counsel fees' were allowed by the court, and were reducedjas set forth; that in the cases before commissioners, on the days for which per diim fees were disallowed no witnesses were examined, but, prisoners were brought in by the marshal, the officer's reJ;nrns upon the precepts were examined;' the prisoners were arraigned and plel,lded; sometimes upon the motion of the government, and sometimes on that of the respondent, supported by reasons found by the commissionersufficienti the hearing' was adjourned to a later day, and the party recognized or was committed for appearance at the appointed time. In no instance was such Mjournment,had with any purpose of increasing fees or multiplying days' attendance. OF' LA.vi. The fees rel?ides in the;point, made are npt subject ,to reduction by any pther Qffiic6f" , U. S. V. W(1ters l ,133U. S. ,208, 10 Sup. Ct. Rep. 219. "services" war· . removal of p'iisoners from ,this dilltrict,. nothing cap .. If par-tof the attorn,ey's dpty.,witlwut special fi,mnth6 rif justice:.w ;to this, ness,. it be regl;Lrded tlS "enjoined. ,by; l.aw of ,his p:fficei: for which he must ae gi'!'esj:lim,;'! oJ1tj the i,spaid of :8iftnton,v. u. S.· fees for ;the 4Q1YSi ·and .hea.ripg was continued. are, pfoperlYJ9parg\l<l, and,;thft :pe; titi9neds et:\titled ,to pliynient,of the tlW sioninrespect to the forexamiuatiRn ',of qony,kttj for, . p; .{1YiU8, V. S. ;483 J 10, Stanton v. O. S., 37,Fed. . ' : :.: ' . , . ". {9r ;.·\ ,'I' ,:;', il
Mr.r6tELL
&;
RAMYEisBURG FURNITURE
Co. v.
SAMPSON. 1'.1[:·/',.
,Cr;nLrt, N ·.D. ,Floridq,.., .Febl"lla,rr 16" J:891.}
l'DJ)GMBNT-RiwIVAL-PARTNJiitSlffi.-CITA,TION.. !.'
Civil Cadeta. art; 8M7, providing for reviving a jUdgment, prescribes' ttiat I1i be dOlle, by having a oitation. issued "to the. defendant or . · * and,if,lIuoh defendant be not CQurtWlllY !loP': point a IYIl-ratorad Me to !-'epresent ):lim in. .1i4e upon whioh ad hoc the· citation shaUbe' served.» He'ttt tllat . rendered '.agaU1!it >1' partnersbl.p and 1ihe memben.individuallY,· I'll BolWo; cannot-be·revived Ii member who has since the. oitation is to; and the appomtDien1i; euraW/" ali /We tor, the .partnership only. " " -.' , ) ." . . . . 't
.
.."....., ..'
AtIJRw. j , ,Civil l art. 3547" provides! that' "all jridginents' for ,m'OMy ! '*.·.· *,.'shaH:be.pr.esoribed, ten years
112
FEDERAL REPORTER, vol. 45.
tion of such judgments: provided, however, that any party interested in any judgment may have the same revived at any time before it is pre/ilcriped, by having a citation issued, according to law, to the defendant or his representative, from the .court which rendered the judgment, unless defendant or his representative show good cause why the judgment should not be revived, and if such defendant be absent, and not repre!lented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served." . H. B'kbee, for plaintiff. Cooper & Cooper, for defendant. PARDEE, J. A stipulation in writing having been filed in this case, waiving trial by jury, thecause thereupon being tried by the court, after hearing evidence and argument, the court finds the following facts in the case: On January 19, 1875, the· Mitchell & Rammelsburg Furniture Company brought suit against the firm of Sampson Bros., in the sixth district court for the pariah of Orleans, state of Louisiana, to recover the contents of a certain promissory note made by Sampson .Bros. to the orderofpetitioner, dated January 1,1875, for the sumof$7,778, with 8 per cent. interest from January 1, 1875, until paid. On the same day citation directed to Sampson Bros. was issued, which, on the 22d day of January, was served personally on A. Faunce, agent of said Sampson Bros., who accepted service of the same. On the 28th of January following,a supplemental petition was filed and allowed by the court, alleging 'all the allegations of the original, and praying for citation against FratikG. Sampsonl1rid Chandler Sampson each, individually, and as members of the firm of Sampson Bros., and for judgment as prayed for in the'original petition. Afterwards, on February 11,1875, the defendants by counsel filed in said court the following answer: ..And into this honorable court come defendants by their undersigned counsel, who, for answer to the plaintiff's demand, deny all and singly the allegations therein contained. Wherefore they pray to be hence dismissed, with costs, and for general relief. "BREAUX, FENNER &; HALL, [Signed] " Attorneys for Defendants." On March 1, 1875, the court rendered the following judgment: "And after hearing the pleading and evidence, the court considering that the law and the evidence are with the plaintiff, it is ordered, adjudged, an,d decrl:led that tb-el'e beiQdgment in favor of thl:l plaintiff, the Mitchell and Rammelsburg Furniture Company, and against defendants, the firm of Sampson Brothers, and Chandler Sampson and Frank G. Sampson in solido, in thl:l sum of se;venthousand seve.nbundred and seventY-l:ligbt dollars, ($7,778.00,) with eight percent. (8 %)yearly interl:lst from 1st January, 1875, until paid, and costs of suit. JUdgment signed 6th March, 1875. [Signed] "A. SAUCIER, Judge." Afterwards, on January 28, 1885, the Mitchell & Rammelsburg Furniturl:l Company tiledl1. petition' in the civil district court for the parish of Orleans, state of· Louisiana, .the legal successor of the' sixth district
MITCHELL &; RAMMELSBURG FURNITURE CO. V, SAMPSON.
113
wurt for the parish of Orleans, which rendered the aforesaid judgment as follows: "The petition of plaintiff herein with respect represents that said plaintiff originally obtained judgment against the defendant herein before the honorable the sixth district court on the - - day of March, 1875; that said jUdgment was signed on the 6th <iay of March, 1875; that the same has not been paid in whole or in part, and is about to be prescribed by law; that your plaintiff is desirous of having such judgment revived by having citation issued to the defendant, as prescribed by article 3547 of the Civil Code of Louisiana: wherefore he prays that the defenclant be cited according to law, and, after due proceedings, that the said jUdgment be revived, as prescribed by article 8547 of the Civil Code, and plaintiffs pray for all general and equitable relief." Upon the said petition citation was issued, directed to Sampson Bros., New Orleans, La., lIB follows: .. ,"Sampson Brothers, New Orleans, La.: You are hereby 8um moned to comply with the demand contained in the petition of which a copy accompanies this citation, or deliver your answer to the same in the office of the clerk of the civil district court for the parish of Orleans, within ten. days after the 'enice hereof. . "Witness, thebonorable jUdges of the said court, this 20th day of January, in the year of our Lord 1885. [Signed]. "JAMES DAVIES, Deputy-Clerk." Upon the said citation the sheriff made return as follows: "Received January 28th, 1885, and on - - .-, after due and diligent search on inquiry, I was unable to find Sampson Brothers, defendants herein; was credibly informed they were out of the state of Louisiana, and reside in the state of Florida.· Returned January 30, 1885. [Signed] "E. A. MCINTYRE. Deputy-8heriff." On February 3, 1885, on the motion of attorney (or the plaintiff, suggesting the return, it was ordered by the court that Meyer Gutheim, Esq., be appointed cu,rator ad !we to represent said absent defendants. On February 11th said cu,rator ad hoe filed the following answer: "CIVIL DISTRIOT COURT-DIVISION D.
MitnheUand Rammelsw1'g Furniture Company vs. Sampson Brothers. "Now into court comes dfdt., through Meyer Gutheim, cur. ad hoo, and, acknOWledging service of the petition and citation herein, pleads a general deolal; wherefore he prays to be hence dismissed, with costs." II
Thereafter the civildistrict court for the parish of Orleans rendered the following judgment: II Mitchell and Rammelswrg Furniture Company vs. Sampson Brothers. "This cause came up this day for trial. Present, W. S. Benedict, for plaintiff, Meyer Gutheim, CU1'ator ad hoc, for defendants. Herein, after hearing pleadings, evidence, and counsel, the court considering the law and evidence to be in favor of plaintiff, it is ordered that there be judgment in favor of the Mitchell and Rammelsburg Furniture Company, herein represented by Robert Mitchell, liquidator, and against defendants, Sampson Brothers, and against F. G. Sampson and Chandler Sampson, the members of said firm, in solido, reviving the original jndgment herein rendered on the 1st, and signed on the 6th, of March, 1875; and, in accordance therewith, that the plaintiff do have and recover from defendants, in solido, the sum of seven thousand
v.45F.no 2-8
114
FEDERAL REPORTER,
vol. 45.
seven hundred and seventy-eight daHars; ($7.778.00,) with-eightper cent (8 %) interest per annum from the 1st of.Jannary. 1875, until paid, and allcost.'l of suit. JUdgment rendered March. 24;, ;1.885; judgment signed March 30,
lSe5. '..
.....'
[Sigl1ed]
"N. H. RIGHTOR, Judge."
On December 31,1875, Chandler Sampson and Frank G. Sampson, both of the city of New Orleans, parish of Orleans, state of Louisiana, e:ll::ecuted, by public act before a notary of said city, their joint and several power of attorney to George: A.Faunce,a copy of which is made part of these findings. On or about the 1st, day of January, 1875, the commercial firm of Sampson Bros., theretofore 'doing business in New Orlea.71s, was dissolved by agreement between ,the ,partners, Frank; G.and Chandler Sampson, and their place of business the partners themselvlilll1eaying the 'state, ,and in, the state of Florida. ,'" CONCLUSIONS OF LAW. .' ".. .
the the 8pihic>n: that judgment the tJ1e plaintiff 1 demand,with s costs. The judgment obtained in the sixth.districtcl:mrt of the parish of Orleans, state ,of LoUisiana;· 'against the firm of Sampson Bros. and' Frank G. SaIl)peon and, Chandler;. Sampson illj ,solido, having : rendereq,llpoIlanappea,ran.cEl a reputable counsel, was a valid ·and:binding judgment,'aod so remained under the laws of Louisiana for 10 years following its rendition.: -; ''.Fha proceedings oftheciviI district CO].lrt. in 1885, hereinb.efore reCited,: to revive' the said :judgrnent,as providedforbyarticle 3547 'ofthe Civil Code of Louisiana, were of no force andetrect against thede,fendan1l Frank Sampson,ibecause no' legal' citation was issued and s.erved uponhimj nor upon any legal representa;. tive· ofhis, as required .by the laWbfLouisiana. On· the, dissolution· of thefbm' 'Of Sampson Bros.; the dosing of' their bU'sinesspiace; and the removal of the partners from the state, the said firm ceased to exist, and the citation issuea and ditected tcdhe firm of Sampson Bros., and the appointment of a curator ad hoc for's8:id Sampson Bros. , if of any effect, had no binding force upon the individmils owhohad formerly composed v. Brenthe said firm. ,GaWn,!,-wv. ham, 1 La. Ann. 146; McCloskey v. Wtngfield, 29 La. Ann. 141. !tis ,therefore ordered, adjudged, and decreed, .that the plaintiff, the Mitchell & Rammelsburg Furniture Company, take nothing by this of the said suit; alld that the d.efelldant, Frank{?;.Sarnpson, costs herein to be taxed. plaintiff
l'·'
,i
:,
ME;LLOR,".. OOX.
UNITED STATES
v.
SMITH.
(Distrr.ct
Court, W. D. South CaroUna. February 5. 1891.)
INTlliRNAL REVENUE-RETAIL LIQUOR bEALER.
A practioing physician, living in the country, who, whfln he prescribes whisky for his patients, furnishes the liquor, himself, charging the usual price, without having p'aidthe special tax, is guilty of a violatio,n of Rev. 8t. U. S. § 3242, requiring payment of a special tax by all retailers of spirituous liquors.
Indictment for Carrying on the Business of Retail Liquor Dealer without having Paid the Special Tax. A. Lath/rrp, Dist. Atty., for the United States. M. F.,An8el, for defendant. SmONTON, J., (charging jury.) There is no dispute as to the main factS of'this case. The defendant, ,a practicing physician, living in the country; the habit, when he prescribes whisky for his patients, of furnishing the liquor himself, charging the usual price. He has not paid the special tax. The section (3242) of the Revised Statutes' requires lill'persons who retail spirituous liquors to pay a special tax. The chapter of which this section is a part makes two exceptions only ners who sell wine of their own growth at the place where it is made, and apqth,ecaries who use wines ,and spiritlious liquors exclusively in the prepat'ation or making up of medicines. Section 3246. No physician who haeno! paid the special tax keep on hand a supply of spiritlious liquor," imd sell it out to his patients, even if he does this in the way of prescription. An impression seems to prevail in many parts ofthedia-: trict tha:t the prescription justifiei!l the sale. This is error. The defend..; ant says thllt he did not know that he could not lawfully do this; This will D'ot'affect the question whether he has violated the section. You wilUirld himl guilty. .
MELLOR V.
Cox. January 19. 1891.)
1.
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AsS4tJLT ON BBAMAN.,...LuBILI'l'Y op, M:AllTER. ,
2. 84M£.
The master of a vessel is not liable for personal injuries inftiQt,edOl) Ilsea,mall']>Y the mate before the master could interfe.'e. . , , ·. " : , r ' . ' · " , .
Qna »1le1 b;y a Bllaman lIgainst the master for, personal injuries th4;l, m,aster denied the.tUlegatfonllof cruel treatment, whicb were testitled,tb by libelant anll other seamen ·onlY, There wall,no evidence of cruel treatment either before or after one tranl!al,ltfCln'mentionecl, t):lough the ,voyage was a long Ollll.·· The master, libelant. and vei8el*ere British. It appeared libelant saw a IJritish:consul at tM port .; where;:th4:l al:lltged orueltreatment occurred. bilt'IDade noeompIalDt;tbat.onarriv. lng alt):lls Jlort be saw tile con"suJ,' a,J;Jd<:ompIained of the ,mate." only;. that ill ap,]r&-.,' ',V,tous. am.t lie' clairi1ed' hill' dISCh,arg!'bjr reast>n at nothing Of' bad libelwW:ldbe dismissed;. " " , , '" ';,',
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