Statement of the Case.
The opinion of the court was delivered by
Nicholls, C. J.
The plaintiff alleged that it had, on the 20th of December, 1899, purchased through its agent, from the, defendant, certain described property, situated in the Parish of Vernon, aggregating about 3064 acres more or less. That the agreed consideration for the purchase of said lands was $11,932.32, and that said consideration was to be paid cash to the said Elms upon execution of proper deed, and provided his title to said land was good and valid. That on December 21, 1899, the said Elms notified petitioner in writing, in said capacity, that he would not make title to the land and that he intended to sell to some one else.
That, thereupon, petitioner made due and legal demand on December 21, 1899, in writing, for transfer of the lands in accordance with the previous purchase, and, in reply thereto, petitioner received a letter from said Elms, refusing to make said transfer, said letters being annexed for reference.
That petitioner had plats checked by the said Elms showing a description of the property and other written memoranda as to the acreage, and various prices for different portions of the land and total aggregate of the purchase price, but through a superabundance of caution deemed it proper to address interrogatories on facts and articles to the said Elms, to be answered in the manner provided by law. That on the 23rd day of December, 1899, the said Elms informed the attorneys of petitioner that he would not deed the land to him, hence petitioner averred that no formal tender was necessary.
That petitioner purchased the above described property for the con[152]*152sideration of $11,932.32 to be paid cash, which he was ready and willing to do upon the execution of proper transfers of the property, with good and valid title, and he verily feared that the defendant, Elms, would take advantage of the fact that he had not executed acts of sale for said property to petitioner, and sell or dispose of it to some one else during the pendency of this suit, to the great and irreparable injury and damage of petitioner.
That petitioner was entitled to the issuance of a writ of injunction, prohibiting the said Elms from selling or disposing of the properly hereinbefore described during the pendency of this suit. That he was', also, entitled to have interrogatories on facts and articles annexed, answered on oath and categorically.
The premises considered, petitioner prayed that a writ of injunction issue, restraining and prohibiting the said Oharles S. Elms from selling or disposing of the property described during the pendency of the suit. That the interrogatories on facts and articles annexed should be answered on oath and categorically at such time as might be fixed, or upon his failure so to do, the facts concerning which he should have so refused and neglected to answer, should be taken as confessed.
That he might be duly cited; and after legal delays and due proceedings that petitioner do have and recover judgment maintaining the writ of injunction sued out and commanding and ordering the said Elms to execute and deliver to petitioner, within a reasonable time after the rendition of said judgment, good and valid title to the property hereinbefore diescyibed upon Ipayment off the purchase price thereof.
An injunction issued as prayed for, and the defendant was ordered to answer, in open court, the interrogatories on facts and articles propounded on the second day of the next session of court.
The interrogatories propounded were:
1st. — Whether he did not on the 20th of December, 1899, sell to the plaintiff through their agent, Michael Kelly, for cash, the land described in the petition ?
2nd. — Was not the aggregate of the purchase price thereof $11,-932.32?
3rd. — Were not 2919 30-100 acres sold to said company at $4 per acre, and 41 91-100 acres at $3.50, and 203 39-100 acres at $2.50 per acre?
4th. — Have you not refused to execute and deliver proper and sufficient title thereof to said company ?
[153]*1535th. — Have you not attempted to sell this land to some one else, and for a greater sum to your profit, net ?
Plaintiff filed an amended petition, in which it alleged that the company was a partnership association, limited, organized under the laws of Michigan, and that Michael Kelly was at the time of the filing of the petition and was still, a partner in said association. That said Kelly was the agent of said partnership association at the time of the petition, and that at said time there was no other member of said association, or agent therefor, in the State of Louisiana.
That the defendant sold the property described in the original petition on the 20th day of December, 1899, by his written proposition to that effect, which was accepted by the plaintiff company as embodied in the eight plats, and the copy of the letter which it attached and made part of its amended petition. That the prices asked for the defendant properties by the defendant and agreed to by the plaintiff were a» given in the statement, embodied in this supplemental petition. That said plats, upon which were checked the description of the land sold to the plaintiff, together with the prices thereon, were delivered by the defendant to Michael Kelly as agent of the plaintiff on the 20th of December, 1899, and said checks and prices were in the handwriting of the defendant and contained a complete and full description together with the prices of the land purchased by the plaintiff. The plaintiff annexed to this petition interrogatories on facts and articles which it prayed the defendant might be ordered to answer in open court, or, in default thereof, that they be taken for confessed. Defendant was ordered to answer the interrogatories in open court.
The interrogatories propounded were: 1st. — Is not the checking in blue pencil, together with the prices appearing in the eight township maps attached to the supplemental petition, in your handwriting? 2nd. — Were not these checks and prices made by you? 3rd. — Did you not deliver said eight township maps to Michael Kelly in the presence of Chester Brown at about 6 o’clock P. M. December 20th? 4th.— Did you not receive a letter from Messrs. Pujo & Moss of date December 21st, a copy of which was annexed to the supplemental petition? 5th. — Did you not telegraph, on December 20th, 1899, to Mr. Ernest Wesche or J. D. Lacy, of New Orleans, that you had sold the land described in said plats to Wright-Blodgett & Co. or to Mr. Michael Kelly?' If you say you did not, attach original or copy of telegram ceut to said party concerning the lands in dispute. 6'th. — Did you not, [154]*154when the plats wore delivered to Mr. Kelly, in presence of Mr. Chester Brown, say: “Here are the descriptions and the prices; the lands are yours”- — or words to that effect? 7th. — Did you not write or have written and signed the letter of date December 21st, 1899, addressed to Mr. M. Kelly, agent of the Wright-BIodgett Co., attached to the supplemental petition?
The plaintiff excepted to answering the interrogatories on facts and articles on the ground that plaintiffs “were not in possession nor pretend to have ever been in possession of the lands to which they advert.”
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Statement of the Case.
The opinion of the court was delivered by
Nicholls, C. J.
The plaintiff alleged that it had, on the 20th of December, 1899, purchased through its agent, from the, defendant, certain described property, situated in the Parish of Vernon, aggregating about 3064 acres more or less. That the agreed consideration for the purchase of said lands was $11,932.32, and that said consideration was to be paid cash to the said Elms upon execution of proper deed, and provided his title to said land was good and valid. That on December 21, 1899, the said Elms notified petitioner in writing, in said capacity, that he would not make title to the land and that he intended to sell to some one else.
That, thereupon, petitioner made due and legal demand on December 21, 1899, in writing, for transfer of the lands in accordance with the previous purchase, and, in reply thereto, petitioner received a letter from said Elms, refusing to make said transfer, said letters being annexed for reference.
That petitioner had plats checked by the said Elms showing a description of the property and other written memoranda as to the acreage, and various prices for different portions of the land and total aggregate of the purchase price, but through a superabundance of caution deemed it proper to address interrogatories on facts and articles to the said Elms, to be answered in the manner provided by law. That on the 23rd day of December, 1899, the said Elms informed the attorneys of petitioner that he would not deed the land to him, hence petitioner averred that no formal tender was necessary.
That petitioner purchased the above described property for the con[152]*152sideration of $11,932.32 to be paid cash, which he was ready and willing to do upon the execution of proper transfers of the property, with good and valid title, and he verily feared that the defendant, Elms, would take advantage of the fact that he had not executed acts of sale for said property to petitioner, and sell or dispose of it to some one else during the pendency of this suit, to the great and irreparable injury and damage of petitioner.
That petitioner was entitled to the issuance of a writ of injunction, prohibiting the said Elms from selling or disposing of the properly hereinbefore described during the pendency of this suit. That he was', also, entitled to have interrogatories on facts and articles annexed, answered on oath and categorically.
The premises considered, petitioner prayed that a writ of injunction issue, restraining and prohibiting the said Oharles S. Elms from selling or disposing of the property described during the pendency of the suit. That the interrogatories on facts and articles annexed should be answered on oath and categorically at such time as might be fixed, or upon his failure so to do, the facts concerning which he should have so refused and neglected to answer, should be taken as confessed.
That he might be duly cited; and after legal delays and due proceedings that petitioner do have and recover judgment maintaining the writ of injunction sued out and commanding and ordering the said Elms to execute and deliver to petitioner, within a reasonable time after the rendition of said judgment, good and valid title to the property hereinbefore diescyibed upon Ipayment off the purchase price thereof.
An injunction issued as prayed for, and the defendant was ordered to answer, in open court, the interrogatories on facts and articles propounded on the second day of the next session of court.
The interrogatories propounded were:
1st. — Whether he did not on the 20th of December, 1899, sell to the plaintiff through their agent, Michael Kelly, for cash, the land described in the petition ?
2nd. — Was not the aggregate of the purchase price thereof $11,-932.32?
3rd. — Were not 2919 30-100 acres sold to said company at $4 per acre, and 41 91-100 acres at $3.50, and 203 39-100 acres at $2.50 per acre?
4th. — Have you not refused to execute and deliver proper and sufficient title thereof to said company ?
[153]*1535th. — Have you not attempted to sell this land to some one else, and for a greater sum to your profit, net ?
Plaintiff filed an amended petition, in which it alleged that the company was a partnership association, limited, organized under the laws of Michigan, and that Michael Kelly was at the time of the filing of the petition and was still, a partner in said association. That said Kelly was the agent of said partnership association at the time of the petition, and that at said time there was no other member of said association, or agent therefor, in the State of Louisiana.
That the defendant sold the property described in the original petition on the 20th day of December, 1899, by his written proposition to that effect, which was accepted by the plaintiff company as embodied in the eight plats, and the copy of the letter which it attached and made part of its amended petition. That the prices asked for the defendant properties by the defendant and agreed to by the plaintiff were a» given in the statement, embodied in this supplemental petition. That said plats, upon which were checked the description of the land sold to the plaintiff, together with the prices thereon, were delivered by the defendant to Michael Kelly as agent of the plaintiff on the 20th of December, 1899, and said checks and prices were in the handwriting of the defendant and contained a complete and full description together with the prices of the land purchased by the plaintiff. The plaintiff annexed to this petition interrogatories on facts and articles which it prayed the defendant might be ordered to answer in open court, or, in default thereof, that they be taken for confessed. Defendant was ordered to answer the interrogatories in open court.
The interrogatories propounded were: 1st. — Is not the checking in blue pencil, together with the prices appearing in the eight township maps attached to the supplemental petition, in your handwriting? 2nd. — Were not these checks and prices made by you? 3rd. — Did you not deliver said eight township maps to Michael Kelly in the presence of Chester Brown at about 6 o’clock P. M. December 20th? 4th.— Did you not receive a letter from Messrs. Pujo & Moss of date December 21st, a copy of which was annexed to the supplemental petition? 5th. — Did you not telegraph, on December 20th, 1899, to Mr. Ernest Wesche or J. D. Lacy, of New Orleans, that you had sold the land described in said plats to Wright-Blodgett & Co. or to Mr. Michael Kelly?' If you say you did not, attach original or copy of telegram ceut to said party concerning the lands in dispute. 6'th. — Did you not, [154]*154when the plats wore delivered to Mr. Kelly, in presence of Mr. Chester Brown, say: “Here are the descriptions and the prices; the lands are yours”- — or words to that effect? 7th. — Did you not write or have written and signed the letter of date December 21st, 1899, addressed to Mr. M. Kelly, agent of the Wright-BIodgett Co., attached to the supplemental petition?
The plaintiff excepted to answering the interrogatories on facts and articles on the ground that plaintiffs “were not in possession nor pretend to have ever been in possession of the lands to which they advert.”
The court overruled the exception, and the plaintiff, under the reservation of the exception, answered as follows:
To the original inten'Ogatories.
Answer to 1st interrogatory. No.
Answer to 2nd interrogatory. As there was no definite sale between Mr. Kelly and myself, I did not aggregate his prices which I was consid< ring and which I expected to. accept' in the event of Mr. Underwood not accepting the land.
Answer to 3rd interrogatory. As’there was no definite sale between Mr. Kelly and myself, I did not aggregate the acreage sold at different prices.
Answer to 4th interrogatory. Tes.
Answer to 5th interrogatory. Tes; for I considered the lands sold to Mr. Underwood for a greater price than Mr. Kelly offered me.
Answers to supplemental inteiTOgatories.
To 1st interrogatory. Tes.
To 2nd interrogatory. Tes; they simply reduced to writing Mr. Kelly’s offer for the land.
To 3rd interrogatory. Tes.
To 4th interrogatory. I did.
To 5th interrogatory. I did not. (Here witness offered ten telegrams and answers.)
To 6th interrogatory. I did not.
To 7th interrogatory. I did.
Plaintiff suggesting that defendant’s answers to interrogatories 2 and 3, annexed to the original petition, had not been answered categorically; that the answers were evasive, insufficient and not responsive, prayed that they might be taken for confessed.
[155]*155The court ordered the answers to be struck out, but refused to have the interrogatories taken for confessed.
The defendant answered, pleading first the general issue. He then alleged that the injunction which had issued was wrongfully, libelously and maliciously, sued out; that it was obtained without ground in law or equity, and it should be set aside. He prayed that it be dissolved, with damages, in the sum of nine thousand dollars, for which he asked judgment in reconvention. This claim in reconvention was subsequently discontinued under reservation of defendant’s right to sue for the same in another action.
The injunction was dissolved by judgment of court on the 14th of January, 1900.
J. Platt Underwood, whose name was mentioned in the interrogatories on facts, filed an intervention, joining the defendant in his prayer to have the injunction set aside; but he discontinued the same before the case went to trial. In his petition he claimed that on the 20th of November, 1899, the defendant had given authority until the 6th of December, 1899, to T. D. Lacy & Co., brokers, in New Orleans, to sell these lands. That the authority to sell had been extended to December 20, 1899. That on this last date, and before the expiration of the authority conferred upon them, Lacy & Co. agreed to sell the lands to him. That he had caused the evidence of this agreed sale to be properly and duly recorded, but the formal deeds of sale had not yet been executed by reason of defendant’s injunction; but he had demanded of the defendant that deeds should be executed. He denied that the defendant had ever sold the lands to the plaintiff company; but if he had, the sale would have no effect as against his recorded claims, as no evidence of said sale from the defendant to the plaintiff had been recorded. He prayed that the plaintiff’s demand be rejected.
The District Court dissolved the injunction, rejected plaintiff’s demand, and dismissed his suit with costs. The plaintiff appealed under an order of appeal granted by the clerk of court in the absence of the district judge.
The defendant moved to dismiss the appeal on the ground that no return day had been fixed by any officer authorized and empowered to £x the same. That the order of the clerk of court fixing the 14th day of January, 1901, for the return day of said appeal was null,, void and of no effect, because the right power and authority to fix the return day of an appeal from the District Court from the Parish of Calca[156]*156sieu vas vested solely in the judge of the Fifteenth Judicial District Court. That it was at suggestion of counsel for plaintiff and appellant that the clerk fixed the day. In the' event this ground be deemed insufficient, defendant moved, as another ground for dismissal, that the appeal bond filed by. the appellant was not signed by a surety competent to sign the same; that it was patent on the record that W. J. Martin, who signed said bond as surety, was not in law a competent surety because he was surety on the injunction bond, and the injunction was dissolved.
Opinion.
On Motion to Dismiss.
The motion is denied. The second ground assigned has not been urged, and the first is not well grounded. The district clerk had authority to fix the return day.