School Board of East Carroll Parish vs. School Board of Union Parish. No. 1108. SCHOOL BOARD OF EAST CARROLL PARISH VS. SCHOOL BOARD OF UNION PARISH. A school board organized according to law has a right to stand in court to claim from an other school board likewise constituted, school funds which should have been paid to it by the State authorities and which were illegally paid out to the latter. A receipt therefor would exonerate the debtor board, If the funds are not in kind in the possession of such board, but can be traced to property in which they have been invested by such board, the property itself can be recovered in place of the funds which it represents. An action to recover under such circumstances is not barred by the prescription of five years or less. A PPEAL from the Third District Court, Parish of Union. W. R. Rutland for Plaintiff and Appellant. A. Barksdale for Defendant and Appellee. The opinion of the Court was delivered by BERMUDEZ, C. J. This is an action for the recovery of $4440 93, as illegally paid to and received by the defendants and invested by them in a lot and building, or school house thereons The defense by way of exception is: that the plaintiffs have no right of action and, therefore, no standing in court, and that the claim is barred by prescription. From a judgment sustaining those defences this appeal is taken. I. From the averments of the petition, which must be taken for true for the purpose of the exceptions, it appears that the State Treasurer, on warrants of the Auditor, has at different times paid to the defendants various amounts, aggregating $4440 93, as the interest on the free school fund due township 19 north, range 13 east, under Act of Congress of February 15, 1843, and Acts of the Legislature 321 of 1855, and 182 of 1857, on a credit of $13,396 81; that the annual interest on this fund is $833 80, whereof $556 20 has been annually paid to the defendant for eight years, aggregating the sum of $4440 93, while the difference, $277 60, has been annually paid to plaintiffs; that the whole of the interest, $833 80, should have been paid to the plaintiffs, for the reason that township 19 north, range 13 east, is in East Carroll and not in Union parish; that the apportionment and distribution of the School Board of East Carroll Parish vs. School Board of Union Parish. school fund has to be made on that basis; that the defendants, when they drew and received those various amounts, knew that they did not accrue to them and have used the same for the purchase of a lot and the construction thereon of a school house, at a cost of $3712 09; that there remains in the hands of defendants a balance of $672 84. In order to ascertain whether the plaintiffs have a right of action, it is only necessary to inquire whether a payment to them would dis charge the defendants. There can be no doubt, under the averments, that the money was plaintiffs' property in the hands of the State, as a fiduciary; that if the money, instead of having been paid to the defendants had been paid to the plaintiffs, the payment would have been a valid one and the State would have been released pro tanto. It is evident that if the defendants were to return the money to the State and the latter was to pay it over to the plaintiffs, both the defendants and the State would be discharged from responsibility as to it. Now, if instead of paying it in this circuitous mode, the defendants were to pay it to the plaintiffs, there can be no doubt they would likewise cease to be liable for it. A receipt from plaintiff's would, therefore, exonerate the defendants. This circumstance suffices to give them the right to claim judicially what is due them. If the allegations of the petition be true, then it follows that the defendants have knowingly and, therefore, wrongfully received funds which did not accrue to them, but which should have been paid over to plaintiffs. Such being the case, the petition itself discloses a cause of action and, on proof, the plaintiffs are entitled to recover the money or the property, to which it has been traced, with which it is identified and which represents the fund. II. The next defense is that of prescription. This is not a suit in damages for a tort. It is an action to recover, in integrum, money or the property representing it, which is in the precarious possession of the defendants in a fiduciary capacity and not as owners, with the averred knowledge that it does not belong to them, but to plaintiffs. The defendants hold as the agents or representatives of the plaintiffs, and if prescription can be pleaded at all, they cannot plead that which was set up, which was: one, two, three and five years. It is, therefore, ordered and decreed that the judgment appealed from be reversed. It is now ordered and decreed that the exceptions filed Bryant vs. Austin. be overruled and that the case be remanded to the lower court for further proceedings according to law, and that defendants pay costs of appeal; the costs of the lower court to abide the final decision of the canse. No. 1117. M. L. BRYANT vs. E. S. AUSTIN, EXECUTOR. The Supreme Court has jurisdiction of an action for the nullity of a judgment of divorc‹, although no pecuniary amount is in dispute. A judgment of divorce obtained by one of the spouses against the other, who is absent from the State, will be annulled if the party who has obtained it has used fraud or ill practices. PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J. A R. Ray, D. C. Morgan and B. W. Johnson for Plaintiff and Appellee. Stubbs & Russell for Executor, Appellant. C. H. Trousdale for Absent Heirs, Appellant. MOTION TO DISMISS. The opinion of the Court was delivered by POCHÉ, J. Plaintiff brings this suit for the nullity of a judgment of divorce rendered in favor of her husband, since deceased. As appellee she moves for the dismissal of this appeal on the ground of our want of jurisdiction ratione materiae. Her contention is that the pleadings disclose no pecuniary amount in dispute and that this is not a suit for divorce or separation from bed and board. It cannot be denied that under the terms of the Constitution, this Court has jurisdiction of an appeal from a judgment of divorce. Now, an appeal is one of the modes of revising or reversing a judgment. And an action of nullity is another mode. C. P. Art. 556. If the Supreme Court has jurisdiction by appeal over an action for divorce, it is difficult to conceive by what process of reasoning the same court could be deprived of jurisdiction over an appeal from an action for the nullity of a judgment on the same cause of action. We hold that this Court has jurisdiction in the premises, and hence, the motion to dismiss is denied. ON THE MERITS. The grounds of nullity urged by plaintiff are substantially that the judgment was obtained by her late husband by fraud and other ill practices. Bryant vs. Austin. The record contains a considerable mass of irrelevant testimony, and contains several bills of exception levelled at the admission of a great part of the same. The undisputed relevant facts of the controversy are as follows: Plaintiff was married to the late M. M. Bryant, who was then a resident of the parish of Ouachita, Louisiana, in March, 1868, in Camden, Arkansas, the place of her residence. A short time thereafter the husband returned to Louisiana, leaving his wife in Camden, whence she came to join him in March following. He was a mechanic whose occupation, on different plantations, allowed him little or no opportunity to remain at home. His wife remained with him nine months; at the end of which time, with the consent of her husband, she returned to her former home, with the understanding that she would return to Louisiana as soon as her husband wished it, or as soon as he could provide a suitable home for her. In May, 1871, at his request, she came back but remained only a few days, as her husband had not yet procured a home, and as he requested that she would go back to Camden and remain there until he could make proper arrangements for their living together. During the time of their separation they corresponded together until September, 1878, when the husband ceased writing. In November, 1878, he filed his suit for separation against his wife, on the ground of abandonment, which culminated in a final judgment of divorce, in October, 1880. In his petition he alleged that his wife, who had abandoned the matrimonial domicile, was absent from this State and to the best of his information, she was living in the State of Arkansas. The proceedings were carried on contradictorily with an attorney appointed by the court to represent the absent wife, and all the requirements of process were complied with. But the wife was not informed of the proceedings, and had no knowledge of the suit or judgment until October, 1882, at the same time that she heard of her husband's death. The attorney of the absentee, immediately after his appointment, inquired of the husband, Bryant, for the address of his wife, and he was informed that she was somewhere in Arkansas, her precise locality being unknown to Bryant, as he stated. The record shows, to our entire satisfaction, that Bryant knew perfectly well, that his wife was then, as she had always been since 1871, in Camden, where he had married her, and where he had left her in March, 1868, whence she had come Bryant vs. Austin. to him in March, 1869, where she returned in December, 1869—where she had remained until 1871, in May, at which time she had come back to this place to live with him; to which place she had returned in obedience to his wish and his advice and to which place he had directed his letters to her until September, 1878, only two months before the institution of his suit for divorce. With this knowledge he designedly omitted to inform his own attorney of the place where she was sojourning, and for the same purpose he refused to give correct information to the attorney of the absentee. The evidence shows conclusively that his wife had the one great and constant desire to settle down and live with him as his wife. His letters to her show that in her letters she was constantly and persistently pressing and urging him to make the necessary arrangements to that end--and he would invariably detail numerous reasons for an indefinite postponement of the project of their reunion. Avowedly he had no complaint to make of her conduct or of her character, for he said of her to one or two of his few intimate friends that she was "a nice little woman." But he evidently regretted his marriage with her, and the study of his life was to devise a plan to forsake and abandon her. His object, in the suit for separation, was to make sure, in his own language, that she would get none of his property. Our reference to these facts is not with a view to revise the judgment of separation on its merits, but merely to define his animus in practicing the deceit which he used towards the attorney of the absentee. Had he informed the latter of the exact locality of his wife as he knew full well, the attorney would at once have corresponded with her and his whole plan would thus have been thwarted and defeated. We do not mean to exonerate the attorney of his neglect in not continuing his researches for the place where the wife could be reached. But we *do hold, under the evidence, that the information given him by Bryant, that his wife was somewhere in Arkansas, he did not know where, was the determining reason of the attorney's supineness in the premises. Under the textual provisions of our law "a definitive judgment will be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it has been rendered." C. P. Art. 607. Marriage is a contract highly favored by our laws, with which it has been wisely shielded by provisions which cannot warrant or sanction attacks of a fraudulent character on an institution which is the very basis of society and of all well regulated governments. |