Louisiana Society for the Prevention of Cruelty To Children v. Moody

• Decision Date: 01 June 1900
• Docket Number: 13,330
• Court: Louisiana Supreme Court
• Parties: LOUISIANA SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN v. THOMAS C. MOODY

28 So. 224

52 La.Ann. 1815

LOUISIANA SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN v. THOMAS C. MOODY

No. 13,330

Supreme Court of Louisiana

June 1, 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Ellis, J.

F Rivers Richardson, for Plaintiff, Appellant.

Clegg &amp Quintero for Defendant, Appellee.

BLANCHARD J. MONROE, J., dissents. WATKINS, J., takes no part -- absent on account of illness.

OPINION

BLANCHARD, J.

Act 40 of 1892 makes it a felony to detain in, or inveigle or entice into, a house of ill-fame, or assignation, a female under the age of sixteen years.

Defendant was charged with having violated this law, was arrested and arraigned before the Second Recorder's Court of the Parish of Orleans. He applied to be admitted to bail and was released from custody on a bond of $ 500.

He was subsequently called for trial upon preliminary examination and failed to respond. Whereupon, in due course, his bail was regularly forfeited.

The prosecution of the defendant was instituted and conducted by the plaintiff corporation, and the latter thus became entitled to recover, in its name, the amount of the forfeited appearance bond. Act 32 of 1892; Act 60 of 1894.

The present action was, accordingly, brought by it against the surety on the bond. The allegation is made that the whereabouts of the principal, Thomas C. Moody, are unknown.

The surety pleaded an exception of res judicata and estoppel, founded upon a previous suit on the bond which had been dismissed on plea to the jurisdiction.

The exception of res judicata was sustained and the suit dismissed.

An appeal by plaintiff to the Court of Appeals for the Parish of Orleans followed.

That tribunal reversed the judgment and remanded the cause for further proceedings in due course.

Whereupon the surety pleaded the unconstitutionality of Act No. 32 of 1892 and Act No. 60 of 1894, which acts give the present plaintiff a right of action on the bond.

This defense was sustained and judgment of dismissal of the suit entered up in favor of the defendant.

The appeal here followed.

The amount of the bond, for the recovery of which the suit is brought, is far below the minimum jurisdictional limit of this court, but Article 85 of the Constitution of 1898 vests the court with jurisdiction of all cases wherein a law of the State has been declared unconstitutional, and this without regard to the moneyed demand of the action.

With other defenses raised, this court has naught to do. It can concern itself only with the single question: Is the decision of the court a qua, declaring the Acts of 1892 and 1894, supra, unconstitutional, correct?

As to other issues raised and determined in a case involving $ 500, the appropriate appellate tribunal is the Court of Appeals.

The Constitutional Convention thought it wise to lodge in this court the right of immediate review of any judgment by any court decreeing a statute of the State, or an ordinance of a municipal corporation, unconstitutional. This is new; it is not in the preceding constitution -- that of 1879.

But the words which follow, also found in the Constitution of 1879, "and in such cases the appeal on the law and the facts shall be directly from the court in which the case originated to the Supreme Court", are not construed as intending to give this court the right to pass judgment upon, and finally decide, other issues raised in cases where the amount involved is $ 2,000, or less, and passed upon by the court of the first instance.

This court has jurisdiction of "the law and the facts", within the meaning of the constitution, in so far only as may be necessary to pass upon the constitutional question raised.

In the approach to the consideration of this constitutional question a barrier is suddenly encountered. It is this:

While the suit is against the surety on the appearance bond, while he is apparently the only defendant, while the principal on the bond could not be reached by citation -- his domicil not being in the State (testimony of Clegg) and his whereabouts unknown -- it appears from the evidence that the principal, Thomas C. Moody, through his father, deposited with the counsel who defends this cause a sum of money sufficient to protect the surety from loss, and that the surety signed the appearance bond at the request of counsel for Moody.

The surety, then, thus protected from liability or loss, has no real interest in the result of the case. He is nominally only the defendant.

The real defendant is the principal on the bond, and the real security of the bond is the money of the principal on deposit in the hands of his counsel to await the determination of the cause. What the amount thus deposited is, is not shown, but the answer of counsel, on the stand as a witness, to the question: "Do you know how the surety is secured from liability," was: "Of course I do, the money was deposited with me by Dr. Moody, the father of the young man, to secure the surety from loss."

From this we are warranted in assuming the amount will suffice to cover the judgment, including interest and costs, should the surety be cast.

The defenses, then, urged in bar of plaintiff's recovery are really...