Rosenthal v. Rosenthal

• Decision Date: 29 October 1906
• Docket Number: 16,264
• Citation: 117 La. 786,42 So. 270
• Court: Louisiana Supreme Court
• Parties: ROSENTHAL v. ROSENTHAL

42 So. 270

117 La. 786

ROSENTHAL v. ROSENTHAL

No. 16,264

Supreme Court of Louisiana

October 29, 1906

Rehearing Denied November 12, 1906.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by Carrie Meyers Rosenthal against Solomon Rosenthal. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin Rice Forman, for appellant.

John Curd Wickliffe, for appellee.

OPINION

NICHOLLS J.

Statement of the Case.

The plaintiff's suit, filed on the 29th of May, 1906, is to obtain (for causes assigned) a judgment of separation from bed and board from her husband.

In the body of the petition she averred that her husband was earning a salary of $ 100 per month; that she was absolutely without property or means for the support of herself or their son Joseph Rosenthal. She prayed that the court authorize her to bring this suit and stand in judgment; that the residence of her mother, Mrs. Regina Meyers, No. 2315 Carondelet street, in the city of New Orleans, be assigned her as a residence during the pendency of this litigation; that pending the litigation she be given the custody and control of her son, Joseph Rosenthal; that her husband, Solomon Rosenthal, be ordered to pay her the sum of $ 40 per month of alimony for the support of herself and her son during the pendency of the suit.

Upon the filing of this petition the court rendered an order authorizing the plaintiff to bring the suit and assigning the residence of Mrs. Regina Meyers, 2315 Carondelet street, New Orleans, as that of the plaintiff during the pendency of the suit, and giving to her, pending the same, the custody and care of her son. The court further ordered that the defendant do appear on the 8th day of June, 1906, to show cause, if any he had or can, why he should not be ordered to pay to the plaintiff the sum of $ 40 per month alimony during the pendency of the suit.

Service of this petition and order were made upon the defendant in person on the 2d of June, 1906.

On June 8th the court rendered judgment as follows:

"The rule for alimony herein filed came on this day. Present: Col. John C. Wickliffe, attorney for plaintiff, and J. Sinai, representing Mr. Bruen, reported sick. And, after hearing counsel and pleadings, for reasons orally assigned, it is ordered that defendant, Solomon Rosenthal, be ordered to pay to Mrs. Carrie Rosenthal alimony at the rate of forty dollars ($ 40.00) per month from June 1, 1906, until further orders of the court.

"Judgment read and rendered in open court June 8, 1906. Judgment signed in open court June 14, 1906."

On the 19th of June, 1906, defendant applied for and obtained an order for a suspensive appeal to the Supreme Court.

He made no application for a new trial.

There are no bills of exception in the record, and no assignment of errors.

Opinion.

It would appear from appellant's brief that the grounds on which he relies for reversal are:

First. That the case was not ripe for default, and no answer had been filed by appellant to the petition.

Second. That Mr. Bruen, attorney for defendant, was reported sick.

Third. That there was no allegation or proof that plaintiff had continuously resided in the house appointed by the judge as her residence, and no proof in the record as to the means of the husband.

The deputy clerk of the civil district court for the parish of Orleans certifies on a printed form that the "foregoing ten pages contain a true and complete transcript of all the proceedings had, documents filed, and evidence adduced upon the trial of the cause."

There is no testimony copied in the record and no note of evidence. In this condition of the record defendant insists that the court rendered judgment without any evidence before it. His counsel refers the court to Suberville v. Adams, 46 La.Ann. 125, 14 So. 518, and Ellerbusch v. Kogel, 108 La. 52, 32 So. 191.

Plaintiff, on the other hand, submits the following propositions, which she maintains are sustained by the authorities which are cited:

"A judgment must be presumed to have been rendered on proper evidence. So, where execution is ordered in the name of a foreign executor, it will be presumed that there was due proof that the will had been probated and made executory here. Dangerfield v. Thruston, 8 Mart. (N.S.) 236.

"The evidence on which the judgment is based, if not before the court, will be presumed to have authorized it. Davock v. Darcy, 6 Rob. 342.

"The Supreme Court will presume that the evidence, with which it is not furnished and upon which the judgment complained of was rendered, authorized it. Miller v. Whittier, 6 La. 72.

"When the transcript of appeal contains no evidence, it will be presumed that the court acted upon proper evidence. State v. Nicol & Bowman, 30 La.Ann. 629.

"When there is no evidence, the presumption is that the court rendered judgment on sufficient evidence. Nugent v. Stark, 34 La.Ann. 628; Simmons v. Howard, 23 La.Ann. 504; Bank v. Bringier, 22 La.Ann. 118; Smith v. City, 24 La.Ann. 20; State v. De Monasterio, 26 La.Ann. 734; Succession of Pilcher, 39 La.Ann. 362, 1 So. 929; Succession of Moore, 42 La.Ann. 332, 7 So. 561."

We find no force in the first and second grounds which defendant urges for reversal of the judgment. We know of no law, and see no good reason, for postponing consideration of plaintiff's application to be given alimony. It is not part of plaintiff's demand, but a mere incidental motion connected with it, which from its nature and character requires prompt action. If there existed any good ground by the defendant for not taking up the rule for trial on the day fixed, then application should have been made for a continuance. Defendant was content to have Mr. Sinai, who is a member of the bar, represent his interests on the trial, and he has not repudiated his authority to do so. He failed to declare any injury or wrong in a motion for a new trial, when the court could have afforded him quick relief to hold back action thereon, to plaintiff's detriment, until it could be tardily reached after an appeal. As the application for alimony was made in and simultaneously with the petition, applicant could not have made the allegation which appellant urges she should have made.

The third objection, in view of the recitals of the clerk's certificate, is more serious; but we have reached the conclusion that it, also, is insufficient.

Defendant's position is that, the deputy clerk having certified that "the transcript filed contained all the evidence adduced on the trial of the case," and the transcript containing the copy of no evidence whatever, the necessary conclusion from these two facts, ex vi terminorum, was that there was no testimony taken on the trial.

In Starke v. Bossier, 19 La.Ann. 180, this court said:

"The clerk is a ministerial officer, whose duty and power are well defined by law.

"After the appeal has been allowed and the surety given, the clerk of the court from whose judgment the appeal is taken shall make a transcript of all the proceedings, as well as of all the documents filed in the suit, and annex the same to the petition of appeal, in order that the same may be delivered to the appellant when demanded. Code Prac. art. 585.

"The clerk is then to copy all the proceedings and all the documents as he finds them in the suit, without adding or subscribing from them a single word. His duty was to copy the notes as they were filed, without making any remarks creating negative or affirmative evidence for either of the parties. Had the judge below stated in his judgment that the notes were not stamped as required by law, and dismissed the suit on that ground, it would be no evidence before us of that fact, as is well settled in our...