O. Chisholm, was appointed receiver of said partnership, without notice of any kind to the relator; and that, as soon as relator was informed of said appointment, he filed a motion for a new trial and a petition of intervention, and prayed that the judge below reopen the proceedings so that the relator might be represented and heard on the question of the necessity for the appointment of another receiver, and upon the question of the selection of a suitable person to fill said position. The relator further represents that, on the hearing of said motion and intervention, Michael Mitchell filed a plea of res adjudicata based on the order or judgment of July 9, 1913, by which the said Danziger was appointed, which plea the judge below sustained, and refused to hear evidence offered by the relator to prove that the financial condition of said partnership, in relation to said contract, had so changed or improved that there was no further need of a receiver. Relator after setting forth reasons why the receivership should be terminated, and, if not, why Michael Mitchell should not be appointed receiver, further represents that, within ten days from the date of the order appointing Mitchell receiver, he petitioned for a suspensive appeal therefrom, but that the judge below refused to grant him an appeal of any kind. Wherefore relator prays for a writ of prohibition restraining said judge from proceeding any further in the receivership of said partnership, and from granting or issuing any orders or judgments therein, until the further orders of this court, and after due proceedings had for a writ of mandamus commanding said judge to grant to the relator a suspensive appeal as prayed for by him. The respondent judge in his answer avers that the relator, in the proceedings leading up to the appointment of Danziger, as re ceiver, admitted the necessity of such appointment; that Danziger qualified as re ceiver and continued the work as contemplated under the contract with the sewerage and water board until his disappearance on December 23, 1913; that on December 26, 1913, Michael Mitchell, the estate of Borne, through its legal representatives, and John O. Chisholm petitioned the civil district court, alleging the absence of Danziger and his abandonment of the work, and, the work being public in character and admitting of no delay in its execution, your respondent, after hearing and being satisfied of the abandonment thereof and disappearance of Danziger, entered judgment removing him from office as receiver, and appointing Michael Mitchell as receiver, vice Danziger, former receiver, who had absconded. judgment of the court rendered in July, 1913. Relator was a party to these proceedings, and in his answer prayed for the appointment of a certain person as receiver with full power to carry out the contract of the partnership with the sewerage and water board. Relator in his petition to this court represents that the said contract has been only partially completed, and that its completion will involve the expenditure of large sums of money. It is obvious that the court a qua, having, on the petition of the relator and other parties in interest, undertaken to administer and liquidate the affairs of the partnership, is bound to continue such administration, until a liquidation can be effected according to law. The suspension of the administration of the receiver pending an appeal would in all probability lead to the dissolution of the contract of the partnership with the sewerage and water board. Such a result might work irreparable damage to all parties in interest, including the relator. The lawmaker foresaw and provided against the suspension, by appeal, of the functions of administrators, curators, tutors, syndics, etc., by declaring that judgments appointing such representatives should be executed provisionally, although an appeal has been taken from the same within the delay prescribed. Code of Practice, arts. 580, 1059. This rule has been applied to liquidators of partnerships. State ex rel. Dubuisson v. Judge, 14 La. Ann. 240. In more than one case our predecessors have assimilated a liquidator of a partnership to an administrator or succession representative. Notrebe v. McKinney, 6 Rob. 13; Executors V. Schenck et al., 41 La. Ann. 464, 6 South. 517. Often, as in the case at bar, the liquidator represents the interest of the succession of a deceased partner in the assets of the firm. It has been held that the appointment of a receiver or liquidator to a partnership is left in a great measure to the sound discretion of the court. Pratt v. McHatton, 11 La. Ann. 260; McNair v. Gowvler, 40 La. Ann. 353, 4 South. 310. Articles 109 and 133 of the Constitution of 1898 provide that district courts shall have jurisdiction "of all proceedings for the appointment of receivers or liquidators to corporations or partnerships." By Act 159 of 1898, the Legislature provided rules for the appointment of receivers to corporations, but has not as yet provided rules for the appointment of receivers or liquidators to partnerships. In the absence of definite rules, the courts seem to have followed the equity practice relating to the appointment of receivers to partnerships. In this case the judge below did nothing more than substitute one receiver for another who had absconded. This action he conThe question of the necessity of the re- sidered imperative in order to preserve the ceivership, and the scope of the administra-interest of the partnership in the contract visional administration, pending an appeal, includes all conservative acts necessary to preserve the assets of the partnership from loss and damage. In the case at bar the only valuable asset of the partnership appears to be its contract with the sewerage and water board, and the carrying out of such contract by the receiver may be necessary to prevent its dissolution for nonperformance on the part of the partnership, and a possible claim for damages. The relator has an adequate remedy by a devolutive appeal. It is therefore ordered that relator's application for a mandamus be denied and dismissed, with costs. SOMMERVILLE, J. [1, 2] Plaintiff, William Stiles, entered into a contract with P. E. Edrington, Jr., attorney at law, September 24, 1913, under Act No. 124, 1906, p. 210. That act provides, in addition to the privilege given to an attorney at law on the judgment, and property recovered by judgment, for his client, that he, the attorney, has the right to enter into a written contract to be signed by the client, by which"attorneys at law may acquire as their fee in such matter an interest in the subject-matter of the suit, proposed suit, or claim, in the prosewhether such suit or claim be for money or cution or defense of which they are employed, for property, real, personal, or of any description whatever. And in such contract of em PROVOSTY, J., being absent on account of ployment, it shall be lawful to stipulate that illness, takes no part. neither the attorney nor the client shall have the right, without the written consent of the other, to settle, compromise, release, discontinue or otherwise dispose of such suit or claim.” This suit was filed September 26, 1913, and a contract under the above provision of law was entered into September 24, 1913, and filed with the clerk of court December 13, 1913. A copy thereof was served upon defendant on the same day; all in accordance with the terms of said Act No. 124, 1906, p. Under the terms of Act No. 124, 1906, p.210. 210, in addition to the privilege given to attor neys for their fees on judgments rendered in favor of their clients under Revised Statutes, 2897, there is given to attorneys at law the right to enter into written contracts whereby they may acquire as their fees an interest in the subject-matter of the suit in which they are employed. White v. McClanahan, 133 La. 396, 63 South. 61. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 381; Dec. Dig. § 176.*] 2. ATTORNEY AND CLIENT (§ 190*)-INTEREST IN CAUSE OF ACTION-DISCONTINUance. After such contract has been filed with the clerk of court, and a copy served upon defendant, any settlement, compromise, or discontinuance, or other disposition made of such suit by either the attorney or the client, without the written consent of the other, is null and void. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88 412-417; Dec. Dig. § 190.*] 3. ATTORNEY AND CLIENT (§§ 184, 190*) LIENS-SUBJECT-MATTER OF SUIT-SEIZURE BY CREDITOR. Where a judgment creditor of a plaintiff in such suit causes the interest of that plaintiff to be seized and sold, only such interest as the plaintiff may have passes at such sale. The recorded interest of the attorney in the suit does not pass to the purchaser under the seizure. Such attorney at law has the right to prosecute the suit to judgment. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 388, 412-417; Dec. Dig. §§ 184, 190.*] ton. This contract shows that the interest of the attorney in the suit was 75 per cent. of whatever amount was recovered on said claim, by suit, compromise, or otherwise. The interest, therefore, of William Stiles, plaintiff, was 25 per cent. of what might be recovered by judgment. All the right, title, and interest of William Stiles, as plaintiff in said suit, was seized under a writ of fieri facias issued from the First Justice of the Peace Court for the parish of Jefferson, November 21, 1913, and on December 13, 1913, after the contract between plaintiff and his attorney had been filed in the clerk's office, and a copy thereof had been served on the defendant, the constable sold all the right, title, and interest of Stiles in and to this suit to C. A. Buchler, the attorney of defendant, James Bruton. Thereupon C. A. Buchler moved the court that plaintiff, William Stiles, show cause why he (Buchler) should not be made party plaintiff in his place, and the motion was made absolute, without notice to Edrington, the owner of 75 per cent. of the claim. Thereupon Buchler, as plaintiff, moved to dismiss the cause, and it was so ordered. Prentice E. Edrington, Jr., under the con tract by which he had become the owner of Suit by William Stiles against James Bru- 75 per cent. of whatever judgment might be recovered in this suit, then moved the court, From dismissal, Prentice E. Edrington, after notice to James Bruton, defendant, Jr., applies for writs of certiorari and pro-and Conrad A. Buchler, to recall and rehibition. Decree of prohibition directed to issue, and order decreeing dismissal reversed. asked that it be reinstated so far as it afverse the judgment dismissing said suit, and Prentice E. Edrington, Jr., of New Orleans, fects him, Prentice E. Edrington, Jr., attorfor applicant. C. A. Buchler, of New Or- ney. This rule was discharged, and Prenleans, for respondent. tice E. Edrington, Jr., now asks for writs of certiorari and prohibition, directed to the judge of the Twenty-Eighth judicial district court. [3] The only thing which was seized by the constable under the writ of fieri facias was the right, title, and interest of William Stiles, plaintiff, in this suit, and that was what was sold to Conrad A. Buchler. The latter, therefore, acquired the interest of Mr. Stiles, plaintiff in the suit, and he could not, as plaintiff, move to discontinue the suit, as Stiles had stipulated in writing with P. E. Edrington, Jr., attorney, that the suit would not be discontinued, without the consent of the latter, under the terms of Act No. 124, 1906, p. 210, quoted before; and the court was therefore without authority to order the dismissal. The interest of Prentice E. Edrington, Jr., in this suit appearing of record, must be recognized to its fullest extent. White v. McClanahan, 133 La. 396. 63 South. 61. It is therefore ordered, adjudged, and decreed that a writ of prohibition issue herein directed to John E. Fleury, judge ad hoc of the Twenty-Eighth judicial district court for the parish of Jefferson, prohibiting him from ordering the dismissal of the suit en titled William Stiles v. James Bruton, No. 1831, on the docket of said court, and that the order of December 20, 1913, decreeing that this suit be dismissed at plaintiff's costs, be annulled, avoided, and reversed. Respondent to pay costs of this court. PROVOSTY, J., being absent on account of illness, takes no part. of January, 1910, each for the sum of $900, payable in one and two years from their respective dates. Interest on one of the notes has been paid to the 6th day of January, 1911. These notes, as to their payment, are secured by mortgage and vendor's lien on land fully described in plaintiff's petition. Vendor in addition promised to pay 10 per cent. fee of attorney on the aggregate amount, principal and interest. The defendant filed an exception of no cause of action, which was sustained in the district court. The case, after the exception had been filed, was considered as in proceedings via ordinaria. The plaintiff appealed to the Circuit Court of Appeals. On appeal, defendant and appellee moved to dismiss the appeal on the ground that the amount in dispute, exclusive of interest and costs, was at the time of filing this suit, February 12, 1912, over $2,000, and that therefore the court was without jurisdiction rati one materiæ. The court held that 13 months interest was due on one of the notes, $78. And on the other 25 months' interest, making interest thereon $150. Total interest...... Principal ...... Amount of notes -as found by the court. $ 202 80 1,800 00 $2,002 80 Ten per cent. attorney's fee on $228, interest, making altogether $2,002.80. There is a slight error in the amount, presumably in copying. It does not affect the result as relates to the point of law. The conclusion was that the court had (Supreme Court of Louisiana. Feb. 2, 1914.) no jurisdiction, as, including interest on the (Syllabus by the Court.) COURTS (224*)—SUPREME COURT-JURISDICTION-AMOUNT INVOLVED INTEREST. In determining the question of the jurisdiction of this court, the interest due on a sum of money is not included in the amount which determines whether or not this court has jurisdiction. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 487, 608, 609, 614, 616, 617; Dec. Dig. § 224.*] note to the date the note was filed, the amount exceeds the maximum jurisdiction of that court by $2.80. The court, in support of its position, cited Mayer v. Stahr, 35 La. Ann. 57; Succession of Foster, 51 La. Ann. 1670, 26 South. 568. The first is erroneous; it has been repeatedly decided since that interest to the date of trial is not computed to fix jurisdiction; and in the Foster succession case the interest Transferred from the Court of Appeals, was not included. First Circuit. Action by Frederick Rogge against Mrs. Harry D. Close and husband. The district court sustained defendants' exception of no cause of action, and plaintiff's appeal to the Court of Appeals was transferred to the Supreme Court. Judgment of Court of Appeals, dismissing the demand for want of jurisdiction and transferring the appeal, reversed, and suit reinstated in the Court of Appeals. B. J. Vega, of Donaldsonville, and W. B. Kemp, of Amite, for plaintiff. R., C. & S. Reid, of Amite, for defendant. BREAUX, C. J. This is a foreclosure suit on two promissory notes dated the 6th day The Constitution fixes the jurisdictional amount of this court at over $2,000, without taking interest into account. Of the Court of Appeals, at $2,000 and less, without including interest. Upon that basis, this court does not have jurisdiction. It is therefore ordered, adjudged, and decreed that the judgment of the Court of Ap peals, dismissing the demand for want of jurisdiction and transferring the appeal to this court, is avoided, annulled, and reversed. It is further ordered, adjudged, and decreed that this suit be reinstated in the Court of Appeals and tried according to law. PROVOSTY, J., being absent on account of illness, takes no part. (134 La. 529) No. 19,606. The complaint is that the defendant is unlawfully appropriating the timber on the ARBUTHNOT v. BIG PINE LUMBER CO., land, and plaintiff asked for an injunction, which was issued. It claims damages for Limited. BIG PINE LUMBER CO., Limited, v. AR- timber removed, $144, and for loss of time and fee of attorney, $150. BUTHNOT. (Supreme Court of Louisiana. Dec. 1, 1913. On Application for Rehearing, (Syllabus by the Court.) 1. COVENANTS (§ 130*)-WARRANTY-RECOVERY OF PRICE PAID. Where one sells, by a warranty deed, lumher which he does not own, he is compelled to return to his vendee the purchase price when the latter has been evicted by the real owner. [Ed. Note.-For other cases, see Covenants, Cent. Dig. 88 245-253, 255, 256, 257; Dec. Dig. § 130.*] 2. DISPOSITION OF CAUSE. Judgment affirmed as between plaintiff and defendant; as between warrantor and defendant case is remanded in order to enable the defendant to prove the amount due him by warrantor. The nonperformance of a resolutory condition within the time stipulated does not ipso facto work a dissolution of the contract, but the dissolution must be sued for, and further time may be allowed. Civ. Code, art. 2047. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 1174-1180; Dec. Dig. § 261.*] Appeal from Thirteenth Judicial District Court, Parish of Grant; W. F. Blackman, Judge. Petitory action by the Big Pine Lumber Company, Limited, against C. L. Arbuthnot, and action by C. L. Arbuthnot against the Big Pine Lumber Company, Limited. S. G. Hester was cited as defendant's warrantor. The actions were consolidated. From judg ment for plaintiff and for defendant against his warrantor, an appeal is taken. Affirmed as between plaintiff and defendant, and remanded as between warrantor and defendant to enable defendant to prove the amount due him by warrantor. Bullock & Prothro and J. M. Durham, of Winnfield, for warrantor. J. A. Williams, of Colfax, for Big Pine Lumber Co. H. M. Brennan, of Jennings, and W. C. & J. B. Roberts and C. H. McCain, all of Colfax, for Arbuthnot. Defendant denies that plaintiff owned the timber. Defendant avers in substance that years ago plaintiff bought the timber without warranty with the right to remove it within a time stated, to wit, ten years, and that the time had expired, and it is therefore not now its timber. Defendant alleged that plaintiff's suit should be dismissed. Defendant claimed to have bought the timber from S. G. Hester for the price of $3,750, and had him cited to answer as his (defendant's) warrantor, in order that if he were cast in the action judgment might be rendered in his favor against the warrantor, fully indemnifying him for his loss. The warrantor answered and for answer stated that plaintiff is not the owner of the timber it claims; that the writ of injunction issued wrongfully and illegally, and claimed damages. Returning for the moment to the defendant, he averred that, in the sale by the Louisiana Real Estate & Development Company (one of the defendant's ancestors in title) to Hester, his warrantor, Hester, was the pur chaser of the following property, to wit: Fractional half of section 36, township 88 north, 5 west; fractional section 35, township 8 north, 5 west, less the timber thereon which was sold by W. F. Taylor Lumber Company and in possession of the Big Pine Lumber Company, Limited. Defendant avers that in all the deeds the property or timber is conveyed to various vendors until it falls into the possession and ownership of the Big Pine Lumber Company, and adds that on that account he declined to appeal from the judgment of the district court; that it would have been useless to appeal as the court of last appeal, and the district court cannot now, in view of the facts, decide in his favor, but that he is entitled to the amount he paid to his warrantor for property which he never received. As defendant offers no further defense to plaintiff's demand, the controversy is entirely between defendant and his warrantor. [1] The warrantor has sold timber to the defendant, not a particle of which he owned. He received the amount paid him by defendBREAUX, C. J. The action is petitory.ant as the price without consideration. Plaintiff sued as alleged owner of the pine timber on fractional section 35 and on east half of northeast quarter and fractional north half of southeast quarter of section 36 in township 8 north, range 5 west, bought from W. O. Harrison, who traces title back to the general government. One having received an amount without having given any equivalent therefor should return it in as limited a time as possible. The fact is undeniable that there was no property transferred. As to the call in warranty and the asserted fee of defendant's counsel, employed by Harrison sold the land and the timber him to have the warrantor cited and to repthereon to plaintiff. resent his interest as defendant against the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Inesxes warrantor, it does not appear in the judgment that the court allowed any fee at all. Warrantor complained of a small amount allowed for profits that would have been realized. to prepare defense or cross-examine witnesses as to the testimony sought to be introduced, having been engaged only a few moments over the phone. Counsel for warrantor specially objected to the reopening of the case as being res judicata and not in conformity with the law. stated in the case, as follows: That counsel for the warrantor having been present throughout the trial, and the case tried and closed, this motion, coming after the judg ment was rendered, gives no legal opportuniOn the 25th day of June, 1912, after the ty to warrantor to protect his rights, he becase had been decided, C. L. Arbuthnot, de- ing a distance of 90 miles from the courtfendant in his suit, the Big Pine Lumber house, and the appearance for him herein beCompany, against him, and plaintiff in the ing made by counsel who has had no opporother suit against the Big Pine Lumber Com-tunity to examine records and protect the inpany, consolidated, filed a petition as related | terest of the warrantor, to the accorded time to the judgment which had been rendered as operating against J. G. Hester as warrantor, the asserted vendor of the timber. He alleged that the court should render judgment additional in his favor against Hester for whatever amount petitioner has paid to said Hester for the timber in controversy. He further alleged that, in order to determine the amount on the judgment which should be rendered against the warrantor, it was necessary that this case be reopened; that further evidence be offered for the reason that he had inadvertently forgot to do so on the trial of the case. Petitioner avers that for and in consideration of the purchase price of the timber involved in the suit he has paid to Hester as follows, to wit: April 2, 1912, check for..... April 2, 1912, draft on a lumber company April 12, 1912, check for. Total amount $ 500 00 He further asks for a reopening of the case for the sole purpose, as he alleged, of proving the above amounts to be true and correct, proving that they have been paid to J. G. Hester for the timber involved in this suit, and that the amount of the judgment rendered against the warrantor be deter mined. No default was ever taken on the petition. The motion was filed, allowed, heard, and the trial had on the same day. The order of the court was that the cause which had already been decided be reopened for the purpose of proving the allegation in the petition and of determining the amount of the petitioner's judgment against J. G. Hester, warrantor. Testimony was offered on the rehearing to show that the amount above alleged had been paid to the warrantor. The court then rendered judgment for the sum of $3,250, with interest at 5 per cent. from June 25, 1912, this, said the court, being the amount shown to have been paid by C. L. Arbuthnot to J. G. Hester for the purchase price of the timber in controversy, also for the sum of $150, with interest, and also condemned Hester to pay the costs as recited in the judgment. On the same day that the case was reopened, the minutes show the following: To which reopening of the case counsel for the warrantor objected and interposed the objec The case has to be remanded in order that evidence may be admitted for the purpose of showing the amount due by the warrantor to C. L. Arbuthnot, the defendant. The amount had not previously been claimed nor any demand made for judgment on the line indicated. It is therefore ordered, adjudged, and decreed that the case be remanded to the district court for the sole purpose, just above expressed, of admitting proof of payment and to render judgment according to law after amendment and citation. The judgment between plaintiff and defendant remains unchanged and is affirmed in every respect. [2] The judgment between defendant and warrantor to the extent that it decrees that a specific amount has been legally proven is avoided, annulled, and set aside, and it is adjudged and decreed that the evidence be admitted and judgment rendered for amount due by warrantor to defendant. The costs of appeal to be paid by appellee, and all other costs to await final decision. On Application for Rehearing. PER CURIAM. [3] The contention of the warrantor that the Big Pine Lumber Company forfeited its title to the timber in dispute, because said company failed to remove the same within the time stipulated in the deed of purchase, is without merit. The nonperformance of a resolutory condition within the time stipulated does not ipso facto work a dissolution of the contract, but the dissolution must be sued for, and further time may be allowed. Civil Code, art. 2047; Turner v. Collins, 2 Mart. (N. S.) 607; Chalon v. Walker, 7 La. Ann. 477; Perkins v. Frazer, 107 La. 393, 31 South. 773. Warrantor's title to the land expressly excluded the timber thereon, and notified him that it had been sold and was in the possession of the Big Pine Lumber Company. Rehearing refused. PROVOSTY, J., being absent on account of illness, takes no part on the application for |