is a sister of June Bryant, deceased, and that | ror against the plaintiff in error. she is not a party to this proceeding. In pleading title by descent, the rule in equity is that the defendant is entitled to be apprised of all the links which constitute the I claim of descent. The facts establishing heirship should be set forth. An averment that the complainants are heirs is only a legal conclusion. 10 Ency. Pl. & Pr. 54; Larue v. Hays, 7 Bush (Ky.) 50; Hubbard v. Urton (C. C.) 67 Fed. 419; West v. Reynolds, 35 Fla. 317, 17 South. 740. The bill was defective in not alleging facts establishing heirship in the complainants, and the court was justified in refusing to grant the restraining order. The order appealed from will be sustained, without deciding other questions. Affirmed. All concur, except TAYLOR, J., absent on account of illness. (58 Fla 290) JONES v. TYLER. Under an agreement made by the respective counsel for the parties, the cause was referred for trial to Hilton S. Hampton, a practicing attorney, who made and reported the following finding: "The foregoing cause having been submitted to me as referee, and having heard the testimony and argument of respective counsel, I find that the plaintiff, J. R. Tyler, is the owner of the fee-simple title, and is entitled to the possession of the following described land lying in Hillsborough county, Florida, to wit: Lot three (3) of block two (2) of Finley & Stilling's subdivision, according to map recorded in Plat Book No. 1, page 88, Tampa, Fla., May 18, 1909. "Hilton S. Hampton, Referee." No final judgment appears in the transcript, and for that reason we must enter an order of dismissal. Such a paper as we have copied above cannot be considered a final judgment, though it may form a sufficient predicate for the rendering and entry of a judgment. See Demens v. Poyntz, 25 Fla. 654, (Supreme Court of Florida, Division A. Dec. 6 South. 261; Dallam v. Sanchez, 56 Fla. 21, 1909.) [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 329-343, 464-483; Dec. Dig. §§ 66, 78.*] 2. APPEAL AND ERROR (§ 635*)-WRIT OF ERBOR-DISMISSAL. Where no final judgment upon the merits of the cause in an action at law appears in the transcript of the record brought to the Supreme Court on a writ of error to such a judgment, the writ of error will be dismissed at the cost of the plaintiff in error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2776-2782; Dec. Dig. § 635.1 3. APPEAL AND ERROR (§ 78*)-WRIT OF ERROR-FINAL JUDGMENT. In an action of ejectment tried before a referee, where the only entry in the record in the nature of a judgment is a finding by such referee in favor of the plaintiff, it is not a final judgment, though such finding may form a sufficient predicate for the rendering and entry of a final judgment. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 78.*] Error to Circuit Court, Hillsborough County; J. B. Wall, Judge. Action by J. R. Tyler against William Jones. Judgment for plaintiff, and defendant brings error. Dismissed. Dickinson & Dickinson and Frazier & Mabry, for plaintiff in error. F. M. Simonton and E. B. Drumright, for defendant in er 779, 47 South. 871; Dexter & Conner v. Sea- WHITFIELD, C. J., and COCKRELL, J., concur. TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion. (125 La. 340) No. 18,038. STATE ex rel. COURTHOUSE COMMISSION (Syllabus by the Court.) Section 9 of Act 96 of 1904, required the board of liquidation of the city debt to pay, New Orleans, prior to January 1, 1909, for the from moneys collected by it from the city of construction of a courthouse, first, the "interest theretofore have been issued under the authority which may accrue" on the bonds which may of the act; and then, after reserving $37,500 (being the amount needed to insure the payment SHACKLEFORD, J. of such interest to fall due in the following year), to apply the balance of such moneys to the ejectment, instituted by the defendant in er-payment of the certificates (or warrants) to be ror. This is an action of issued for construction and other expenses by the courthouse commission. Compliance with those requirements takes nothing from the ample security upon the basis of which the bonds in question were issued. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 954.*] * * and the remainder of said fund, as fast as it Appeal from Civil District Court, Parish of after sixty days' notice. Orleans; George H. Théard, Judge. Application by the State, on the relation of the Courthouse Commission, for a writ of mandamus to the Board of Liquidation of the City Debt of the City of New Orleans. From an order granting the relief asked in part, relator appeals. Amended and affirmed. I. D. Moore, H. Garland Dupré, and Percy S. Benedict, for appellant. Saunders, Dufour & Dufour, for appellee. Statement of the Case. Continuing, the section reads: "The amounts so to be set aside shall be payable out of the first funds collected 85 per cent. of her estimated annual collected after said city shall have revenues. * The said city * shall also pay to said board ** * * the amounts heretofore appropriated in the budgets for the years 1903 and 1904 for a courthouse, * * * said amounts to be used * * provide for the payment of the principal and interest of said bonds." to Then follows section 9, which reads as follows: "Sec. 9. That the said board shall not call any of said bonds for redemption prior to January 1, 1909. The amounts to be set apart and paid over to said board out of the reserve fund of the annual budgets, prior to that date, shall, when col * * lected, * * * be applied, first, to the payment of the interest which may accrue on any bonds which shall, theretofore, have been issued, and the surplus remaining, after the payment of such interest, and after reserving an amount of $37,500, in the hands of said board, * * ** be used by said board for the purpose of paying the certificates of construction and ant to the terms of section 11 of this act." the warrants and vouchers to be issued pursu The section 11 thus referred to provides: "That all which contractors shall be paid certificates of construction, * shall be payable out funds to be obtained by the board pursuant to the provisions of this act, and said board is hereby authorized and directed to pay the same on presentation." MONROE, J. Relator (hereafter called the "commission") seeks by mandamus to compel respondent (hereafter called the "board") to apply to the payment of its (relator's) warrants the sum of $159,010.63, of which respondent is custodian, together with certain interest thereon; and the petition asks that there also be included other sums to be collected, but that part of the demand seems to have been abandoned. The judge a quo made the mandamus peremptory, to the extent of ordering that the board honor relator's warrants up to $99,260.63, plus the interest earned on that amount; and relator alone has appealed. The amount now in dispute is, therefore, $59,750. The courthouse commission was created by Act 79 of 1902, "charged with the selection and the acquisi- by tion of a site for a new courthouse, in Or-** leans parish, and the construction, furnishing of the and equipment thereof," and was "continued in existence," with the same duties by Act 96 of 1904. According to the two acts mentioned, the cost of the proposed work was to be borne by the state and the city of New Orleans, in certain proportions; the amount to be contributed by the city being fixed at $750,000, for which (by the act of 1904) the city was authorized and required to issue its bonds, of the denomination of $1,000, dated January 1, 1905, bearing interest at the rate of 5 per cent. per annum, and made payable in 50 years, subject to the right of the board (by which they were to be sold) to call them in, before maturity, on certain conditions. Section 8 of the act of 1904, declares that, in order to provide for the payment of the bonds, principal and interest, the city shall set apart, out of the reserve funds of each of its annual budgets, beginning with the year 1905, and until the bonds shall have been paid, the sum of $41,000, and that the same be paid over, as soon as collected, to the board, "to be, by it. held and used, as a special fund, to pay the semi annual interest on said bonds; And it further provides that: * * * upon "All amounts that may become due, for the expenses of the commission and architects' fees, shall be paid by said board warrants or vouchers to be signed by the president of said courthouse commission." The petition alleges (inter alia) that the board sold the $750,000 of bonds authorized by the statute; that prior to December 2, 1909, the board advised relator that it had on hand $159,010.63, but declined to honor the certificates (or warrants) of the commission to an amount in excess of $80,510.63, with accrued interest, and insisted upon holding $78,500, being the difference between the two amounts mentioned, and representing $37,500 received from the city, prior to January 1, 1909, under section 8 of the statute, and $41,000, received in September, 1909. further insisted "That said board that it was its intention to withhold the said sum of $37,500, collected, as general sinking fund for said bonds, as well as said $41,000, collected during September, 1909, and that such the purpose of paying the certificates subsequent amounts as would be collected from to be issued pursuant to the terms of section the city in accordance with the terms 11," etc. of the act it would likewise retain for the payment of interest on said bonds, due July 1st As the total amount of bonds to be issued and January 1st of each year, and any balance, was $750,000, and, as the interest, at 5 per remaining after the payment of said interest, it would apply to the retirement of the bonds, cent. would amount to $37,500 per annum, it and would refuse to honor the warrants of your seems reasonably apparent that the require relator for construction, furnishing, and equipment that the board should reserve that parment aforesaid." It is admitted that (1) the figures set forth in the petition are correct; (2) that the funds which relator seeks to obtain are necessary for the completion of the courthouse; (3) that the city budget for 1909 was adopted in 1908, and dedicated $41,000 from the reserve fund, in accordance with Act 96 of 1904; (4) that contracts for the furnishing and equipment of the courthouse have been accepted and signed by the president of the commission and await the signature of the mayor; (5) that the interest on the bonds, due July 1, 1909, amounting to $18,750, was duly paid, and charged to the commission, before striking the balance of $159,010.63; (6) that the budget of 1910 has been adopted, and sets aside $41,000, from the reserve fund, for the courthouse; (7) that it is within the discretion of the board to determine, after January 1, 1909, when it will call in bonds for redemption, and that it has not yet acted in the matter; (8) that the entire issue of bonds was purchased by the New Orleans Real Estate & Security Company. ticular sum, coupled with the requirement that it should, first, pay the "interest which may accrue," was made part of the law in order that the board, before parting, and in parting, with the funds in its possession, should be provided, in advance, with the means of paying the interest to fall due in the following year. The payments by the city to the board appear to have been made in September of each year. The law does not require respondent to "have in its possession at all times, the sum of $37,500." We must, at all events, presume that each payment is made before January 1st of the year following that in which the law requires it to be made, and hence that the payment for the year 1908 was made prior to January 1, 1909, and, in fact, it is not disputed that it was so made; and all other payments, due prior to that date, had likewise been made according to the law, so that, prior to January 1, 1909, the board had in its possession an aggregate amount, collected by it from the city, of $159,010.63, plus $37,500 (which it subsequently used for paying the interest falling due in The answer of the respondent reads, in January and July, 1909), and minus $41,000, part, as follows: which it had collected from the city, in Sep"Further answering, your respondent shows tember 1909, or a total of $155,510.63. The that, under section 9 of Act 96 of 1904, it is law said that that fund, "when collected" made the duty of respondent to withhold and (and it had been collected prior to January have in its possession, at all times, the sum of 1, 1909), "should be applied, first, to the pay$37,500, over and above the interest due on said bonds, and it is made the duty of respondent ment of the interest which may accrue upon to withhold said $37,500 out of the funds re- any bonds which may, theretofore, have been ceived * previous to January 1, 1909; The lawmakthat, as to the funds received by it issued." May accrue when? subsequent to January 1, 1909, to wit, $41,000, er was legislating in 1904 with regard to it has withheld said funds because the interest bonds which were to be issued between that charges on said bonds, to wit, 5 per cent. on time and January 1, 1909, and was providing $750,000, payable, respectively, in January and July amount to $37,500, leaving the sum of for a condition which was expected to be $3,500 as a sinking fund for said bonds, and brought about prior to that date, at which that the failure of respondent to withhold said time it was, probably, assumed that the $41,000 would * result in the default on the interest of said bonds and an impair- courthouse would be completed, or well on ment of the credit of the city." to completion, and that the commission would need all the money to which it was entitled as badly as it would ever be likely to need it. When, therefore, he (the lawThe question at issue is governed, mainly, by section 9 of the act of 1904, which we re- maker) said the board should, first, pay the interest which may accrue (before reserving produce, as a matter of convenience: the $37,500, and before honoring any of the "Sec. 9. That the said board certificates of the commission), he could not shall not call any of the said bonds for redemption, prior to January 1, 1909. The have meant that it should pay the interest amounts to be set apart and paid over to said which "may accrue" in the distant future, board, out of the reserve fund or, in fact, which may, or might, accrue at * prior to said date, shall, when collected by said board, be applied, first, to any time after the period concerning which the payment of the interest which may accrue he was legislating, to wit, the period prior upon any bonds which may, theretofore, have to January 1, 1909. All subsequent time been issued, and the surplus, remaining after (speaking with reference to the obligation the payment of such interest, and after reserving an amount of $37,500 in the hands of said represented by the bonds) is provided for Opinion. * 286 No. 17,545. (125 La. 351) WEINHARDT v. CITY OF NEW ORLEANS. (Supreme Court of Louisiana. Jan. 17. 1910.) (Syllabus by the Court.) -DUTY TO KEEP IN REPAIR-NEGLIGENCE. A municipality must keep its streets and sidewalks in a condition sufficiently safe to enable pedestrians to cross gutters at intersections without danger; and where it is customary to have three planks as a crossing over a gutter, and through a failure to keep the walk in or der only one plank is left across the gutter, this failure constitutes negligence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1624; Dec. Dig. } 768.*1 by year, pay over to the board the sum of $41,000, and that the board should reserve, from the payments so made to it, prior to January 1, 1909, "when collected by said board," the sum of $37,500, being the exact amount required (all interest being paid up to that time) to insure the payment of the 1. MUNICIPAL CORPORATIONS (§ 768*)—StrEETS interest for the year to come, during which year, to wit, the year 1909, $41,000 more was to be collected, and was collected, from the city, so that the board began the year 1910, as it began the year 1909, with money enough to pay both installments of interest, which are and were to fall due in the course of those years, and (for the year 1910) with a surplus of $3,500, to be applied to the sinking fund. To state the proposition again: The board reported, on December 2, 1909, that it had on hand $159,010.63, of which amount $41,000 had been collected in September, 1909. But it had paid out, for the interest falling due in January and July, 1909, $37,500, so that the amount on hand prior to January 1, 1909, must have been $159,010.63+$37,500-$41,000-$155,510.63, from which, at that time, there was no interest to be paid, and but $37,500 to be reserved, leaving, therefore, a balance, attributable to the certificates of the commission, of $155,510.63-$37,500-$118,010.63. We appreciate the sense of obligation under which both liti gants in this case, without other reward than the gratitude of their fellow citizens and the consciousness of duty performed, are rendering great public service. The much-needed and magnificent courthouse, which, by wise adminstration of the funds at its disposal, the commission has erected, will be a lasting monument to the capacity, public spirit, and worth of the eminent citizens constituting that body. Of the respondent board and its members, it may be said (in paraphrase), as Mr. Webster said of Mr. Hamilton: "They laid their hands upon the cold corpse of the public credit and it stood upon its feet." Having revived and, for years, guarded the credit of the city, the members of the board are, naturally and properly solicitous that it shall not be impaired, and this court is entirely in sympathy with their anxiety. In the instant case, it appears to us that no such danger is threatened. The obligations which are the subject of concern appear to be amply secured, and the judgment to be rendered takes nothing from the security upon the basis of which they were issued. For the reasons thus assigned, it is ordered, adjudged, and decreed that the judgment appealed from be amended, by increasing the amount for which respondent is to honor the warrants or certificates of relator from $99,260.63 to $118,010.63, with proportionate increase in the interest, and, as thus amended, affirmed, respondent to pay all costs. 2. MUNICIPAL CORPORATIONS (§§ 763, 817, 819*) STREETS-INJURY FROM DEFECTS TIME TO REPAIR. The municipality must have had sufficient time to make the needed repairs in order to render it liable. Abbott, Municipal Corporations, vol. 2, p. 2321. “The burden is on the defendant to plead and prove that it did not have sufficient time in which to make the repairs before the injury was received." Abbott, vol. 3, p. 2329. The city has failed to prove want of sufficient time. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1615, 1725, 1739; Dec. Dig. §§ 763, 817, 819.*1 3. MUNICIPAL CORPORATIONS (8 791*)—DEFECTIVE STREETS-LIABILITY FOR RESULTANT INJURY-NOTICE OF DEFECT. The corporation must also have notice of the bad condition of the walk in order to render it liable; but the neglect to make the repairs for a considerable time gives rise to an implication which is considered a sufficient notice to make the city liable. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1648; Dec. Dig. § 791.*] · 4. MUNICIPAL CORPORATIONS (8 790*)-DEFECTIVE STREETS—INJURIES-SUFFICIENCY OF NOTICE NOTICE TO COUNCILMAN. Notice to a councilman that a walk is in need of repair is sufficient notice to the city, for a councilman is charged with a duty in regard to the repairs of streets. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 8 1645; Dec. Dig. 790.*1 (Additional Syllabus by Editorial Staff.) 5. DAMAGES (§ 130*)—AMOUNT-PERSONAL IN JURIES. A person injured by falling on a defective sidewalk suffered a complete vacuate dislocation of both bones of his left arm, suffered great pain, and the ulnar nerve was paralyzed; the effect being to cause complete disability of the lower part of the left arm, which was 22 inches shorter than the other. He had not entirely recovered at the time of trial, and had expended about $1,200 as a result of the injuries. Held, that a recovery of $6,200 was not excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 357-367, 370, 371; Dec. Dig. 130.*] Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Judge. Action by Charles W. Weinhardt against Judgment for the City of New Orleans. plaintiff, and defendant appeals. Affirmed. John J. Reilley, Asst. City Atty., for appellant. Carroll, Henderson & Carroll, for appellee. the upper river side of Patton and Webster streets on his way to a drug store near by, about three blocks from his home, in the neighborhood in which he has lived since. about 18 years. His arm was hurt and his body bruised in the fall. BREAUX, C. J. Plaintiff, the assistant custodian of the customhouse and post office, brought this suit to recover the sum of $21,200 for alleged injuries sustained in a ped aside from, and did not step on the one In attempting to cross the gutter, he stepfall through a defective crossing over a gut-board remaining of, the crosswalk. The case was tried by jury. Verdict This crosswalk consisted of three planks was for $6,200. of about 12 inches each in width. ter. The injuries complained of were suffered on the 7th of October, 1907, at about 9 o'clock on a dark night. He fell while walking on In the diagram which we annex for reference, the planks are identified by the letters A, B, C. |