Bartels vs. Souchon. The plaintiff was married to the late J. O. Bartels on the 19th day of February, 1860, and he departed this life on the 19th day of September, 1891. He was twice married. There were no children, the offspring of the marriage with plaintiff. At the time of his death his son was dead and left his children minors. The property the plaintiff agreed to sell was bought by her from two different vendors in separate acts of sale, at different dates. The first is dated May 28, 1884, the price was seven thousand dollars, cash paid, the notary recites in the deed, by plaintiff, duly authorized by the husband, J. O. Bartels, with her own separate and paraphernal funds, acquired by her by inheritance. The second is dated August 2, 1887, and was a purchase by her for five thousand dollars cash, and contains, substantially, similar declarations in regard to the separate funds of the purchaser. The proof of record is, that plaintiff's husband, an old and infirm man, about 1879 became very much involved in debt, and that in consequence she retained the management of her funds, and never permitted him to have anything to do with her separate property. Her attorney in the case here testified that, at the time she consulted him about the purchase of the several pieces of real estate which she bought and that he knows that plaintiff's husband never had anything to do with these purchases and was not even consulted in regard to the advisability of making them. He states, as a witness that the affairs of the husband became more and more embarrassed. A valuable plantation he owned was sold by public auction. A suit was brought against him in the United States Circuit Court which resulted in a judgment of one thousand two hundred and fifty dollars against him. By her assistance, with her money and the fragments of his fortune he paid his debts. The last years of his life, beginning about the year 1892, she supported him. He had nothing. She gave him even pocket money. He never pretended to interfere with the administration of his wife's paraphernal estate. He after 1879 or 1880 was not in a condition, mentally or physically, to take charge and administer the affairs of any one. The plaintiff testifies and produces evidence in corroboration of her testimony, that she paid for the property out of her paraphernal Bartels vs. Souchon. funds, inherited by her from a maternal uncle and from his son in Germany. Ten thousand dollars of this inheritance she received personally in that country in 1883 and the remainder was subsequently sent to her after her return to the city. A notarial act and accounts were admitted in evidence, showing the amount of the inheritance thus received. Upon this state of facts she brought suit to compel the defendant to accept the title tendered. A curator ad hoc was, at her instance, appointed to represent the son of the late J. O. Bartels and the grandchildren of Bartels, minors-all absentees. The defendant answered, pleading the general denial. He admits having agreed to purchase the real estate as alleged in the petition, but questions the validity and legality of the title. The grounds are that a community of acquets and gains existed between Bartels and wife, and that in consequence she is not the owner of the property, in her own right, it being community property. The judgment in the District Court was for plaintiff. The defendant appeals. It is a well settled question that all property acquired during the community is, presumably, community property; without dissent doctrine and jurisprudence sustain that principle. It has none the less frequently been decided that it is by no means a conclusive presumption; that it may be shown by competent evidence that it is the property of one of the spouses and not at all property of the community. The spouses, parties to acts of purchase, have sometimes imagined that the declarations contained in the act was sufficient to sustain the title claimed; in other words, if the declaration was in the act, property bought with the separate funds of the wife, it carried with it the title. In disapproval of this heresy, this court has said that the "married woman must produce proof dehors the act of sale to establish her title." Bachino vs. Coste, 35 An. 570. The plaintiff has complied with the requirement announced in this decision and has proven by competent evidence that she bought the property with her separate funds. The evidence of that fact is abundant and conclusive; this being all that can be required in any case to sustain the wife's claim, we must conclude that it is the wife's property, and that she has the absolute right to sell it to the defend ant. Bartels vs. Souchon. She has produced the required proof, without reference to any declaration in the deed under which she became the owner. In the second place and as another ground of defence, it is urged by the defendant: the heirs are absent, they are not properly represented by a curator ad hoc because no property was attached. It does not necessarily follow that an attachment should have issued and the real estate attached in order that the court, as relates to the title involved, may be seized of jurisdiction. When proceedings are in rem, absent and unrepresented defendants may be cited through a curator ad hoc. We repeat, in substance, the utterances of this court in Mason vs. Benedict, 43 An. 397. The notice under the articles of the Code of Practice authorizing the appointment of curators, is ample when complied with by the attorney. We therefore held that the absentees could be made parThis conclusion finds support in Duruty vs. Young vs. Upshur, 42 An. 362; Robbins vs. ties to the action here. Musacchia, 42 An. 367; Martin, 43 An. 488. In the case of Pennoyer vs. Neff, 95 U. S. 714, the proceedings should have been in rem and not in personam. A similar view was taken of the issues in Hobson vs. Peake, 44 An. 383. The former of the last cited case was explained in Arndt vs. Griggs, 134 U. S. 316, 324. The court held that while it is true that the State can not bring the person of a non-resident within its limit, and (4) that its process goes not beyond its borders, it may provide any reasonable method of imparting notice. Notice through a curator ad hoc is the method provided in the article of the Code of Practice upon the subject and applied by this court when necessary, as in this case to quiet the title to real estate. Lastly the defendant urges that the plaintiff should be condemned to pay the costs; that the suit was for her benefit and not for the benefit of her purchaser. There is here no question of the possible benefit the suit may secure to one or the other of the parties. Costs are not left to the discretion of the court. Statutes governing costs are imperative. "They are due to him in favor of whom the judgment has been rendered." C. P. 157. It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant's costs. State ex rel. District Attorney vs. Judge. No. 12,110. STATE OF LOUISIANA EX REL. CHARLES A. BUTLER, DISTRICT The respondent judge having granted an order of appeal in favor of the defendant, That writ can not be employed as a substitute for a motion to dismiss an appeal. The orderly and proper course to be pursued is to await action in this court on the appeal. Miller, J., concurring.-The relator, alleging that the accused is allowed no appeal from interlocutory orders, asks for writs of certiorari and mandamus to set aside an appeal grant the accused from the judgment refusing him a change of venue, the appeal being returnable in ten days now on the point of expiration; with the prompt and complete remedy of the motion to dismiss the appeal available to the relator, there is, in my opinion, neither warrant nor necessity in this case to substitute for that well defined remedy the exercise of our supervisory jurisdiction. Constitution, Arts. 81, 90. State vs. Hornsby, 8Rob. 362. Nicholls. C. J.,; Breaux, J., dissenting. N APPLICATION for Writs of Mandamus and Certiorari. ON M. J. Cunningham, Attorney General, and Charles A. Butler, District Attorney, for Relator. Respondent Judge in propria persona. Submitted on briefs March 25, 1896. The opinion of the court was delivered by WATKINS, J. Alleging that in a criminal case pending in his court, the respondent granted an order of suspensive appeal in favor of the defendant, returnable to this court within ten days, from a decree disallowing a change of venue; and averring said decree to be absolutely null and void, the relator prays for certiorari to bring up 48 787 48 1253 48 787 52 273 State ex rel. District Attorney vs. Judge. the record from the respondent's court, to the end that the proceedings may be examined and declared absolutely illegal and void; and for mandamus to compel the respondent to proceed with the trial of the aforesaid cause. The principal question we have to examine and decide is, whether relator is entitled to relief by certiorari; the mandamus is subsidiary thereto, and can not be made effectual without the illegality of the proceedings is first ascertained and decided. In the brief of relator no authority is cited in support of relief by certiorari; consequently, we must make an examination of authority for ourselves. The province of certiorari is to bring up to this court "a copy of proceedings in a suit pending (in the court of the respondent) to the end that their validity may be ascertained" (C. P. 855); and "finding that the proceedings are regular, it shall dissolve the order it has issued." C. P. 865. * In State ex rel. Matranga vs. Judge, 42 An. 1089, this court interpreted the relief that is afforded by this writ thus: "Certiorari has never been employed to inquire into the correctness of the judgment rendered where the forms of law have been followed and where the court has jurisdiction, and was, therefore, competent. "Hence it has been held that the supervisory jurisdiction of this court under certiorari must be restricted to an examination into the external validity of the proceedings held in the lower court. "It can not be exercised to review the judgment as to intrinsic correctness, either on the law or on the facts of the case. "The supervisory power of this court must not be confounded with its appellate jurisdiction." And to the same effect are the following cases: State ex rel. Valeton vs. Skinner, 33 An. 257; State ex rel. Gooch vs. Justice, 38 An. 968. In State ex rel. Block vs. Judge, 41 An. 179, the court said: "The remedy (by certiorari), it has been freqently held, can be invoked only to ascertain the validity of the proceedings before an inferior court on the face of the papers, and never to inquire into the correctness of decisions, whether interlocutory or definitive, made in the case. "Were it otherwise, all cases which are not not now appealable |