Chandler v. Witherspoon

4 La. 67 | La. | 1832

Porter, J-,

delivered the opinion of the court.

A motion is made to dismiss this appeal. The appellant contends it is made too late, an answer having been put in on the merits, and the cause set for trial.

The joinder in error by the appellee on the merits, follows an exception on the same paper to the manner in which the appeal is brought up. This proceeding was perfectly regular, and an answer, under such circumstances, cannot be con- . , , . .... sidered as a waiver ol the objection.

The appeal was returnable the first Monday of February, and it was filed in the office of the clerk of this court on the 13th of that month. The first Monday of February was the s‘x^1>and the record was delivered on the succeeding Monday, was the third judicial day after that on which the appeal was made returnable. The 58ÍM article of the Code of Practice gives to the appellant three days after the time allowed to him to file the record. In the case of Rost vs. St. Francis Church, we held there were three days of grace, .... J 0 within which the appellant might still-have the benefit of his appeal. 5 Martin, N. S. 192.

The three days given to the apth¿laiüm_eaftalfilethe record* are days of whichheís en-benefit Ids appeal. of^aw*'which govern negonotes haveno fnsü-uments *° which are not in that form. ' JVicholls, for appellant. Wheeler, for appellee. •

The suit is brought on an obligation which is not negotiable, neither the words “order,” or “bearer,” being inserted in it. It is endorsed in blank by the payee, and in the same r*lanner hy two other persons whose names follow each other on the back of the instrument. The plaintiff", in the petition, states himself to be the assignee of the payee, and first endorser; and further avers, that the said payee assigned, sold and delivered the obligation to him.

On the trial of the cause, the plaintiff" demanded permission to write over the signature of the payee an assignment in his, the plaintiff’s favor. The court refused him permission to do so, and he took a bill of exceptions.

No other evidence being offered by him to prove the assignment and delivery of the note, judgement of nonsuit was rendered against him, and he appealed.

The obligation on which the suit is instituted not being neg°^ak^e5 the rules of law which govern bills and notes of the latter description, have no application to it. We do not know (apart from commercial usage) what right the plaintiff ^as’ at ^ie tlme °f trial, to make out his title by changing, or adding to the instrument which is the basis of the action, , , . , and commercial usage does not regulate paper not negotiable. We think the judge did not err in refusing the permission asked for. The record presents no evidence of the assignment, and

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed with costs.