2 La. 223 | La. | 1831
Rehearing
SAME CAUSE ON A REHEARING.
Nothing can he assigned a* error of law which could have been cured by evidsnce legally given at the trial.
Without a statement of facts the Supremo Court cannot know what evidence was introduced, and are bound to presume, until tha contrary is
Pleading to the merits is only one way of giving jurisdiction to the court. Issue joined on any other matter, unless where the incompetency of the judge is absolute, will have the same effect. '
on a rehearing, delivered the opinion of the court.
This case was decided last Summer j'ust before the adjournment of the court, but a rehearing has been granted on the application of the appellant.
We have heard his counsel, who contends that on an obligation which is joint and several, there is no joint remedy where the parties live in different parishes.
We waive the final settlement of this question, until a case arises which will render the examination and decision of it necessary.
The present is not such a one. On the last argument, the counsel for the appellee has drawn our attention to the manner the cause comes before us. There is no statement of facts, and the appellant relies alone on an error of law appearing on the face of the record.
That error is, that the defendant, Jones, is sued in a different parish from that in which he resides.
It is the settled jurisprudence of this court, that nothing can be assigned as error of law, which could have been cured by evidence legally given on the trial, and this for the most obvious reason. Without a statement of facts, we cannot know what proof was adduced, and we are bound to presume, until the contrary is shewn, that the judgment below was rendered under those circumstances, and with that evidence which made it legal and correct.
The application of this rule to the case now under consideration, shews at once the impossibility of reversing the judgment.
Our legislature has adopted the principle of the Spanish law, that a judgment by default presents a species of the
Now it is clear, proof might have been legally introduced -n tjjjs instance, to enable the court below to give judgment against the defendant. Its jurisdiction over the subject matter is not contested. The alleged defect is in relation to the person. The personal privilege might be waived, and evidence of the consent to let the court decide on the matters arising out of the petition, might have been given. Counsel» indeed, have read from the Code of Practice, an article to sfiew, that nothing but a plea to the merits will waive a de-feet as to the jurisdiction; but that article, taken in connexion with others in the same work, shews that pleading to the Merits is only one way of the defendants consenting to give the court jurisdiction. Issue joined on any other matter, un- , ■ . , , . less where the meompeteney or the judge was absolute, would have the same effect, and express consent would be stronger than either. — Code of Practice 93, 333.
The ¡probability or improbability of such proof having been given, does not affect, in the slightest degree, the soundness of this conclusion. If it could have been given, legally "giving it is sufficient.
Our former judgment, therefore, does not require to be changed.
Lead Opinion
delivered the opinion of the court.
Jones, the appellant, assigns as error apparent on the face of the record:
1. That he is judge of the parish of St. Tammany, and should, as such, be known to the judge of the first district, and he has his domicil in said parish. He, therefore, is sueable there only — Code of Practice, 162 — as he does not come within any of the exceptions in the Code.
2. The action is not maintainable, being brought for the surrender of a note, which is not sued on.
The appellant did not plead his commorency. If he had, it would have been of no avail, as his co-defendants were residents of the parish in which the suit was brought.
Nothing prevents a suit being brought for the surrender of a note not sued on.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.
