Green v. Dakin & Dakin

15 La. 152 | La. | 1840

Morphy, J.,

delivered the opinion of the court.

The defendants are sued on two promissory notes, given in payment of real estate bought of plaintiff. They offered no serious defence below, and were decreed in solido to pay the amount of the same.

They contend that they have been improperly ruled to trial in the court below ; that they had the right to have their cause set down on the docket of the court, and fixed and tried in its turn, and not otherwise; and that the rules of the court below, under which they were forced to trial, are contrary to the Code of Practice, article 463.

The rules have been given in evidence, and we find them spread on the record. The third one complained of, provides “ that any party may direct the clerk to fix for trial any cause in the possession of the court which is at issue : giving , 1 7oo the opposite party three days notice of the trial.” Article 463 of the Code of Practice, provides that “as soon as the answer has been filed in a suit, the clerk shall set down the cause on the docket of the courts in order that it be called in its turn, and a day fixed for its trial.” We have no evidence before us that the clerk did not do his duty in setting down this cause on the docket as soon as the answer was , . , , , .. , . , , . filed. And we do not perceive in what respect article 463 of the Code of Practice is violated by the rule complained of; for a case must be considered to be called in its turn, under that article, when it is called and fixed for trial, ac~ cording to the rules which that code authorizes the courts to enact for the despatch of the business before them. We have not the power, and still less the inclination, to interfere _ 1 . w'^ P°^ce and regulations of the inferior courts, unless they be manifestly contrary to law, and lead to gross in- . .... . .... justice; which is not (he case in this instance.

The members of a firm doing business as architects, and signing notes for the price of immoveable property purchased by them in the name of the ' firm, will only be bound jointly, and not in solido.

Qn t[ie merits, the defendants contend that they are not 5 J bound in solido : their partnership not being of a commercial character. The plaintiff describes them in his petition to be architects, doing business as partners; but has not alleged 0r proved that they did any commercial business. The par-1 , , , . M , ticular property for which these notes were given, would not have belonged to the firm, even if it had been a commercial one. We think, then, that the defendants are not liable in solido. Louisiana Code, article 2075, 2088, 2796; 5 Louisiana Reports, 120; 7 Idem., 426.

It is therefore ordered, and decreed, that the judgment of the court below be so amended as to render the defendant’s obligation to pay under it, joint only, and not joint and several, as prayed for by plaintiff; and that the costs of this appeal be borne by the latter.