4 Rob. 193 | La. | 1843
This suit is brought by the payee of a promissory note for $700, drawn to his order, payable on demand, and dated on the 27th of April, 1841. On the allegation that the drawers, Poole & Co., were a commercial firm in New Orleans, composed of Thomas C. Poole and Thomas E. Allen, and that the latter resided in New York, a writ of attachment was sued
The plaintiff’s writ of attachment having been set aside, by reason of the insufficiency of the bond given, he forthwith took out another. This, it is contended, he had no right to do, without previously paying the costs of the first writ, and filing a new petition. Article 492 of the Code of Practice, which is relied on in support of this position, does not, in our opinion, extend to a case like the present. The attachment, which held the place of a citation to the absent defendant being found defective, we can see no good reason why the plaintiff should not be permitted, to have another writ issued under the same petition; and should be compelled to go through the vain ceremony of drawing up and filing another in the same terms. The defendant, moreover, having appeared by counsel, and joined issue on the merits, the judge below properly disregarded his objections to the steps taken to bring him into court.
From the articles of agreement between the defendants, it appears that Thomas E. Allen furnished the stock in trade of the
It is therefore ordered and decreed, that the judgment of the City Court be reversed, and this case be remanded for a new trial, the costs of this appeal to be borne by the appellee.