5 Rob. 449 | La. | 1843
The plaintiffs represent, that the defendants are the endorsers on a promissory note drawn by one Whipple, and not yet due. That the drawer is insolvent, and has left the State, and that the defendants, as such endorsers, will be ultimately liable, and that they (the plaintiffs,) are apprehensive the said endorsers will dispose of their property, and leave the State. They prayed for an attachment against them, which was accorded. Under it a quantity of merchandize was seized, which being perishable, was sold by the Sheriff, and the money retained by him. The defendants moved to dissolve the attachment on the grounds, that they reside permanently in the State, and have no intention of leaving it. That they are not indebted to the plaintiffs, and may never be, as their liability is conditional only ; that the affidavit is untrue, the bond insufficient; and that the attachment issued wrongfully, and contrary to law. They also excepted, that the action was premature, and could not be maintained, as the liability was contingent and not fixed ; wherefore they prayed, that the suit might be dimissed. The exception, and motion to dissolve having been overruled, the defendants answered by a general denial. Louis F. Fourcher, then intervened, alleging, that he was the owner of the store occupied
From the judgment allowing Louis F. Fourcher only $500, he appealed, and from that, on the opposition of White, the assignee of the defendants, Fourcher also appealed.
In this court no counsel has appeared for the plaintiffs. That of the assignee of the defendants has assigned, as errors apparent on the face of the record :
1st. That the attachment ought to have been set aside, on the ground, that the defendants were not indebted when it issued, and might never become so, their liability as endorsers being contingent only.
2d. That there was error in overruling the exception of the defendants, to the suit as premature, no right of action having accrued.
3d. That there was error in allowing the plaintiffs costs previous to the 1st of April, 1842, as the liability of the defendants was not fixed until then, and no action could be prosecuted, until after the party was liable.
The assignee also asserts, that there is no error in the judgment upon his opposition, and he asks, that it be affirmed.
The errors assigned may be considered together, for they all rest upon the same question — were the defendants so liable, on their endorsement for Whipple, as to authorize legal proceedings against them ? We think they were not. The suit was commenced against them on the 19th March, 1842, and the note did not become due until the 1st of April following. The obligation of the defendants was dependent on several contingencies. It was possible the drawer of the note might pay it. If he did not, then the plaintiffs were bound to make a demand, a protest, and to give notice to the defendants. The omission of either demand or notice, would have been fatal to the rights of plaintiffs, and such omissions are not unfrequent. The remedy resorted to by the plaintiffs is a harsh one, and they must be held to it strictly. We can see neither justice, or law, in permitting the holder of a promissory note to resort to an attachment against the endorser, previous to the maturity of it. We think the Judge erred in over
The principal action being disposed of, as a general rule the remainder of the case should share its fate ; but independent of this, there is another objection to the proceedings, so far as it respects the intervenor. Before he appeared in the cause at all, the defendants had gone into bankruptcy, and before the judgment was rendered in his favor, they had been, by the United States District Court, declared bankrupts, and White had been appointed their assignee. At the time when the judgment, from which the intervenor has appealed, was rendered, the defendants were incompetent to stand in judgment, and the assignee not having been made a party, said judgment is a nullity. The suit from its commencement, has been carried on whilst the defendants were applying for the benefit of the bankrupt act without the slightest attention to those proceedings, which is in contravention of the decisions of this court, in the cases of Fisher v. Vose, 3 Robinson, 457, and West v. His Creditors, 4 Ib. 88.
The judgment of the District Court, on the opposition of the assignee, is somewhat unusual; and, if it be taken literally, is probably not a final one. It orders, that all the proceedings in this case, be transferred to the District Court of the United States for the Eastern District of Louisiana, for the purpose of its giving a judgment on the respective rights, and privileges of the parties. This is not what any of the parties asked ; nor do we well see how the United States Court could examine into, and decide the matter, as there were judgments already rendered, fixing the sums owing to the plaintiffs, and intervenor, and settling their privileges. These judgments the United States Court would, we suppose, respect, as it has no power to revise the decision of the State tribunal, and we know of no law, that authorizes the transfer of a case like this into the Federal Court. We recently had occasion to say, that the assignee of a bankrupt, had a right to come into the State tribunals for the purpose of protecting the interests confided to him, and White might possibly have had relief if he had prosecuted his claims properly ; but he has not brought before this court Thielen, the Sheriff, who has in his possession the money in controversy, but has
It is therefore ordered; and decreed, that the judgment which the plaintiffs, Harrod and Darling, have obtained against the defendants, Burgess and Laithe, be annulled and reversed, and that there be judgment as of nonsuit against them, with costs in both courts. That the judgment rendered in favor of the intervenor, Louis F. Fourcher, be also annulled and reversed, and his intervention dismissed, without prejudice, he paying the costs of it. And considering the order, or judgment transferring the case to the United States Court, as a final order of dismissal, it is affirmed with costs.