156 So. 83 | La. Ct. App. | 1934
There was judgment in favor of the plaintiff as prayed for, and the defendant has appealed.
The correctness of the judgment is attacked upon the following grounds:
"1. That no notice of trial was properly served.
"2. That no opportunity was given for the presence of the defendant or his witnesses.
"3. That the Court erred in not maintaining the motion to dismiss an account of the failure to furnish a proper bond for costs.
"4. That the clerk of court was without any authority to authorize the filing of an amended and supplemental petition.
"5. That the Court erred in not permitting the defendant to file the amended and supplemental answer and reconventional demand.
"6. That the plea of prescription of 3 years Should have been maintained.
"7. That the evidence, offered by the plaintiff, did not warrant a judgment."
We shall discuss these issues in the above order.
1 and 2. The first two points are predicated upon the same ground and we shall decide them together. The case was set for trial on the merits on January 19, 1933, and counsel for defendant was personally served with notice thereof. He wrote a letter to the district judge requesting a continuance which was granted. The case was reassigned to February 2, 1933, and defendant's attorney was again personally served with a notice of trial. In addition thereto counsel for plaintiff, the day before and on the morning of the trial, phoned his office to remind him of that fact. On the day in question defendant's attorney appeared in court with an affidavit, signed by himself, in which it was stated that he had not been served properly with a notice of trial although the sheriff's return showed personal service on him. The court refused to continue the case and ordered the trial to proceed. The record shows that defendant, through several different counsel, had requested continuances sixteen times, fifteen requests being granted, and the last one being refused. Our learned brother below concluded that the notice of trial was properly served and we see nothing in the record which would warrant us in saying that he abused his discretion in denying the continuance.
3. The complaint against the ruling of the trial court in refusing to dismiss the suit with reference to plaintiff's alleged failure to furnish a legal cost bond is three-fold: First, the bond was filed more than four days after defendant's notice of the defective condition of the bond was served upon plaintiff, as required by Act No.
We have carefully checked the record and there is nothing in it to indicate or show the date on which the plaintiff was served with notice of the alleged illegal, null, and void condition of the bond by the defendant. In the absence of anything in the record to the contrary, we must assume that the bond was timely filed, particularly since the district judge apparently reached that conclusion and overruled the defendant's motion to dismiss.
With reference to the two above cases relied upon by the defendant, it is sufficient to say that in the case of Stewart v. Clay,
The soundness of the views of the Supreme Court in that case is further borne out by the provisions of Act No.
"Where surety is tendered of persons residing *85 out of the parish, the judge shall pass on the sufficiency thereof, and shall require such proof as he may deem necessary."
Therefore the fact that the surety on the bond resided outside of the jurisdiction of the court was not a circumstance that rendered the bond null and void because the surety might be shown to be competent upon such proof as the court would require.
As we read and understand the provisions of Act No.
We are fortified in our interpretation of these statutes because it will be noted that the act of 1928 amends and re-enacts section 3 of Act No.
In the instant case the first bond furnished by the plaintiff was in response to the defendant's request for a cost bond and the second bond was voluntarily filed in compliance with defendant's notice of the alleged defective condition of it and consequently was never declared invalid by the court, so that the only bond that the plaintiff elected to stand upon was the second bond, which the court declared to be legal. Therefore, in any event the plaintiff was entitled to file a new or additional bond, or to correct the errors or omissions in the second one. See Southern Development Co. v. Greco,
There is no doubt that the second bond was defective in that it lacked the affidavit required of the principal and the surety thereon, as provided by section 4 of Act No.
The record shows the suit was filed on December 30, 1930. On January 21, 1931, the defendant filed a motion for a cost bond, which was furnished as required by the provisions of Act No.
On February 10, 1932, defendant filed a rule to show cause why the suit should not be dismissed because the cost bond furnished by the plaintiff was null and void and of no effect, because the surety who had signed it was a resident of the parish of Orleans and. therefore, without the jurisdiction of the Twenty-fourth judicial district court for the parish of Jefferson, contrary to the requirements of Act No.
In the case of Shushan v. Maloney et al.,
"Be that as it may, relators' application to the Court of Appeal and to this court for the exercise of supervisory jurisdiction in the matter came too late after the relators had filed their answer to the suit in the district court and had put the case at issue upon its merits."
We believe that case to be apposite here under the above-recited facts, which show that the defendant filed an answer, and the case was set for trial on the merits on several occasions before the complaint against the second cost bond was made.
4. The fourth contention is based upon the position that the clerk of court had no authority, under Act No.
In the case of Tarver v. Quinn,
"Nowhere in the Code is leave of court required for an amendment before issue joined. * * *
"And why require leave of court for doing a thing which the plaintiff may do without leave by simply abandoning the petition already filed and filing another? Until defendant has joined issue, why should not the plaintiff be allowed to file as many supplemental petitions as may be useful in the premises."
See, also, Blakeney v. Easterwood,
Furthermore, it was not necessary for the plaintiff to file a supplemental petition asking that the citation be again served. All that was needed was to have the citation, with a copy of the original petition, served on a legal day.
5. Was the ruling of the trial court correct in refusing to permit the defendant to file a supplemental answer and petition in reconvention, after having entered a general denial? The record shows that the defendant's original answer was filed on October 7, 1931. Thereafter the case was set for trial on the merits on a number of occasions and continued each time on defendant's request, and particularly on March 17, 1932. On March 29, 1932, defendant attempted to file the supplemental and amended answer and reconventional demand.
In this supplemental answer and petition of reconvention, defendant sought to specially plead that the materials furnished were so defective that he suffered damages as the result of the use of them and, therefore, was entitled not only to recover the alleged damages sustained, but also to be relieved of the payment of the purchase price thereof. The allegations of the original petition are the usual ones made where the suit is predicated on an open account. Defendant was content to simply deny those allegations.
In Babcock v. Shirley,
"This case turns mainly upon the question whether the court below erred in refusing the defendant leave to amend his answer, after having pleaded the general denial, by alleging a failure of consideration in the contract sought to be enforced. * * *
"The appellees rely upon articles 419 and 420 of the Code of Practice, and several decisions of this court, in support of the proposition, that such an amendment is inadmissible after issue joined upon the general denial. These articles authorize the plaintiff, even after issue joined, to amend his petition, provided the amendment does not alter the substance of his demand by making it different from the one originally brought; and the defendant, to amend his answer, subject to the same rules, and add to it new exceptions, provided they be not of the dilatory kind.
"The Code has thus restrained the discretion of courts, in relation to amendments, instead of allowing its liberal exercise for the furtherance of justice. This court has already had occasion to give an interpretation to these articles, and the question here raised must be considered as settled. In the case of Calvert v. Tunstall,
To the same effect see Jamison v. Charles F. Cullom Company,
In the case of Jordan v. Checker Cab Co., 10 La. App. 132,120 So. 426, the plaintiff sued for damages for personal injuries. The defendant entered a general denial. Later defendant was permitted to file a supplemental answer averring that the collision had been caused by an unknown driver running into defendant's taxicab. The trial court subsequently rescinded the order permitting the filing of the supplemental answer and the Court of Appeal held that the ruling was correct.
In the case of State v. Bozeman,
"Defendants sought to file supplemental and amended answers, containing a plea of estoppel and a plea to the jurisdiction, on the day of the trial. Plaintiffs objected to `all portions of the answers except such as question the jurisdiction of the court,' on the ground that they came too late, and that they changed the issues after the case was at issue. The objection was sustained, reserving defendants the right to renew it to the objectionable portion of the answers `if the evidence introduced by the plaintiffs will justify it.' Defendants excepted to the ruling of the court. * * *
"We think the ruling of the court was correct, first, because the amendments were tendered after the case was fixed and called for trial (McKown v. Mathes,
As we view the case, the general denial was equivalent to the defendant denying that he purchased the materials from the plaintiff. The supplemental answer sought to be filed was tantamount to an admission of the purchase of the material, but that there was a failure of consideration because the material was defective. Certainly this was changing the issue and the amendment was not permissible under the articles, Nos. 419 and 420 of the Code of Practice.
Defendant further argues that as plaintiff was n resident of the city of New Orleans and the defendant a resident of the parish of Jefferson, under the provisions of Act No.
6. The plea of prescription of three years is without merit because it was shown that the previous suit had been filed and had been dismissed only because it was erroneously addressed to the "Civil District Court for the Parish of Jefferson." However, that suit was sufficient to interrupt prescription. In Spring v. Barr,
"Prescription will be interrupted by a judicial demand, though the plaintiff be nonsuited on the merits, or the court be without jurisdiction. Geisenberger v. Cotton (Litchenstein Company),
7. Finally, it is said that there is no adequate proof in the record to warrant a judgment in favor of the plaintiff. The transcript shows that Mr. Lively, the credit manager, and Mr. Willis, the then vice president of the plaintiff company, testified that the materials described on the itemized statement annexed to and made part of the petition were sold and delivered to the defendant and that the prices charged therefor were reasonable. The trial court accepted this testimony and we see no reason to interfere. In any event, only an issue of fact is involved and it is clear that we are unable to say that the judgment of the trial court was manifestly erroneous.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
