Hobson & Co. v. Whittemore

13 La. 422 | La. | 1839

Martin, J.,

delivered the opinion of the court.

The appellant has built his hopes for the reversal of the judgment on the following assignment of errors, apparent on the face of the record:

1. That his plea to the jurisdiction of the court, on account of his residence out of the parish, was not overruled before the trial of the cause.

2. The Parish Court was incompetent to try the question whether the appellant was a partner, because it was denied, and it was admitted that he resided in another parish.

3. The suit should have been tried by a jury.

I. The appellant was sued as a partner of a commercial house established in New-Orleans. In order to ascertain whether he was sueable in the Parish Court, it was necessary to establish that he was a partner; in other words, to prove one of the allegations in the petition on which the plaintiff’s claim rested, and which the defendant denied. Whenever the same fact is the ground of a dilatory exception, and of the merits of the case, it must be acted on in the trial of the cause; because, otherwise, the fact would necessarily be tried summarily, and could not be submitted . to a. jury.

II. The appellee’s counsel has correctly urged, that if the second error assigned could prevail, a partner residing out of , ... , , , . , , . , , , n , the parish in which the firm is established could never be sued in that parish, under the Code of Practice, art. 165, as it would be sufficient for him to allege his residence out of the parish in order to disable the court to act on his liability as a partner.

Commercial partners may all be sued in the parish in •which they conduct their business, although one of them resides and is domiciliated in a different parish.

III. The defendants filed separate answers, and the appellant did not pray for a jury; the exception, therefore, was properly heard with the merits.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.