18 La. Ann. 81 | La. | 1866
The two notes sued upon were executed by the defendant,, a resident of the parish of Avoyelles, on the 18th day of November, 1856, pa. able, respectively, on the 12th and 15th November, 1860. This suit was filed and instituted on the 5th August, 1861, before the Second District .Court of New Orleans, when the defendant was still residing in the said parish of Avoyelles. In order to secure the payment of said promissory notes, and others executed on the same day, to the amount of $75,000, the defendant consented and gave a special mortgage by public act, before a notary public, in New Orleans, on a plantation and slaves, situated in the-parish of Rapides. It was stipulated in the act of mortgage that, if it become necessary to institute legal proceedings for the recovery of the amount of said notes, or of any part of them, the defendant agreed that such legal proceedings might be instituted and carried to final judgment and execution in any of the District Courts of New Orleans, or other Courts of competent jurisdiction in said city, waiving and renouncing the-
The defendant excepted to the jurisdiction of the Court as follows :
“The defendant, Hugh M. Keary, now appears for the purpose of excepting to the jurisdiction of this Court, and excepts on the ground that his domicile is in the Parish of Avoyelles, and that he is not amenable to the jurisdiction of this Cotu’t, and he denies that the clause in the act of mortgage relied on by the plaintiff to sustain the jurisdiction of this Court, has any legal or binding effect.”
The District Court sustained the exception, and dismissed the suit as prayed for.
The plaintiff took this appeal.
The motive of this Amendment is very clear to our mind; it was enacted to prevent the improper exercise of undue influence and advantage by money-lenders upon the needy, and to prevent also the obligor from waiving his domicile in advance, and at the time of the contracting of the obligation ; and the only effect of this law is to reserve to the debtor his rights of pleading to the jurisdiction of the Court, notwithstanding any agreement to the contrary, but it does not forbid him from submitting to the jurisdiction of the Court, if he chose, by appearing and answering on the merits. C. P., Art. 93. Previous to this amendment, it was always considered that a party in contracting a debt, could agree to waive his domicile, and submit to the jurisdiction of another competent Court than, that of his residence.
This article, 162 of the Code of Practice, cannot be considered as a law of public order, or good morals, but as one of convenience; enacted for a limited class of individuals, and which does not concern the public. Individuals cannot, by their convention, derogate from the force of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly and impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and it is not contrary to the public good. C. C. Art. 11.
The very enactment of this amendment to Art. 162, C. P., is a strong argument, going to demonstrate that' previous to its passage, parties could waive their domicile by agreement; now any such waiver is prohibited and not binding. It is the agreement that is prohibited, and nothing more. ¥e believe then that the agreement by which the defendant consented to waive his domicile or residence, was legal and binding on him at the time he contracted the obligation, and the legisla
It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled and reversed ; that the exception to the jurisdiction of the Court be overruled, and that the case be remanded to be proceeded in according to law, and that the defendant and appellee pay the cost of this appeal.
