Liles v. New Orleans Canal & Banking Co.

6 Rob. 273 | La. | 1843

Martin, J.

The defendants and appellants urge as a reason for the reversal of the judgment, an error apparent on the face of the record, to wit; that a judgment by default was confirmed,'and damages given against them by the court, without the intervention of a jury. They rely on the 313th article of the Code of Practice, and 18 La. 474. The' plaintiff and appellee admiis that those authorities were conclusive before the late act of Assembly, which requires the party who wishes for a jury, to deposit the sum of twelve dollars. To this the opposite counsel has, in our opinion, victoriously replied, that the plaintiff was the party who had an interest in calling for a jury, for without it, the court could not legally give damages to her. She, therefore, ought to have made the deposit.

The plaintiff’s counsel has further urged, that the defendants have voluntarily executed part of the judgment, and cannot appeal for the balance. The plaintiff claimed as her property, a note in the possession of the defendants. She had it sequestered, and it was finally delivered to her. She afterwards proceeded in her suit for the damages resulting from the improper detention of the note. They were, as we have seen, allowed her, and the defendants sought to be relieved by a partial appeal. This, in our opinion, is correct.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed, so far as the confirmation of the judgment by default gives damages ; and that the case be remanded for further proceedings according to law; the costs of the appeal to be borne by the plaintiff and appellee.