52 So. 535 | La. | 1910
Lead Opinion
On Motion to Dismiss.
This is a suit to recover $5,000 damages for public defamation.
The petition alleges that the plaintiffs are partners in a mercantile business carried on near Laplace, in the parish of St. John the Baptist; that defendant and his xiartners conducted a similar business in the immediate vicinity; that- in August, 1909, defendant’s storehouse was destroyed by fire; that on sundry occasions the defendant publicly, falsely, and maliciously declared that the liiaintiffs had set fire to his said storehouse; and that such unfounded accusations had damaged the plaintiffs jointly in their reputation and credit in the sum of $5,000.
Defendant filed an exception of misjoinder of parties plaintiff, on the ground that each of them should have instituted a separate action. This exception was maintained, and the suit was dismissed. Plaintiffs appealed.
Defendant has moved to dismiss the appeal on several grounds which may be stated as follows:
(1) That the damages claimed were inflated and magnified in order to give the Supreme Court jurisdiction of the ease, or, in other words, that it appears from the allegations of the petition that the damages alleged to have been suffered were less than $2,000,
The entire sum claimed is the matter in dispute. Armstrong v. Railroad Company, 46 La. Ann. 1448, 16 South. 468. A charge of the crime of arson is well calculated to damage the reputation and credit of any person, and the quantum of damages in such cases is left to the sound discretion of the jury or of the court. Hence, there being no-standard or measure of damages in such a case, we are not prepared to say that the demand of the xilaintiffs is fictitious, or was inflated for the purpose of giving this court jurisdiction.
(2) That the judgment is illegal, because rendered and signed on the same day, in contravention of article 117 of the Constitution of 1898.
As we read the minutes, the judgment -was rendered on December 20, 1909, and was read and signed on December 30, 1909. In the country parishes, judgments are «.often rendered orally and briefly noted on the minutes, and afterwards drafted and read and signed in open court.
We are not prepared to say that a judgment rendered, read, and signed in open
It has been held that the premature signing of a judgment is not assignable as error. Opothlarholer v. Gardiner, 15 La. 515, citing Weathersby v. Hughes, 7 Mart. (N. S.) 233. A judgment signed prematurely, pending a motion for a new trial, is to be considered as suspended. Succession of Gilmore, 12 La. Ann. 663.
It has been held in a number of cases that an appeal taken after rendition, but before signature, of judgment, is not premature, where the judgment is signed at the same term. McGregor v. Barker, 12 La. Ann. 289; Vicksburg, S. & T. R. Co. v. Hamilton, 15 La. Ann. 521; Green v. Huey, 23 La. Ann. 705; Mouton v. Broussard, 25 La. Ann. 497; State v. Balize, 38 La. Ann. 543.
Hence, if the judgment in question was prematurely signed, its effect was suspended until the next day, and the appeal was not premature because taken one day before the judgment became effective.
Irregularities of this kind are cured by article 898 of the Code of Practice.
It is therefore ordered that the motion to dismiss be overruled.
Opinion on the Merits
On the Merits.
This suit was dismissed in the lower court on exception of misjoinder of parties plaintiff.
The action is for slander. The two plaintiffs demand $5,000 damages, which they say is due jointly, $2,500 to each. They allege that they and the commercial firm of which the defendant is a member had rival stores, five acres from each other, at Laplace, La.; that the store of defendant’s firm caught fire and burnt down; that during the fire the defendant said in a loud voice in the presence of bystanders, while pointing with his hand to the store of the petitioners, that the store was set on fire by storekeepers, white men, two or three (meaning the petitioners) ; that on the next day, in the presence of several persons, defendant repeated this statement, and said he knew that something would happen the moment they started a rival wagon; that at another time the defendant, in the presence of several persons, said that he believed the petitioners had set his store on fire.
The question is whether two persons thus joined in one slander may join in a suit based on the slander. We think they can. A case directly in point is that of Armstrong v. Vicksburg R. R. Co., 46 La. Ann. 1448, 16 South. 408, where several persons, who had been jointly prosecuted and acquitted, were allowed to join in a suit in damages for malicious prosecution. Another case directly in point is that of Williams v. Pope Mfg. Co., 52 La. Ann. 1417, 27 South. 851, 50 L. R. A. 816, 78 Am. St. Rep. 390, where two persons, falsely charged with having jointly committed larceny, were allowed to join in one suit for damages for the tort. Also La Groue v. City of New Orleans, 114 La. 253, 38 South. 160, where wife and husband 'were allowed to join; she demanding damages for personal injury, and he demanding reimbursement of the expenses incurred by him in her medical treatment for the injury.
It is inconceivable how the defendant could be benefited by having to litigate in two suits, instead of in one, the matter set forth in the petition. No awkward complication, no confusion, no increased expense, no inconvenience, can possibly result from the joinder.
Judgment set aside, exception of misjoin-
