Mason v. Stewart

6 La. Ann. 736 | La. | 1851

The judgment of the court was pronounced by

Rost, J.

This action was commenced on the 27th of October, 1848, on a promissory note which had matured on the 1st of January, 1842. The only serious defence is, the plea of prescription. In order to show an interruption of prescription, the plaintiff introduced, in evidence, the record of the suit of Wm. F. Mason v. Stewart and Grayson, the makers of the note, instituted in November, 1843, in which Stewart, the defendant in this case, appeared, by his counsel, Garrett and Sharp, and answered the petition on the 7th of December, 1843, The record was received without objection; and-after the plaintiff’s evidence was closed, the defendant offered his own affidavit, denying that he ever authorized any attorney to appear for him in that case; and particularly, that the answer filed by Isaiah Garrett, in the name of (Jarretó and Sharp, as attorneys for him, was not authorized by him. The plaintiff’s counsel objected to the reception of this affidavit in evidence in that stage oT the proceedings; but the court overruled the objection, and he took a bill of exceptions. The plea of prescription was sustained by the court, and the plaintiff has appealed.

An affidavit, such as the defendant has made, has at times satisfied the court when the authority of the attorney was denied, in a case yet pending, and was made in the nature of a plea in abatement before judgment had been rendered, and any rights had been acquired by the party making the affidavit on the action of the attorney whose authority was denied. Here, the case in which the authority of the attorney is for' the first tinj© denied, was finally decided in 1843; and the result of the decision on the issue made by the answer filed was, that some property mortgaged by the creditor in solido of the defendant, was seized and sold, and the debt extinguished to the amount of $600. That the defendant was so grossly negligent of his own affairs, as to have remained in ignorance of that fact ever since, or that the' counsel who appeared for him, were so regai’dless of their duty or their oath, as not to have informed him, at an early day, of what they had done for his benefit, if they were not originally authorized to act, are things which exceed the limits of rational belief. If, as we doubt not, the defendant was informed by his counsel of what they had done, and silently availed himself of the sale of the property of his creditor, in a case where no personal judgment had been rendered against him, the original want of authority is cured, and his appearance is sufficient to interrupt prescription. We have ’not failed to notice that the affidavit is artfully drawn up; and that while it is pressed upon us as covering the whole ground, it is silent as to the subsequent knowledge of the ratification by the defendant.

In the former suit $600 were made, and as it is not shown what the costs of that suit were, the whole amount must be deducted'from the note at the date of the 8th of April, 1844. The plaintiff is entitled to judgment l'or the balance.

It is therefore ordered, that the judgment in this case be reversed, and that the plaintiff recover from the defendant the sum of eleven hundred and forty-two dollars and fifty cents, with interest at the rate of ten per cent per annnm, from the 8th day of April, 1844, till paid; and’the costs-in both courts.