Medley v. Voris

2 La. Ann. 140 | La. | 1847

The judgment of the court was pronounced by

SiiiniíLji, J.

The defendant, R* R. Barrow, is appellant from a judgment rendered against him on a promissory note, of which he was endorser. After a judgment by default, he filed an exception and answer. The exception pre* seats a general objection to the- citation as informal, In his brief, the eounse* presents two alleged points of informality. First: That the citation was not under the seal of the court. As he has not thought proper to produce and offer in evidence the citation served upon him, neither this court, nor the court below, has been enabled to judge if the defect existed ; and, in the absence of such proof, we will presume the clerk did his duty. As to the copy of citation in the transcript of appeal, to which we are referred, it exhibits no seal or copy of a seal; but we do not consider this circumstance as establishing that the citations issued were unsealed, for it has been common for clerks in copying citations in the transcript to neglect to copy or notice the seal. Second : That the place where the clerk’s office was held, was not described in the citation. The copy of the citation in the record bears the title of the District Court of the Fifth Judicial District, sitting in and for the parish of Terrebonne, is signed by the clerk, and calls upon tho defendant to file his answer in the office of the .clerk of said court, at Houma. This designation appears to us a sufficient compliance with the 179th article of the Code of Practice.

The note was dated at Houma, was made payable at a bank in another parish, and the notice was addressed to the appellant at Houma. This being a post town in the parish of Terrebonne, and the appellant being a resident of that parish, the notice must be considered as properly mailed at the place of protest, and properly thus addressed. If there was a post office in Terrebonne parish, or elsewhere, nearer than that of Houma to the appellant's residence, the prima facie showing made by plaintiff, threw upon the appellant the burden of proving such proximity. Yeatman v. Erwin, 5 La. p. 266.

The appellant has also objected that the original protest and certificate of notice were offered in evidence, and that it does not appear that either the protest or certificate was recorded. We are at a loss to see how, under the fair iaiendment of the statute, an original can be considered evidence inferior to a eopy of a recorded original.

The appellant complains that interest was given .on the sum of $700, from the 1st March, 1846, instead of the 4th March, 1846. The difference is too insignificant to justify us in reversing this judgment, and inflicting on the plaintiffs the costs of an appeal, by which the appellant has gained a delay of some months. Judgment affirmed.