Miller v. Whittier

| La. | Oct 15, 1833

Martin, J.,

delivered the opinion of the court.

The defendant and appellant relies for the reversal of this judgment on an assignment of errors on the face of the record.

1. From the allegation in the petitions the note and protest do not correspond. The endorsement showing the Bank ofLouisiana was the holder and not the plaintiff; and if the latter put the note in bank for collection, the, proceeds would have gone to the credit of the appellant, Taylor, the only endorser, so that the note could not be protested.

in an assignfaceof the record6 nothing can avail the appellant which could have the ' appellant been cured by fntruduced'infhe ness of a judgment be questioned, and the Supreme Court are not furnished with the evidence on dered, ^t^wiii^e EéenUrenderedaon authorised ichicl1

2. The note is not in law or commerce a negotiable note, and Taylor as assignee, guaranteed nothing but the existence of the debt.

3. If the note was ne gotiable, all persons who placed their names on it, were hound in solido, and so the first and amended judgment was correct.

4. The District Court erred in amending the judgment on the motion for a new trial.

5. On the final judgment against Whittier, he is responsible to his co-defendants for one half of the amount of the note, while if it is to be considered as negociable, he would as drawer be liable to the drawee for the -whole.

6. By the final judgment the appellee can issue execution against Whittier for one half of the debt, and against the appellant for the whole, whereby he has judgment for the amount of his claim and one half more.

According to the settled jurisdiction of this court, nothing can avail the appellants in an assignment of error apparent on the face of the record; that could have been cured by evidence legally introduced in the inferior court.

!• According to this view of the case, the plaintiff might well have proved at the trial, that he had deposited the note for collection; that the practice' in the office of the institution at Alexandria is different than is alleged, or was departed from in this instance.

II.- It may have been shown that all the parties to the note are merchants and the note was given in a mercantile transaction.

III. The third assignment of error assumes the correctness of the first -judgment. As we have not before us the # evidence on which it was given, our duty is to presume it ° 7 j z was rendered on evidence which authorised it.

IN. Whittier is not appellant of the second payment, and R does n°t affect the interest of Taylor the only appellant, who does not complain of it otherwise than affecting his own interest, and not as affecting those of Whittier and thus perhaps individually his own, as having an interest in having a different judgment against Whittier, which cannot be done whilst the latter is not before us.

A judgment of the inferior court cannot be altered against a party who is not before the Supreme Court. While the appellant is by the judgment condemned to pay the exact sum he owes, he cannot assign as error that the plaintiff has alsojudgme :t against another person for an equal or less sum. Barry, for the plaintiff and appellee.

Y. Assignment of error relates to the amount of Whittier’s liability, which for the reasons just given cannot be the object of our consideration in the present case.

VI. While the appellant is by the judgment condemned j to pay the exact sum he owes, he cannot assign as error that the plaintiff has also judgment against another person for an equal or less sum.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.