19 La. 542 | La. | 1841
delivered the opinion of the court.
The plaintiff claims of defendant the sum of $93 with 6 per cent, interest, from the 2d March, 1840, due on a promissory note payable to and endorsed by James Barr, and a further sum of $543 50, on an .open account. He obtained an attach
The defendant excepted to the jurisdiction of the court, alleging he is a resident of the city of New Orleans, of which place the plaintiff is also a resident, he thei-efore asks the dismissal of the suit, because it is not brought at the place of his domicil. He also asks to dissolve the attachment:
1. Because it is not true as is alleged, that he resides out of the State.
2. Because the affidavit is insufficient, defective and illegal,
3. Because there is and was no date to the writ of attachment.
4. Because the sheriff failed to make and return in due time a specific inventory of the property seized.
5. Because no sufficient service of the attachment was made.
' 6. Because the person who signs his name as deputy clerk of the ^District Court, to the order of attachment, was not at the time such deputy, and if he was, had no authority to make any such order.
7. Because the bond is illegal ,in form, insufficient in amount, and the security is insufficient.
8. Because it is not true the defendant is indebted as alleged.-
On the trial of these exceptions, the inferior court dissolved the attachment, but overruled tbe plea to the jurisdiction.
The defendant then filed an answer to the merits, went to .trial at a subsequent term of the court, aiid judgment was given against him for $93, with interest from judicial demand and costs, which seem to amount to a large sum; from which defendant appealed.
The plaintiff and appellee moves to dismiss the appeal, on the ground the bond is insufficient in amount, as the appeal is suspensive. A reference to the petition of appeal and order
From an attentive examination of the evidence given on the trial of the exception, and motion to dissolve the attachment for the causes stated, we are of opinion-the judge did not err in overruling the exception to the jurisdiction of 'the court and dissolving the attachment. The evidence does not establish for the defendant a domicil in this State-. It is proved^ whilst in New Orleans, he resides at the house of a relation, for the purpose of disposing of the rafts of timber which he procures in the swamps or on the public domain in Arkansas. The witnesses have known defendant nearly or quite as much in Arkansas as in this State. He came originally from Kentucky, and sometimes spoke of that State as his home, as he frequently did of New Orleans. The impression the whole evidence makes on us is, the defendant has no domicil any where. He is one of that floating class of traders and adventurers who are so common in our cities and towns, and on the rivers in this State, who engage temporarily in such pursuits as present an immediate prospect of gain, and depart as soon as they find those pursuits unprofitable. In the case of Williams vs. Henderson; 18 La. Rep. 557; we had occasion to examine the question of domicil particularly, and according to the principles there laid down, the defendant has no domicil in New Orleans.
Of the numerous grounds, on which the motion to dissob/a
On tr¡ai 0f tjje cause, the defendant, by his plea admitted his signature to the note sued on, but denied the plaintiff’s right to it. He further alleged the note was not in plaintiff’s possession when the suit was commenced, but had been since put into his hands without consideration or endorsement, for the purpose of harrassing him. The note is payable 'to James Barr or order, and purports to be endorsed by him. In the course of the trial of the exceptions, Barr came to the stand as a witness, and stated on his voir dire he was interested and was not examined. The plaintiff, for the purpose •of establishing his title to the note, offered to prove by Pagan and other witnesses, that Barr, the payee, had on different occasions admitted he had endorsed the note to plaintiff. To one witness, he said, he still had an interest in the note, although he had transferred it; to another he said, plaintiff and •he had been in partnership, and the note had fallen to the share of the former, and he (plaintiff) was the owner of it. To a third, he said, he had traded the note to plaintiff who had paid him for it. Did not say he had endorsed it, but said he had transferred it.
The defendant objected to the introduction of this as evidence, on the ground: 1st. It was hearsay. 2d. The admissions of the payee of a note not a party to the suit, are not evidence of transfer or endorsement. 3d. It is not a mode recognized by law to prove signatures. 4th. Because the payee is interested in the event of this suit. The District judge overruled the objections and admitted the testimpny,
On the trial, the defendant’s counsel offered evidence to prove the defendant had loaned the plaintiff money, furnished him with provisions and tools, made him payments and advances, that plaintiff had taken shingles and timber belonging to defendant, which he had not paid for. To this evidence the plaintiff’s counsel objected, on the ground that there was no plea of compensation or payment in the answer, and no'such
After the court rejected the evidence, the defendant moved to amend his answer so as specially to set forth these payments advances, on the ground that the justice of the case re-ff an(l that such amendments ought to be allowed at any stao-e 0f the cause. The plaintiff objected to this, and was sustained by the court, to which the defendant also ex- . . . . . . cepted. We do not think the judge erred. The issues had been made up between the parties. The plaintiff had no notice' given that payment or compensation would be opposed to him, he only came prepared to prove his demand and could not be supposed, ready to go int,o an examination of the claims attempted to be proved. The jury had been sworn, the cause was on trial, and a considerable portion of the evidence heard when this motion was made. We think it came too late. The pleas should have been filed before, and the plaintiff thereby notified of them.
The defendant then moved the court to charge the jury, that if they should be of opinion the plaintiff was not the real owner of the note sued on, but that it really belonged to Barr and was put into the hands of plaintiff, only to enable him to obtain an attachment, then they should find for the defendant. This- the judge refused, and told the jury if they found the plaintiff nras the agent or holder for collection, of the note sued on, the action could be maintained and an attachment could be sued out. To this, defendant excepted. The judge was, we think, correct in his charge to the jury. The authorities that an agent may sue on a note payable to order, and «indorsed in blank, are numerous; but defendant may set up all his defence against fhe payee in such a case as the plaintiff
'It was also proved on the trial, that when the deputy sheriff went to attach the timber of defendant, he-told him he did not owe the plaintiff any thing except the note sued on. There is a great deal of contradictory evidence in the case, the jury gave a verdict for the amount of the note and interest, rejecting the account set forth in the petition. We are not disposed to disturh the verdict and judgment thereon, as we think the jury has done substantial justice between the parties.
In examining the judgment as given by the court below, there is error in taxing the defendant with the costs of ment, which was dissolved as we think, correctly. For all the costs relating to the issuing the attachment, and consequences of that writ, the plaintiff is responsible, it being1 a process < x x o i distinct from the citation, and other costs incurred in the case, and the District Judge in his order dissolving the attachment should have stated it was at the costs of the plaintiff.
The judgment of the District Court is therefore affirmed in all respects, except as to the costs arising from the issuing an execution of the writ of attachment, including those costs incurred for keeping and preserving the property seized, which are to he paid by the plaintiff and appellee, together with the costs of this appeal.