Morton v. Graham

11 La. 449 | La. | 1838

Martin,

delivered the opinion of the court.

The plaintiff and appellee demands the dismissal of the appeal, on the ground “that he was not cited, nor served with a copy of the petition of appeal.” The sheriff’s return shows that a copy of the petition and citation were served on the appellee, by being handed to the attorney of the plaintiff and appellee, who resided out of the state. The place of the appellee’s residence appears not only by the return of the sheriff, but also by the original petition, which informs us that the plaintiff resides in the state of Mississippi.

The service of citation and petition of appeal after the return day,is irregular, and would be fatal if objected to in the written motion and prayer forthe dismissal of the appeal. But the appearance of the appellee cures all irregularites in the service of the citation of appeal, except those which are stated in the written application for dismissal.

The record, however, shows, and it has been insisted, that the citation was irregularly served; that is to say, after the return day of the appeal.

The appeal was returnable on the third Monday of April, and the citation was not served until the 6th of May. This would have been fatal, if it had been objected to in the written prayer for the dismissal of the appeal; but the plaintiff’s appearance cures all the irregularities in the service of the citation, except those which are stated in the written application for dismissal. The others are waived by the appearance, and the prayer for the affirmance of the judgment, if the objection relied on be overruled. The appeal, therefore, ought not to be dismissed.

On the merits, it appears the suit was instituted to recover the net proceeds of a sale of a number of mules, belonging to the plaintiff, by the defendant. The defendant pleaded the general issue, and' claimed in reconvention a sum of twelve hundred dollars, on an obligation of plaintiff to deliver him cotton, which the former had neglected to do; and further, the amount of a promissory note, of a firm of which the plaintiff is alleged to be a member. Whereupon, on motion of the plaintiff, the pleas in reconvention were stricken out. On this, a supplemental answer was filed, in which the defendant urged in compensation whát he had urged in reconvention in the original. On motion of plaintiff, the plea of compensation, relating to the obligation to deliver cotton, was stricken out, and that which related to the note of the firm, was, on the opposition of the defendant, retained.

The plaintiff now replied, that the defendant’s claim, offered in compensation, was prosecuted in the state of Mississippi, where there was a final judgment against him, on it; and further, that the note sued on is a joint one, subscribed by the firm of which the plaintiff is a member only, ■ and cannot be offered against one, in which the defendant is the sole obligor.

gation, in which signed jointly P:u'tnel'-be set up as a vention” against own right. ¡n 0o^p“nSatton cannot be sustained against mm of several a ship del->L c^ni).0j-compensation to ™aim the partners.,

There was judgment in favor of the plaintiff, for the sum claimed, the Parish Court expressing its opinion, that the “plea of compensation in regard to the note had been adjudicated,” and that, “with regard to the plaintiff’s liability as a partner, if it be the case, ho compensation can be maintained, as a partnership debt cannot be set off against an individual claim.” The defendant appealed.

It appears to us, the plaintiff clearly established his claim for the net proceeds of the sale of the mules.

The plaintiff subscribed the obligation to deliver cotton, and the promissory note, as a joint obligor with the firm; . , . _ ■ , ,. . and the judge a quo correctly held, that on a joint obligation all the obligors must be made parties. Louisiana Code, 2080. A plea of compensation cannot be sustained against any one of the obligors. He rightfully declined the inquiry, whether .the plaintiff was a member of the firm, because a partnership debt cannot be opposed in compensation of the individual claim of one partner.

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