16 La. 69 | La. | 1840
delivered the opinion of (he court.
The plaintiff seeks payment for sundry articles of machinery, made in his iron foundry for the defendants. The latter pleaded the general issue, and that the machinery was not made according to a model given the plaintiff, and was otherwise defective.
During the pendency of the suit, defendant, Barr, died; and there was judgment against the defendant Brashear, and the representatives of Barr. Brashear alone appealed.
Our attention is first arrested by a bill of exception, taken to the reading of a deposition, on the ground that the magistrate who received it, did not annex it to the process verbal, the commission and the interrogatories, as is required by law. Code of Practice, article 433.
It does not appear to us the court erred in receiving the deposition. The magistrate inclosed it with the commission, interrogatories and process verbal, in an envelope, sealed with his seal, and directed to the clerk of the court. This is sufficient to authorize the deposition to be read in evidence.
The delivery of the articles charged in the plaintiff’s bill, was proved ; but there is no evidence of any model or direction being given to the plaintiffby the defendants, as averred by them.
The judgment was rendered against Brashear, and the representatives of Robert S. Bárr, when the deceased was called Robert R. Barr, and his name is thus stated in the petition. His representatives have not appealed. The error appears to be a lapsus calami, of which Brashear, who is the only appellant, cannot avail himself.
The judgment should be a joint one; the defendants not being stated, and not appearing, to be commercial partners, but partners in a sugar estate, Brashear is only liable for one-half; and the liability of the representatives of the other defendant, is a matter which does not concern him. The court, however, erred in the form of its'judgment. The Louisiana Code requires, that “in a suit on a joint obligation, judgment must be rendered against each defendant, separately, for his proportion.” Articles 1081, 2844.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, so far it relates to the defendant Brashear only, the other defendant not being before us ; and proceeding to give such a judgment as, in our opinion, ought to have been given in the court below, it is ordered, adjudged and decreed, that the plaintiff recover of the defendant Brashear, the sum of three hundred and seventeen dollars, and thirty-one cents, with costs in the court below ; those of the appeal be borne by the plaintiff and appellee.