43 La. Ann. 372 | La. | 1891
The opinion of the court was delivered by
The plaintiff brought suitwa ordinaria May 16, 1890, against the defendant on a promissory note of which he is the maker for the amount of $3173.58 with interest from maturity, dated March 5, 1884, and made payable on the 25th day of December of that year to the order of E. M. Hogan & Co., and secured as to its payment by mortgage.
No payment was made on the note subsequent to January 5, 1885. On that day, the sum of $657.70 was paid on account.
It was at the time held by the Union National Bank, to whom it was transferred.
The defendant excepted to plaintiff’s demand and especially pleaded the prescription of five years.
The case was tried on the 20th of October, 1890, on the exception of prescription.
After trial there was judgment sustaining the exception.
A motion for a new trial was overruled.
Erom the judgment plaintiff obtained a devolutive appeal.
The note is prescribed on its face. It devolves upon the plaintiff to 'take it out of the rule of prescription by proving previous acknowledgments and interruption.
The principal witness, a member of the late firm of Hogan & Co., interested as an owner, testifies that the defendant at various times between 1885 and 1888 has assured him of his willingness to deliver the property mortgaged in part payment of the debt.
The defendant as a witness emphatically denies having made any statement to this witness acknowledging the claim, since the 15th day of March, 1885, at a time more than five years before service in the present suit.
The defendant unhesitatingly contradicts plaintiff’s witness, and says unhesitatingly that he was not in the city of New Orleans at any time during the years stated, and that he never was at any time present at the commission house named.
The testimony of a witness was introduced to corroborate plaintiff’s witness.
He testifies about hearing a conversation but is not fortunate in the statement of the dates and does not materially corroborate the testimony on important points.
An acknowledgment to interrupt prescription must be direct, specific and absolute. A clear acknowledgment oí the right. Lackey vs. Macmendo, 9 An. 17. It is not proven that prescription has been interrupted, and the case with the evidence before the, court is with defendant.
New Trial.
A motion for a new trial was filed and refused.
It is is alleged in the motion (under oath) that since the trial and' since, judgment, evidence has been discovered important to the cause-(showing promise to pay the note). Two letters are annexed and a statement made of testimony discovered.
We deem it equitable and just to remand the case to enable plain - tiff to prove legal interruption, if the defendant has made the acknowledgments alleged.
If, as sworn to in his application for a new trial, plaintiff has since-judgment was rendered found out that the defendant has, at stated times, asserted Ms indebtedness to plaintiff to protect himself frprn the annoyance' of Ms other creditors, and that his assurances, about, this indebtedness had impressed them with the uselessness of taking-steps to have property seized and sold already mortgaged for as, much as it was worth, no one will be injured by remanding the case. Norres vs. Hayes, 42 An. 860. If the defendant has derived an advantage, and has acknowledged the debt -as alleged under-oath, he should bear the burthen.
If he obtained -immunity from the annoyance of his creditors by-specially invoking this mortgage indebtedness, the opportunity will;,
It is therefore'ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the cause be remanded for further proceedings, according to law, and that defendant and appellee be taxed with the cost of appeal, and those of the lower*court to await final judgment.
