No. 7205 | La. | May 15, 1881
The opinion of the Court was delivered by
In the ease of Workingmen’s Accommodation Bank vs. ’ Geo. T. Converse et al, decided by this Court and reported in 29 An. 369, the then plaintiff, as a corporation, brought suit against the defendants as principal and surety on the bond of a defaulting .paying-teller. The
The present plaintiff brings this action, on the same bond, against the same defendants, alleging that it had become the legal proprietor of the rights and claims arising upon said bond, by reason of a certain notarial act passed before Andrew Hero, Jr., notary, on January 13,1874, and by reason of its own incorporation by a legislative act passed on March 28th, 1874.
By express and proper pleadings the defendants put at issue (1st) the corporate capacity of the plaintiff, and (2d) its right to stand in judgment on the bond sued on.
It became necessary for plaintiff to establish, by affirmative proof, as an essential part of its case, both'its corporate capacity, and its right to sue on’the bond.
Counsel for defendants, in his oral argument, called our attention to the entire absence of evidence upon these essential points, and demanded the affirmance of the judgment.appealed from on that ground.
Neither the plaintiff’s charter nor the act before Hero, notary, were offered in evidence.
The charter of plaintiff, although a legislative act, is a private statute, which requires to be offered in evidence in order to have effect in judicial proceedings. Such was the express decision of this Court in the case of Mandère vs. N. O. Savings Institution, 28 An. 415, which is in harmony with sound jurisprudence. 1st Greenleaf on Ev.; Dwarris on Statutes.
There is thus no proof whatever of plaintiff’s corporate capacity, which would be sufficient to abate the'presenfc action.
There results an equal absence of evidence in support of the allegations of its petition touching its proprietorship of the claim sued on. This last defect was sought to be remedied by the offer of an act purporting to be signed by the members of the original association, after the institution of this suit, maintaining and confirming the right of the present plaintiff to stand in judgment. This act is signed by a number of persons, but is accompanied by no proof to show that the persons signing were really members of the original association, or that they were all of said members, or what proportion of said members they were.
It could, therefore, form no basis for a judgment in favor of plaintiff for the whole or any fixed proportion of the claim asserted by it under the bond.
The judgment appealed from was one of nonsuit, and, for these reasons, it is affirmed at appellant’s costs.