Bank of Louisiana v. Lawless

Supreme Court of Louisiana

Bank of Louisiana v. Lawless

3 La. Ann. 129

DecidedJanuary 15, 1848

StatusPublished

This text of 3 La. Ann. 129 (Bank of Louisiana v. Lawless) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Louisiana v. Lawless, 3 La. Ann. 129 (La. 1848).

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Opinion

The judgment of the court was pronounced by

Slidell, J.

After personal service upon the defendant of a citation, which appears to us to have been in due form, and of a copy of the petition in which the clerk omitted to state the date when the original was filed, (an omission which seems to us of no importance,) judgment by default was taken. Afterthis, an exception was filed by the defendant, alleging what the defendant considered as informalities and defects in the petition and citation. This exception was evidently interposed forthe mere purpose of delay, and was in our opinion untenable, and was properly dismissed. The protest appeal’s to have been properly recorded, the certified copy was therefore properly admitted. The notary was authorised to make the demand by his deputy. See the Acts of 1844, p. 26. It was not necessary to prove the endorsement of the plaintiffs’ immediate endorsee, as the endorsement of the payee was in blank.

Although the note was originally binding on the defendant and R. C. Lawless jointly, it is satisfactorily proved as alleged in the plaintiffs’ petition, that defendant subsequently assumed to pay the entire debt; and the plaintiffs were entitled to the benefit of the assumption. Civil Code, 1896, 1884. Code of Practice, 35.

The defendanthaving become bound for the entire debt, it was unnecessary to join the co-obligor in the action. No notice of non-payment to the maker was necessary. Bradford v. Cooper, 1 Annual R. 325.

Although the allowance of ten dollars for notarial copies offered in evidence is not sustained by proof that so much had been paid for them, it is to be presumed that they cost something; and the amount, even if erroneously allowed, is too insignificant to justify a non-suit under the circumstances. If there was really an overcharge in this incidental item, and the attention of the court below had been specifically called to it, and the court had refused to correct it, there weuld have been some reason for expecting relief in this court.

Judgment affirmed.

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The judgment of the court was pronounced by

Slidell, J.

After personal service upon the defendant of a citation, which appears to us to have been in due form, and of a copy of the petition in which the clerk omitted to state the date when the original was filed, (an omission which seems to us of no importance,) judgment by default was taken. Afterthis, an exception was filed by the defendant, alleging what the defendant considered as informalities and defects in the petition and citation. This exception was evidently interposed forthe mere purpose of delay, and was in our opinion untenable, and was properly dismissed. The protest appeal’s to have been properly recorded, the certified copy was therefore properly admitted. The notary was authorised to make the demand by his deputy. See the Acts of 1844, p. 26. It was not necessary to prove the endorsement of the plaintiffs’ immediate endorsee, as the endorsement of the payee was in blank.

Although the note was originally binding on the defendant and R. C. Lawless jointly, it is satisfactorily proved as alleged in the plaintiffs’ petition, that defendant subsequently assumed to pay the entire debt; and the plaintiffs were entitled to the benefit of the assumption. Civil Code, 1896, 1884. Code of Practice, 35.

The defendanthaving become bound for the entire debt, it was unnecessary to join the co-obligor in the action. No notice of non-payment to the maker was necessary. Bradford v. Cooper, 1 Annual R. 325.

Although the allowance of ten dollars for notarial copies offered in evidence is not sustained by proof that so much had been paid for them, it is to be presumed that they cost something; and the amount, even if erroneously allowed, is too insignificant to justify a non-suit under the circumstances. If there was really an overcharge in this incidental item, and the attention of the court below had been specifically called to it, and the court had refused to correct it, there weuld have been some reason for expecting relief in this court.

Judgment affirmed.

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Bluebook (online)

3 La. Ann. 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-louisiana-v-lawless-la-1848.