Canal Bank v. McGloin

10 La. Ann. 240

• Court: Supreme Court of Louisiana
• Decided: April 15, 1855
• Status: Published

Opinion

Voorihes, J.

The defendant is sued on his nine promissory notes, three of which are payable to the order of the plaintiffs, and the other six to the order of and endorsed by Laurent Millaudon and John Slidell. These notes were given in part payment of certain lots of ground conveyed to the defendant by the plaintiffs, Samuel Kohn, Laurent Millaudon and John Slidell, and identified with the authentic act of sale thus made, a copy of -which,, together with said notes, is annexed to and made a part of the plaintiff’s petition.

The record shows that a judgment by default was regularly taken against the defendant, and confirmed, as recited in the final jndgment, “ by due proof of the plaintiff’s demand.” The defendant has appealed from that judgment, and claims its reversal on various grounds.

It is urged by his counsel that “ the evidence on file consists merely of the testimony of plaintiff’s attorney — that the signatures of the payees and endorsers of the notes sued on are genuine.” It is argued at bar by the counsel, that the witness was incompetent to make such proof, on the ground of his being employed as the plaintiff’s attorney in the cause. It is clear that questions touching the competency of witnesses must be determined in the first place by the inferior court, whose decision in this respect' can only be revised by this court on a bill of exceptions. The other objections urged are: 1st. “ that neither the notes nor mortgage act were introduced in evidence to confirm the default — they are not filed in evidence and the implication derived from the testimony of plaintiff’s attorney that they were offered to and received by the court, cannot be accepted in lieu of the official certificate of the keeper of the record, and his evidence does not appear to be taken in open Oourt. The notes, acts of protest and deed of sale appear to be noted by the Olerk as filed with the petition. This, coupled with his certificate that the record contains all the documents filed and evidence adduced, affords, in our opinion sufficient evidence showing that the plaintiffs have substantially brought themselves within the requirements of the law to entitle them to a judgment. We do not think that the second and third

* objections urged by the defendant are tenable. It is clear that the signature of the maker to the notes is verified by the authentic act of sale, which also establishes the plaintiff’s capacity. The two last objections are equally untenable. If available at all-as matters of de-fence, and not apparent as “ errors on the face of the record, they should have been specially pleaded in the inferior Oourt.”

It is therefore ordered and decreed that the judgment of the District Oourt be affirmed with costs.

The third objection is that theie were no reasons assigned by the District Judge for his opinion. The judgment commences as follows : “ On motion of E. A. Bradford, Esq., of counsel for plaintiff, and on producing tu the Court due proof of plaintiff’s demand. It is ordered &cM &c.” [Rep.]