Carlile v. Holdship

15 La. 375

• Court: Supreme Court of Louisiana
• Decided: May 15, 1840
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

This is an action against the endorser of a promissory note. The plaintiff having died after issue joined, it was ordered that the curator of his estate be made a party. Judgment having been pronounced in his favor, the defendant appealed. He relies on two bills of exceptions. From the first, it appears that the defendant’s counsel objected to the case being taken up for trial until the curator, who had been made a party on the suggestion of the plaintiff’s death, had taken some step in the case; that, until then, he had not appeared in any manner, and that the defendant was not notified that the original plaintiff was dead, and he could not avail himself of any plea which he might have against the curator, or the heirs. But the court permitted the plaintiff to proceed to trial, the judge adding that the counsel had stated himself to be counsel for the curator.

Where the curator ofa deceased plaintiff is made a party by order of court, after the contestatio UtiSy and is represented by counsel, the case may proceed to trial without any other delay or notice, and the proceedings will be regular. Where the notary states that he “demanded payment of the note at the bank therein specified,” it is a sufficient legal demand.

In support of this bill of exceptions, the counsel relies upon the case of Liquet's Heirs vs. Peirce, 5 Louisiana Reports, 363. In that case, after the death of the original plaintiff, his heirs came in by a supplemental petition, and the court held that it was irregular to proceed to trial, without service of a copy of the heirs’ petition. In the present case, the curator of the deceased plaintiff’s estate, was made a party by order of court, after the contestatio litis, and appears to have exhibited his authority from the Court of Probates, and was represented by counsel.

We think the proceeding regular, and that the court did not err.

The second bill of exceptions was taken to the introduction of a protest of the note, which had been objected to on the ground that it did not show that the note had been presented for payment. The counsel relies on the case of Warren vs. Briscoe, 12 Louisiana Reports, 473.

The notary states in his protest, that he “demanded payment of the said noteat the bank therein specified.” It appears to us as it did to the district judge, that it is to be inferred, from the whole tenor of the protest, that the note was produced and presented for payment at the time and place specified therein. In the case of Warren vs. Briscoe, the notary states, merely, that “he went to the Planters’ Bank, Natchez, and was informed by the teller there was no funds,” &c. No demand was certified, and it could not be inferred, from any part of the protest, that the notary took the note with him, much less, that he had made any demand.

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