Chaffe v. Thornton

28 La. Ann. 837

• Court: Supreme Court of Louisiana
• Decided: July 15, 1876
• Docket: No. 644
• Status: Published

Opinion

Ludeling-, C. J.

This is a suit on a promissory note secured by the vendor’s privilege and a mortgage, with a stipulation to pay attorney’s fees and costs.

The defendant filed an exception in the lower court, alleging that the plaintiff had not alleged his residence as the law required. The judge a quo sustained the exception, but allowed the amendment to be made instanter and without service of the amended petition. The petition alleged that the plaintiff resided in the city of New Orleans, without ■saying in the State of Louisiana. If the judge erred, it was in sustaining the exception. The amendment was properly allowed instanter and without service. Courts will not exact the performance of vain things. ‘The service of the amended petition would have been a useless formality.

On the merits, we think the judgment condemning the defendants in solido correct. The note declares that “we, or either of us, promise to pay,” etc.

The 'allowance of the attorney’s fee was proper in this case, but we think, instead of $206 65, the sum should be $166 66§, the amount claimed in the petition.

It is therefore ordered that the judgment of the lower court be amended by reducing the sum allowed as attorney’s fees from $206 65 to $166 66§ ; and that, as thus amended, the judgment be affirmed. The costs of appeal to be paid by the appellees.