Cooper v. Polk

2 La. Ann. 158

• Court: Supreme Court of Louisiana
• Decided: February 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced by

Slideli, J.

This suit is brought upon an account containing several items. For a portion of them it is quite clear that the appellant, William Polk, is not answerable, being debts of T. G. Polk alone. We shall confine our attention to the items which are based upon three bills of exchange drawn by T. G. Polk and Wm. Polk, upon the plaintiffs, and which they contend they accepted for the accommodation of the drawers. These bills of exchange are not obligations in solido; on their face the liability is joint. 5 La. 122.

* Wm. Polk being sued alone, contended, by an exception, that T. G. Polk should have been made a party defendant. T. G. Polk was not a resident of Louisiana, and was not present in the State. If it be conceded that, in such a case, he was a necessary party, it is evident that there was no other way in which he could be made even a formal party, except by the appointment of a curator ad hoc to represent him. The plaintiffs could not be deprived of all remedy against Wm. Polk, because his coobhgorwas an absentee.

After the exception was sustained, and a curator thereupon appointed to represent T. G. Polk, the appellant then excepted that T. G. Polk was not properly cited, because the citation was addressed to him, and not to the curator ad hoc. The objection seems to us unsound. It was immaterial whether the address was to the curator, or to the person whom the curator represented. It was properly served on the curator, for a service upon T. G. Polk was an impossibility.

At the time of filing his answer, the defendant, Wm. Polk, applied to the court for an order upon the plaintiffs, to produce in open court their commercial books. This order the court refused, but no bill of exceptions was taken, and the defendant subsequently proceeded to the trial of the cause without any objection in this respect. After this tacit acquiescence in the refusal of the order, it cannot be considered here. There is, however, a broader ground upon which the point may be determined. When a party to a cause lives out of the parish where the court is held, we cannot recognize the right of his adversary to comP6^ to bring all his commercial books from his domicil, to the seat of justice where the litigation is pending. It is true that the language of the Code of Practice (arts. 149, 473) is general; but if the interpretation we are asked to give be sound, then a merchant in New York or London might be compelled by his debtor to bring his books to Louisiana. Such a hardship imposed upon litigants, wauld make the relations of a factor with a planter, or of amei-chant generally with his cox-respondents, very onerous, and is not to be sanctioned. The x-ight given by law to a litigant, to draw testimony from the books of his advex-sax-y, must receive a reasonable construction, and may be fully enjoyed without a resort to means which would operate so seriously to the detriment of commex-ce. The defendant might, in the interrogatories propounded by him to one of the plaintiffs, have required him to annex to his answers copies of the accounts; or, if unwilling to rely upon the conscience of his adversax-y, the court might have been called upon to'issue a commission; under it witnesses might have examined the plaintiffs books, and made sworn copies from them. The books themselves mighthave been x-equired to be px-oduced before the commissioner; the authenticity of the books and the coi-rectness of the copies might have been fully ascertained ; and it would undoubtedly have been the duty of the plaintiffs, under the order of the court, to give the fullest facilities to such examination.

We do not consider itnecessax-y to decide upon the exception, raised to the admissibility of certain testimony taken under commission, by reason of alleged defects of form. The joint liability upon the accommodation acceptances is established, independently of that testimony.

The claim by the defendant, that the proceeds of certain shipments made by T. G. Polk, should be first credited upon Wm. Polk's share of the joint liability upon the accommodation acceptances, is cleax-ly untenable.

Judgment affirmed.

Tho first of the bills of exchange was in these words:

“ Exchange for $1500. LaGrange, July 11th, 1842. Five months after date of this first of exchange, (second unpaid), pay to the order of D. B. Frierson & Co., fifteen hundred dollars, value received, and charge the same to account.

THOS. G. POLIC WM. POLK.

The other two bills were in the same form.