Cormier v. Soye

28 La. Ann. 543

• Court: Supreme Court of Louisiana
• Decided: May 15, 1876
• Docket: No. 5890
• Status: Published

Opinions

Taliaferro, J.

This is an injunction suit to stay the sale of certain mortgaged property belonging to the plaintiff and seized under executory process by the defendants: The judgment of the lower court was 'in favor of the defendants, and the plaintiff appealed.

The plaintiff assigns as error patent on the record the refusal of the judge a quo to grant plaintiff a trial by jury, and prays for that reason alone that the judgment appealed from be set aside and the cause remanded for trial before a jury as prayed for.

The facts seem to be that Madam Cormier executed two promissory notes on the twenty-fourth of May, 1870, payable to her own order and indorsed by her, payable one year after date, each note for the sum of three thousand dollars. These notes were delivered to Soye for her indebtedness to him, and to secure the payment of these notes she executed a mortgage on a lot of ground and buildings thereon situated in the city of New Orleans.

On the fifth of June, 1873, she signed an act purporting to be a.mortgage on another lot of ground with the buildings upon it, for the purpose of further securing the payment of the two notes given the twenty-fourth of May, 1870. When the defendants proceeded via executiva against these two lots of ground and caused them to be seized, the plaintiff enjoined the sale on the ground that her signature to the act of the fifth of June, 1873, was obtained by fraud and false representations on the part of the defendants; that upon false statements to her as to the object in view in requiring her signature to the act, and without reading it or being given an opportunity to read it, and by threats of foreclosing the mortgage she had executed previously, she signed the act in ignorance of what it was; that she never consented to give a mortgage on property when she put her signature to the act of the fifth, of June, 1873; that the defendants’ agent brought the act to her house, representing that it was an agreement to postpone the foreclosure of the mortgage executed by her on the twenty-fourth of May, 1870; that the notary whose name appears to the act was not present when it was signed, and that she never appeared before him to execute the said act as is falsely stated theroin.

The plaintiff makes affidavit to the truth of all the allegations of her petition. In a supplemental petition, containing no new matter, she prays for trial by jury.

The prominent issue in this case is the question of fraud. It has been repeatedly decided by this court that it is peculiarly within the province of a jury to determine questions of fraud, and wo think the judge erred in refusing a jury, trial.

It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered that this case bo remanded to the court of the first instance to be tried ele novo, with instructions to the judge a quo to grant a trial by jury, as prayed for by the plaintiff in her supplemental petition. It is further ordered that the defendants in injunction pay the costs of this appeal.