Cupples v. Cobb

1 Gunby 29

• Court: Louisiana Court of Appeal
• Decided: July 1, 1885
• Status: Published

Opinion

Clinton, J.

This was a suit on a release bond given in a casé where the debtor, after releasing the property attached, surrqnr dered, and was discharged in bankruptcy. The defendant herein, when first sued, pleaded the prescription of five years and other defenses, and the District Judge rendered judgment sustaining the plea of prescription, “ b3’’ reason of the law and the evidence,” but concluded the judgment as follows: “ and that there be judgment in favor of defendant as in case of non-suit.” On appeal to the Circuit Court the Judges disagreed, and the judgment was affirmed under Art. 101 of the Constitution, the Circuit Judges declaring, however, that the judgment was one of non-suiti Plaintiff thereupon re-instituted his suit, and the plea of res adjudicata was filed, which was overruled by the District Judge. Held by the Circuit Court: The plea should have been sustained ; maintaining the plea of prescription was a final and perpetual bar to the plaintiff’s suit. The words of the former judgment are clear and unambiguous, and construing them so as to give any effect to the judgment, we must conclude that the concluding words were inadvertent and of no effect. It is impossible to construe a judgment sustaining a plea of prescription as one of non-suit. 6 An. 181.