Erwin v. McKinney

1 Rob. 217

• Court: Supreme Court of Louisiana
• Decided: December 15, 1841
• Status: Published

Opinion

Martin, J.

The plaintiff complains that the first court illegally made absolute a rule which defendants had obtained against him, to show cause why satisfaction should not be entered on two judgments he had obtained against the defendants. He has built his hope of relief at our hands on several grounds, one of which only it suffices to examine. The rule was obtained on the 29th of June, to show cause on the 1st of July, when it was made absolute in the absence of the plaintiff. By one of the rules of the District Court, which comes up in the record, it is provided that: ‘ In all. cases where notice is required, and no time specified in the Code, three days shall be held sufficient, except in cases where the depositions of witnesses are to he taken under a commission.’

Peyton and J. W. Smith, for the appellant. McKinney, for the defendants.

The 30th of June was the only intervening day between the 29th, on which the rule was obtained, and the 1st of July, on which it was made absolute. It is therefore clear, that the plaintiff had not the three days notice, which the above rule requires; and as the record shows that he was absent on that day, nothing authorises the inference that he waived his right thereto. The rule was therefore erroneously made absolute.

It is therefore ordered that the judgment of the District Court, making the said rule absolute, be reversed, and that the rule of the 29th July be discharged ; the defendants and appellees paying the costs of the appeal.