Gilbert v. Neal

Supreme Court of Louisiana

Gilbert v. Neal

2 La. Ann. 904

DecidedOctober 15, 1847

StatusPublished

This text of 2 La. Ann. 904 (Gilbert v. Neal) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilbert v. Neal, 2 La. Ann. 904 (La. 1847).

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Opinion

The judgment of the court was pronounced by

Kins, J.

The defendant having beeh sued as an" absentee, the present plaintiff, Gilbert,- was appointed by the court the curator ad hoc to represent him,- and’ defend'the suit. Subsequently the defendant retained Gilbert as his counsel’.' At the trial of the cause Gilbert was not present, but Whs represented by other counsel provided by'himself.

* In the final judgment rendered a sum of fifty dollars was taxed by the' court, as a fee to be paid by the defendant to his attorney, for his professional services rendered in defending the suit. The plaintiff, who was not present when the decree was1 rendered, is not shown to have assented to the sum' fixed by the court as his compensation, nor to have acquiesced subsequently in that part of the judgment; but, on the contrary, he appears previous to that date to have commenced the present action by attachment, churning $400 as his fee, for his services' under his professional engagement. To this claim the defendant opposed a plea of res judicata, averring that the plaintiff’s compensation had been finally determined by a judicial decree. The plea was sustained, and the plaintiff’s claim rejected. From that judgment the plaintiff has appealed.

The order of the court decreeing a sum to be paid to the plaintiff, who was no party to the suit, was not a judgment, and could not be enforced as such. It Was an ex' parte order, which the judge was without authority to grant. There Were no' parties before the court, between whom such a decree could be rendered. 9 La. 88. 11 Ib. 267. The plaintiff founds his claim upon his contract With the defendant. The evidence fixes the value of his services at $250; and for that sum we think he is entitled to a judgment.

The judgment of the District Court is therefore reversed. It is further ordered that the plaintiff recover of the defendant the sum of $250, and that he have the privilege of an attaching creditor upon the property attached. It is further ordered, that the defendant pay the costs of both courts.

The evidence shows that Mr. Gilbert was absont from indisposition. — R.

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The judgment of the court was pronounced by

Kins, J.

The defendant having beeh sued as an" absentee, the present plaintiff, Gilbert,- was appointed by the court the curator ad hoc to represent him,- and’ defend'the suit. Subsequently the defendant retained Gilbert as his counsel’.' At the trial of the cause Gilbert was not present, but Whs represented by other counsel provided by'himself.

* In the final judgment rendered a sum of fifty dollars was taxed by the' court, as a fee to be paid by the defendant to his attorney, for his professional services rendered in defending the suit. The plaintiff, who was not present when the decree was1 rendered, is not shown to have assented to the sum' fixed by the court as his compensation, nor to have acquiesced subsequently in that part of the judgment; but, on the contrary, he appears previous to that date to have commenced the present action by attachment, churning $400 as his fee, for his services' under his professional engagement. To this claim the defendant opposed a plea of res judicata, averring that the plaintiff’s compensation had been finally determined by a judicial decree. The plea was sustained, and the plaintiff’s claim rejected. From that judgment the plaintiff has appealed.

The order of the court decreeing a sum to be paid to the plaintiff, who was no party to the suit, was not a judgment, and could not be enforced as such. It Was an ex' parte order, which the judge was without authority to grant. There Were no' parties before the court, between whom such a decree could be rendered. 9 La. 88. 11 Ib. 267. The plaintiff founds his claim upon his contract With the defendant. The evidence fixes the value of his services at $250; and for that sum we think he is entitled to a judgment.

The judgment of the District Court is therefore reversed. It is further ordered that the plaintiff recover of the defendant the sum of $250, and that he have the privilege of an attaching creditor upon the property attached. It is further ordered, that the defendant pay the costs of both courts.

The evidence shows that Mr. Gilbert was absont from indisposition. — R.

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Bluebook (online)

2 La. Ann. 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-neal-la-1847.