Malveaux v. Lavergne

10 La. Ann. 673

• Court: Supreme Court of Louisiana
• Decided: September 15, 1855
• Status: Published

Opinion

Merrick, C. J.

There is a motion in this case to dismiss the appeal. The judgment was signed and the appeal allowed at the May term of the District Court, 1854. It (the appeal) was made returnable at the next term of the Supreme Court of Opelousas. By law, this term commenced on the first Tuesday of September, but as there were not Judges enough present to form a quorum, the court, after being adjourned from day to day by one of the Judges, finally adjourned, no quorum having been present and no judicial business having been transacted by the court. On the second day of the term of the Supreme Court for 1855 the record was filed. The motion to dismiss is based on the alleged ground that the record ought to have been filed in this court at the time fixed by law for the last term of this court, and that more than one year had elapsed after the appeal was granted before the record was filed. The doctrine seems to be well settled, that where the term to which an appeal is made returnable entirely fails, the record m ly be filed at the next term. Wills' Heirs v. Lamothe, 10 L. R., 411.

The proof adduced in this case does not clearly establish the plea of prescription. The party who would avail himself of this plea, must establish it by proof. Andrews v. Rhodes, 10 R. R. 53.

The objection that the tract or lot of land was owned by commercial partners, is not tenable. The land did not properly enter into the commercial partnership, and we know of no law which withdraws real estate from the ordinary rules of law, merely because it is owned by persons composing a commercial firm. ■

In this instance one of the parties was a tutor when lie owned the one-half of the lots or tracts of land in controversy. This undivided half became subject to the tacit mortgage of the minors, and it was not defeated by the subsequent sale of the property at the suit of the creditors of the commercial firm.

There was no error in reference to the facts disclosed, in refusing the copy of the certificate of baptism certified by the priest of St. Charles Church, showing the age of one of the plaintiffs.- he priest has no legal authority to certify copies from the records of his church, and the copy offered was clearly inadmissible.

A careful examination of the record has not satisfied us that there is any error in the judgment of the court below in the matter complained of.

Judgment affirmed, with costs.