McDuffie v. Douglas

Louisiana Court of Appeal

McDuffie v. Douglas

1 Gunby 56

DecidedJuly 1, 1885

StatusPublished

This text of 1 Gunby 56 (McDuffie v. Douglas) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDuffie v. Douglas, 1 Gunby 56 (La. Ct. App. 1885).

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Opinion

Farmer, J.

Where an exception is filed that plaintiff has abandoned a former injunction, and instituted this suit without paying the costs of the prior suit, and no evidence is taken on the trial of the exception, it will be overruled.

2. The direct revocatory action must be resorted to by an injured creditor to annul any real contract of the debtor, however fraudulent it may be. 33 An. 29; 30 An. 374. But where such contract is attacked collaterally, the party interested may waive his right to object, and contest by way of injunction all tbe questions that could be raised in a direct action. 15 An. 532.

3. The revocatory action is prescribed in one year from the date of the creditor’s judgment, or in one year from the date of the fraudulent contract, if it be made after the rendition of the judgment. C. C. 1987.

4. Where a plea of prescription is filed in the lower court, after the evidence is closed, if defendants wished to introduce evidence to interrupt prescription, they should have asked for a [57]*57new trial on that ground. They are not in an attitude to require the application of C. P. 902.

5. To support a giving in payment of cattle, the burden of proof is on plaintiff to show’ a fixed price and actual delivery. Constructive or symbolic delivery is not sufficient in such a case.

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Farmer, J.

Where an exception is filed that plaintiff has abandoned a former injunction, and instituted this suit without paying the costs of the prior suit, and no evidence is taken on the trial of the exception, it will be overruled.

2. The direct revocatory action must be resorted to by an injured creditor to annul any real contract of the debtor, however fraudulent it may be. 33 An. 29; 30 An. 374. But where such contract is attacked collaterally, the party interested may waive his right to object, and contest by way of injunction all tbe questions that could be raised in a direct action. 15 An. 532.

3. The revocatory action is prescribed in one year from the date of the creditor’s judgment, or in one year from the date of the fraudulent contract, if it be made after the rendition of the judgment. C. C. 1987.

4. Where a plea of prescription is filed in the lower court, after the evidence is closed, if defendants wished to introduce evidence to interrupt prescription, they should have asked for a [57]*57new trial on that ground. They are not in an attitude to require the application of C. P. 902.

5. To support a giving in payment of cattle, the burden of proof is on plaintiff to show’ a fixed price and actual delivery. Constructive or symbolic delivery is not sufficient in such a case.

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Bluebook (online)

1 Gunby 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcduffie-v-douglas-lactapp-1885.