McFeeley v. Osborn

70 La. Ann. 471

• Court: Supreme Court of Louisiana
• Decided: August 15, 1867
• Docket: No. 102
• Status: Published

Opinion

Tabiaeebbo, J.

The defendants appeal from a judgment rendered by the District Court, decreeing the restoration of a judgment alleged to have been obtained against them by the plaintiff at the October term of the Court, either in the year 1861 or the year 1862. The proceeding is taken in this ease under an act of the Legislature, approved February 28th, 1866, prescribing the mode by which the records of the parish of Bapides, destroyed by fire in 1864, may be reinstated. The defendants answer the plaintiff’s petition, by admitting that a judgment as set forth by the plaintiff was rendered against them at the October term, 1862, of the District Court of the Ninth Judicial District, but aver the invalidity and nullity of the judgment on several grounds.

We think the declaration, in the plaintiff’s petition, supported by his affidavit, that such a judgment existed, and that it was destroyed by fire, coupled with the admission of the defendants, fully authorized the judgment of the Court. The act of the Legislature referred to, expressly limited the defendants to the simple issue of the previous existence or non-existence of the alleged judgment, and it was not admissible for them, in this case, to raise the question of its validity. The testimony shows that a District Court was held in the parish of Bapides, in the years 1861 and 1862, at the October term. The allegation of the plaintiff, under oath, is, that the judgment was rendered at either the October term, 1861 or 1862. The decree of the Court establishes that the judgment was rendered in 1861.

We see no objection to the judgment appealed from on this account, especially as the allegation of defendants, that the time of the rendition of the judgment sought to be restored, was October, 1862, is not supported by oath.

There is no force in the exception, that the case was not decided in open Court.

The act of the Legislature, on the subject, expressly authorizes the Judge to decide such cases in Chambers.

It is therefore ordered, adjudged and decreed, that the judgment of District Court be affirmed, -with costs in both courts. '