Millaudon v. Foucher

8 La. 588

• Court: Supreme Court of Louisiana
• Decided: June 15, 1835
• Status: Published

Opinion

Bullard J.,

delivered the opinion of the court.,

A re-hearing having been allowed in this case, the counsel for the appellee has called our attention to tbe fact, that the notes on which judgment was rendered below, had become due before the answer was filed, and he contends that as the defendant did not specially except to the prematurity of the suit, he must be considered as having waived that exception which ought to have been pleaded a limine litis. In this position we think he is sustained by the provisions of the Code of Practice and the decision of this court in the case of Howard et al. vs. steam-boat Columbia. 1 Louisiana Reports, 420.

We concur with the court below in the opinion, that under the circumstances of this case it had a right to issue an attachment against the property of the absconding debtor. Having left the state never to return, bis creditors had a right to proceed by attachment in any court within whose jurisdiction he possessed property, and the exception to the jurisdiction of the court was properly overruled. But, we are still of opinion that the attachment ought not to have been, maintained after the answer to the merits on the part of the defendant, because it was issued without, a sufficient affidavit; while, therefore, we maintain the judgment for so much of the debt as was due when the answer was filed, we think ■ the attachment ought to be dissolved.

It is, therefore, ordered, adjudged and decreed, that the judgment heretofore pronounced by this court be set aside, and, it is further ordered, adjudged and decreed, that the judgment of the parish court, so far as it condemns the defendant to pay the sum of nine thousand eight hundred dollars with interest, costs, Sec., be affirmed; and, it is further ordered, that the attachment be set aside and dissolved, and that the appellee pay the costs of this appeal.