Nichols v. Nichols

5 Rob. 175

• Court: Supreme Court of Louisiana
• Decided: June 15, 1843
• Status: Published

Opinion

Bullard, J.

The plaintiff alleges, that the defendant received from him a number of notes, under an agreement to collect the same, and to apply the proceeds to the payment of the plaintiff’s debts ; but that he has converted the same to his own use ; and, although often demanded, refuses to account either for the notes or the money. He, therefore, prays for judgment for the amount of said notes.

The defendant, after filing an exception which was overruled, answered that he was not in any manner indebted to the plaintiff, and that he has no right of action against him ; denying that the plaintiff had ever demanded a settlement of accounts of him, as agent; and averring, that he has always been ready to render such account. He further answers, that if the plaintiff ever had any claim against him, as alleged, he has lost the same by bringing suits against him in the District Court and in the City Court, since the -agency of the defendant has been cancelled, in which suits he did not include the present claim, whereby the same was extinguished.

The court rendered an interlocutory judgment, ordering the defendant, within ten days, to render an account of the moneys received by him, and paid by him on account of the plaintiff. This judgment having been notified to the defendant, on the 2d of April, and no account having been filed in obedience thereto, the plaintiff, on the 4th of May, took a rule on the defendant to show cause why he should not be ordered to pay the amount claimed, on the ground, that he had neglected to file an account within the time allowed by the court.

No cause being shown at the time appointed, the rule was made absolute, and judgment was rendered against the defendant for the amount "claimed in the petition.

A motion was made for a new trial, and overruled ; but, as it has not been insisted upon in this court, that the court erred in overruling the motion, we forbear to notice it any further.

We see no error in the proceedings, or judgment rendered in this case. The defendant had a fair opportunity to render an account, after the interlocutory judgment was given. Having failed to comply with that judgment, it was, in our opinion, regular to proceed to final judgment. The plaintiff, surely, was not obliged to institute a pew suit. The execution of the receipt sued upon was admitted by the pleadings.

Judgment affirmed.