Oakey v. Murphy

1 La. Ann. 372

• Court: Supreme Court of Louisiana
• Decided: November 15, 1846
• Status: Published

Opinion

The judgment of the court was pronounced by

Rost, J.

In this case, which is an action by the holder of a promissory note againstthe maker, the plaintiff filed a supplemental petition, in which he 'alleged that a judgment had been rendered in his favor, at the time of the institution of his suit, on the note sued on, in the Circuit Court of the United States for the southern district of Mississippi. On a judgment by default being taken, it was confirmed on the evidence of this judgment rendered in Mississippi. So far from the judgment proving the right of the party to recover on the note, it establishes the reverse, inasmuch as it is a merger of the note. Abat v. Buisson, 9 La. 419. Mackie et al. v. Cairnes, 2 Martin N. S. 599. 3 Blaekstone’s Com. 398. The plaintiff has lost his right of action on the note, and he has no right to amend his petition by an allegation which extinguishes it. Code of Practice, art. 419. Pie ought to have brought his suit on his judgment.

It is therefore ordered that the judgment of the District Court be reversed, and that the plaintiffs petition be dismissed, with costs in both courts.