Opdyke v. Corles

Supreme Court of Louisiana

Opdyke v. Corles

16 La. 569

CourtSupreme Court of Louisiana

DecidedDecember 15, 1840

StatusPublished

Cited by1 cases

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Bluebook

Opdyke v. Corles, 16 La. 569 (La. 1840).

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Opinion

Simon, J.,

delivered the opinion of the court.

This is a very plain case, which appears to have been brought up for the purpose of delay. The appellant’s counsel, however, urges (and this is the only point presented to our consideration,) that his client ought not to have been condemned to pay the costs of protest, because such protest is not necessary to hold the drawer of an inland bill or note, or [570]*570any of the parties thereto liable: Be minimis non curat lex; and had not the defendant intended to delay the execution of the judgment appealed from, he should have submitted to the decision of the lower court. We are, however, disposed to satisfy him on the point in controversy ; and although a regular protest was useless to bind the drawer, and, perhaps, not necessary to hold the other parties to the note sued on, still, we think, it was useful to the plaintiff, who had a right to have it regularly protested for non-payment, in order to entitle himself to the legal interest on the amount thereof, from the day of the protest: 1 Moreau’s Digest, 92, sec. 2, of an act of the 14th February, 1821.

The holder of a negotiable note or bill of exchange, has a right to have it protested against the maker, drawer or any of the parties, even when it would not be necessary to do so, to hold them liable; because it entitles him to claim interest. Where the defendant waives delay, and submits the case readily for decisión, the damages for a frivolous appeal will he mitigated and reduced.

The plaintiff prays the affirmance of the judgment, with ten per cent, damages, as for a frivolous appeal; but considering that this case has been submitted, out of its turn, with the consent of the defendant, and that had said defendant declined to submit it, he might have obtained a further delay, which he readily waived, we shall only allow the plaintiff five per cent, damages.

It.is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs and five per cent, damages.

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Simon, J.,

delivered the opinion of the court.

This is a very plain case, which appears to have been brought up for the purpose of delay. The appellant’s counsel, however, urges (and this is the only point presented to our consideration,) that his client ought not to have been condemned to pay the costs of protest, because such protest is not necessary to hold the drawer of an inland bill or note, or [570]*570any of the parties thereto liable: Be minimis non curat lex; and had not the defendant intended to delay the execution of the judgment appealed from, he should have submitted to the decision of the lower court. We are, however, disposed to satisfy him on the point in controversy ; and although a regular protest was useless to bind the drawer, and, perhaps, not necessary to hold the other parties to the note sued on, still, we think, it was useful to the plaintiff, who had a right to have it regularly protested for non-payment, in order to entitle himself to the legal interest on the amount thereof, from the day of the protest: 1 Moreau’s Digest, 92, sec. 2, of an act of the 14th February, 1821.

The holder of a negotiable note or bill of exchange, has a right to have it protested against the maker, drawer or any of the parties, even when it would not be necessary to do so, to hold them liable; because it entitles him to claim interest. Where the defendant waives delay, and submits the case readily for decisión, the damages for a frivolous appeal will he mitigated and reduced.

The plaintiff prays the affirmance of the judgment, with ten per cent, damages, as for a frivolous appeal; but considering that this case has been submitted, out of its turn, with the consent of the defendant, and that had said defendant declined to submit it, he might have obtained a further delay, which he readily waived, we shall only allow the plaintiff five per cent, damages.

It.is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs and five per cent, damages.

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Bluebook (online)

16 La. 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/opdyke-v-corles-la-1840.

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