Rieder v. Theurer

Supreme Court of Louisiana

Rieder v. Theurer

6 Rob. 375

DecidedJanuary 15, 1844

StatusPublished

This text of 6 Rob. 375 (Rieder v. Theurer) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rieder v. Theurer, 6 Rob. 375 (La. 1844).

Pincite

Opinion

Martin, J.

The defendant is appellant from a judgment on his promissory note, the payment of which he resisted on an allegation that the note had been divided into four others. It appears by an endorsement on the back of the note, that the plaintiff had received from the defendant, after the maturity of the note, four smaller ones, amounting together to the sum due on that sued on, which the plaintiff declared would be, when paid, in full of the original note.

* This endorsement certainly precluded the plaintiff from suing on the original note, without tendering the four smaller ones. But he was not obliged, as the defendant states in his answer, to institute a suit on the smaller notes, or on any of them. Had the latter, instead of urging the plaintiff s obligation to do so, demanded that judgment should not be given against him, or that its execution should be suspended until the four small notes were returned to him, he might, perhaps, have claimed at our hands the costs of the suit in the Parish Court. That court ought, however, in our opinion, to have protected him from the danger of being sued by the endorsers of the plaintiff on the small notes. He is entitled to this relief at our hands, and it is our duty to amend the judgment in this respect. For aught that appears on the record, these notes may be afloat.

It is therefore ordered, that the'judgment be affirmed, with this amendment, to wit, that no executionshall issue thereon, nor shall the judgment be recorded in the office of mortgages, until the four [376]*376smaller notes enumerated on the back of the original one shall have been delivered to the defendant, or deposite! for him, duly cancelled, in the office of the Clerk of the Parish Court. The costs of the appeal to be paid by the plaintiff and appellee.

Canon, for the plaintiff. Eyma, for the appellant.

This action was instituted before the maturity.of the last of the four smaller notes.

Free access — add to your briefcase to read the full text and ask questions with AI

Martin, J.

The defendant is appellant from a judgment on his promissory note, the payment of which he resisted on an allegation that the note had been divided into four others. It appears by an endorsement on the back of the note, that the plaintiff had received from the defendant, after the maturity of the note, four smaller ones, amounting together to the sum due on that sued on, which the plaintiff declared would be, when paid, in full of the original note.

* This endorsement certainly precluded the plaintiff from suing on the original note, without tendering the four smaller ones. But he was not obliged, as the defendant states in his answer, to institute a suit on the smaller notes, or on any of them. Had the latter, instead of urging the plaintiff s obligation to do so, demanded that judgment should not be given against him, or that its execution should be suspended until the four small notes were returned to him, he might, perhaps, have claimed at our hands the costs of the suit in the Parish Court. That court ought, however, in our opinion, to have protected him from the danger of being sued by the endorsers of the plaintiff on the small notes. He is entitled to this relief at our hands, and it is our duty to amend the judgment in this respect. For aught that appears on the record, these notes may be afloat.

It is therefore ordered, that the'judgment be affirmed, with this amendment, to wit, that no executionshall issue thereon, nor shall the judgment be recorded in the office of mortgages, until the four [376]*376smaller notes enumerated on the back of the original one shall have been delivered to the defendant, or deposite! for him, duly cancelled, in the office of the Clerk of the Parish Court. The costs of the appeal to be paid by the plaintiff and appellee.

Canon, for the plaintiff. Eyma, for the appellant.

This action was instituted before the maturity.of the last of the four smaller notes.

Cite This Page — Counsel Stack

Bluebook (online)

6 Rob. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rieder-v-theurer-la-1844.