Stubbs v. Fleming

Supreme Court of Louisiana

Stubbs v. Fleming

66 So. 225, 135 La. 796, 1914 La. LEXIS 1851

CourtSupreme Court of Louisiana

DecidedJune 29, 1914

DocketNo. 20660

StatusPublished

Cited by4 cases

This text of 66 So. 225 (Stubbs v. Fleming) 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

Stubbs v. Fleming, 66 So. 225, 135 La. 796, 1914 La. LEXIS 1851 (La. 1914).

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Opinion

MONROE, C. J.

Defendant having applied for a writ of review in this matter, and this court having ordered that same be granted, plaintiff now moves that the order be rescinded and the writ recalled, for the reason that the application therefor—

“was not sworn to in accordance with law, and especially Act No. 191 of 1898, * * * the affidavit * * * having been made by the attorney for the applicant, instead of the applicant himself, with nothing to show that the applicant, Glen Fleming, was absent or incapable of making affidavit in person.”

We are of opinion that the motion must be sustained. This court has held that the affidavit, in cases such as this, must be made by the litigant, if present in the parish and capable of making it. North British, etc., v. Sims, 132 La. 412, 61 South. 509. By no rule of construction could it be held that, though (as appears to have been the case here) the litigant be a resident of the parish where the court to which the application is presented holds its sessions, the affidavit can properly be made by his attorney, because he (the attorney) is in a distant parish.

The order herein made is therefore rescinded, and this application is dismissed, at the cost of the applicant.

O’NIELL, J., dissents.

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MONROE, C. J.

Defendant having applied for a writ of review in this matter, and this court having ordered that same be granted, plaintiff now moves that the order be rescinded and the writ recalled, for the reason that the application therefor—

“was not sworn to in accordance with law, and especially Act No. 191 of 1898, * * * the affidavit * * * having been made by the attorney for the applicant, instead of the applicant himself, with nothing to show that the applicant, Glen Fleming, was absent or incapable of making affidavit in person.”

We are of opinion that the motion must be sustained. This court has held that the affidavit, in cases such as this, must be made by the litigant, if present in the parish and capable of making it. North British, etc., v. Sims, 132 La. 412, 61 South. 509. By no rule of construction could it be held that, though (as appears to have been the case here) the litigant be a resident of the parish where the court to which the application is presented holds its sessions, the affidavit can properly be made by his attorney, because he (the attorney) is in a distant parish.

The order herein made is therefore rescinded, and this application is dismissed, at the cost of the applicant.

O’NIELL, J., dissents.

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Bluebook (online)

66 So. 225, 135 La. 796, 1914 La. LEXIS 1851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stubbs-v-fleming-la-1914.

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