The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-02-16
Supreme Court Decisions.


The following decisions were delivered by this
court yesterday. Present: Chief Justice Lude-
ling. Howell, Howe and Wyley. Absent Talia-
ferro. rHr0 GOOD
There are on the docket about 500 cases. and at
the rate of proceeding when shall those 500 cases
be got through with I'd. .--..
BY ASSOCIATE JUSTICE W. W. HOWE.
No. 2O49-Louisiana State Bank VS.. Yelverton
Csmmack. Appeal from the Thirteenth Judicial
District Court, parish of Tensas. Farrar Reeves
for plaintiff, and Collier Il Clinton for defendant
and appellant.
The curator of the defendants succession has
appealed from judgment against the defendant,
rendered upon bill Of exchange due April 18th,
1862, and founded on citation, of which service
was made August Sd, 1867; and has pleaded in
this court the prescription Of five years.
The appellee has moved to dismiss the appeal.
lat. Because ell the evidence adduced Is not in
the record, and the clerk who certiies the fact
that the record contains all the evidence adduced
was not clerk of the court when the case was
tIied, and cannot certify any such facts" and I'd.
Because the record contains no note of evidence,
statement Of facts, bill of exceptions nor assign
ment of errors of law upon tbs face Of the record,
whereby this court can review the decision ap-
pealed FROM"
AS to the ground first quoted, the certificate
of the clerk appears to be regular, and we lind
nothing in the record of which this court take
notice, to show that the certificate is untrue, or
that the clerk had no power to make 1t.
The second ground for the dismissal OF the ap-
peal cannot prevail.
The record is certified TO contain all the test.
mony adduced, documents filed and proceedings
had and the deposition of the only witness sp.
pears to have been taken in writing. No state
ment of facts could therefore be required; @. P,
COL, &C., SOC, Goth An, 2l3. Nor is an assignment
Of error absolutely necessary In this case, Ia L.,
81, and in this case we see no necessity OF bill
of exceptions.
The appellant comes before Us with plea
which is permitted by law, and which we must
consider. BY article 800 of the Code OF Practice
it is provided that although in general parties
before the Supreme Court are not allowed to plead
other matters than those which were before the
inferior court, nevertheless it may depart from this
rule when the exception taken is one of those
which may be pleaded at any period of cause, and
the proof Of it appears by the mere examination
of the record. Thus prescription may be pleaded
before the Supreme Court, when the proof of it
appears on the face Of the proceedings In the
lower court"
These proceedings have been correctly reported
10 us-eo declares the certificate OF the clerk.
The right to plead prescription here, and the
validity of the plea, do not necessarily depend on
q note OF evidence, o bill of exceptions, or an
assignment of error. If from mere examina-
ton of the record. regularly certified TO US, we
find that the debt sought TO be enforced Is pre-.
scribed, we must decline to dismiss an appeal
which has been taken in regular form, and sus-
tain the plea of prescription"
In this case we find, from mere examination
of the record, that the debt sued on was pre-
scribed by the lapse of more than five years be-
tween the maturity of the bills and the service OF
citation.
The appellee has not asked that the cause be
remanded for trial on this plea. 1t Is, therefore,
| ordered and adjuged that the Judgment appealed
| from be reversed. and that there be Judgment IN
favor of Robert Murdoch. curator OF the success
| sion of Yelverton Cammsck, deceased, with costs
| in both courts.
$500. BY ASSOCIATE JUSTICE HOWELL.
No. 2o4S, succession of j. J. Tyson. Appeal from
| the District Court, parish of Tensas.
Edwin Morris, VIM. Tslbert, J. G. Kyle and W
| r. Eyarts as creditors of the succession OF j. j.
| Tyson, deceased, took rule on Samuel Lee, ad
| mipistrator. TO show cause why he should not be
removed from his Office and Ransom Hill appointed
| In his stead Lee answered that he could show nc
cause and that he desired the rule TO be made alb
| solute. The court accordingly rendered Judgment
| removing him and appointing Ransom Hill, lad
minisraiion of said succession in the place OF SAID
| Lee upon giving bond according to law where
upon Jas Trsbue, Dennis Long, Robt. J. Kyle and
Edwin Morris alleging themselves to be creditors
ofsaid succession. and agsrieved py saia aqgmen.
| appealed therefrom by petition, citing Ransom
| Hill only, who moves to dismiss the appeal OF
several grounds one of which is sufficient, to.wit
| That being no party to the suit, from 'ne jug
men, In which this appeal is taken, be cannon OF
| cited. nor made party as appellee 10 this court
This seems to be so clear as to require no reason
| ing. To entertain this appeal would be to take
| original jurisdiction of the only party sought e
be made appellee. Non conStdt tnat ne VIII e' q
make himself party 10 these remarkable ana IL
There beinp legally no appellee before Us thi
| appeal must necessarily be dismissed. 1t IS there
| fore ordered that the appeal herein be dismissed
| with costa.
| BY CHIEF JUSTICE J. T. LUDELING.
| No. I967-The State of Louisiana ex rel. Samue
1 fha nd n COur
| of the Parish OF Orleans
| Mandamus dismissed. p. A. Cousin d Bro. oh
tanned q Judgment against Samuel johnson 10
s56Os, with legal interest from sept. 81, ioos'
the Fifth District Court, and johnson apphed 10
and obtained an order for suspensive appeal
and he alleges under oath that within the legal dc
laws he furnished a bond for sn amount exceedln
one-half the sum be had been condemned 10 pay
with good and solvent security, as tne ID" e
quired. ,..,s o-ao
| frcm the district judge Commanding Johnson 70
| anpellapt. to show cause why the said appes
should not be dismissed, and after nearing ,n
| parties the appeal was dismissed. from IN
| order Diminishing the appeal johnson prayed Tor
tuspensige appeal, which the judge refused
grant.
mapdamus against the judge OF the Third Distrl'
Court, TO compel him to grant suspensive appe'
from the order Diminishing the appeal which he ha
In Justification of his conduct the district jude
gave the following reasons :.,,.
lst because the right OF deciding whether
appeal previously granted shall be suspensive
dsyolutive, is exclusively within the purview
, the court from which II was taken"
I'd. because the defendsu. having failed
furnish within the ten days following, the signir
|, of The judgment on the merits, the bond require
. by law, the appeal granted would not stay exec
3D.. because the decree ordering execution