New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-04-14
cHE COURTS.
Eighth district Court.

| document was fled yesterday:
| The defendants came into court Dy the
| undersigned. their counsel, auo Tor aus"er
| to the rule taken on them IN the above en-
| titled case, to show cause why Wrlt o. pro.
hibition snould not issue il this case and
| say: D.
First-That the Sixth District Court for
| the parish of Orleans, by article eighty
! three of the constitution of the Stale OF
| Louisiana, was vested with jurisdiction IN
| all civil cases except probate. when the sum
| in contest is above 500; and that the said
proceedings in the said Sixth District Court
| were rghtfully instituted therein, under
| the said article of the constitution, and that
| the said Sixth District Court can not be
divested of its jurisdiction by any act OF the
| LEGISLATURE OF the State
Second-That the jurisdiction Of this hon
orable court, the eighth, under the author
isy of the act No. 2, approved March l6
| 1870, can not be exclusive, except in viola
| ton of the condition IN which the right TO
any office, State, parish or municipal, is in
| anv wav involved. Wherefore, they pray
the rule may be discharged. Leovy 4 Mon
roe and Judge Campbell OF counsel.
| State ex rel. II. s. McComb vs.. Jackson
Railroad, city Of New Orleans 81 a.. inter.
venors.-This case again came up for trial
Yesterday in the Eighth District Court, and
after argument was continued until tins
! morning at ten o'clock.
Mobile and Chattanooga Railroad VS.. City
ot New Orleans. Yesterday Mr.. JR. Beck
| with, city attorney, made a motion to dis
solve the injunction herein issued against
| the city, restraining it from interfering with
a certain portion of the levee at the foot OF
St. Joseph street, which has been fenced IN
| by the plaintiffs. In The motion it is alleged
! that if the fencing continues up 1t will Work
| irreparab!e injury to the city, and that 1t
| infrnges on the right of the corporation TO
the free use of the levee. The Judge took
the motion under advisement.
Madame de st. Romes vs.. Levee Steain
| Cotton Press.-In this case, wherein Judge
| Dibble made peremptory mandamns on w.
| c. G. Claiborne, to allow plaintiff to examine
the transfer books of the company, IN order
| to ascertain IL whose name are registered
| sixty-six shares of the company's stock
claimed By her, an appeal has been taken by
defendants to the Supreme Court.
Supreme Court of Louisiana
Succession Of Bernard Msrigny on oppo-
sition OF S. n. Westmore to ta0leau-Appeal
| from Second District Court, parish OF Or
| leans. February Il, lS70.-Chief Justice
Ludeling delivered the opinion Of the court;
The claim of the opponent IS resisted oy
the executor of the deceased on several
grounds. The District Court rejected the
claim on the ground that it was prescribed
by the lapse of five years.
| The opponent contends that the prescrlp.
tion was interrupted on the thlrtieth OF Jan
uary, 1868, by tue service OF citation on
| Mr. Mar gny in person. The executor, Oh
the other hand, claims that there was 70 in
terruptlon: /, Because the citation address
| ed to Mr. 5. de Marigny does not mention
the place of his residence. 2. 1t does not
express the place where the office OF the
CLERK Of the court is held. 3. 1t is signed
| Dy the Deputy Clerk. T. The Sherlh's return
shows that copy Of the citation, and not
the original citation was served on Mr..
Marigny. :,
seems to merit notice is the nrst-that the
defendants residence is not mentioned ia
the citation. The residence of the defend
ant is mentioned in the petition, copy
whereof was served on the defendant III
person, with the citation, and default wa;
taken against the defendant before hli
death.
We think the citation sufficient to inter
rupt prescription. II La. 534: Il La. 215; Il
r. 1873. ll9; 10 ii. 155; I A. 240; @. T. 1e3
l94, lS5, 1S6.
The executor further contends that even
if the citation did interrupt prescription the
voluntary abandonment OF Ais suit destroyed
the effect of the citation.
The cases cited by him establish that the
dismissal of sui. for the non. appearance
of the plaintiff, is not an abandonment OF
voluntary continuance of the suit An,
523. Norwood VS.. Devall--l4 An, p,
Sheldon VS.. Reynolds. We think the prin
cple is correctly stated in the case 13 An,
81; c. c., 1886. But even if Marigny had
not been cited, prescription was interrupted
by the citation Of Avegno and Gordon
ob'igors IN. s0lidO with Marigny. in suit on
the notes now sued on. G. c., 35l7.
1t is, therefore, ordered that the judgment
of the District Court be reversed; that the
plea of prescription be e/overruled, and the
case remsnded, to be proceeded with accord
ing TO law.
The following opinion in this case was
delivered on the eleventh instant, by Lude
ling, c. j.:
- An application for rehearing has been
made in this case, and we have been re-
uuested to decide the following question
First-Whether or not deputy clerk, IN
the parish Of Orleans, can sign citation,
l except il the absence or sickness OF the
clerk.
second-Whether the filing of an epposi
ton to an account for the purpose of having
8 claim recognized and ranked by the
court, is not an abandonment of former
suit, already pending in another court, IL
the sense OF article 3485 G. g.
| Deputy clerks may sign citations. whether
the clerk be present or not. In lo2l, Judge
Martin said: s'CIerks OF courts have hat
deputy clerks ever since the establishment
| of the American government in this country
and the act of 1917 appears TO have recog
nized such deputies. 1t seems to NE tot
late now to Call in question acts done oy
deputy clerks"
Judge Mathews: l believe i. may be lait
down as an undeniable fact that the clerks
: of the different courts Of the late Territorla
, government were in the constant habit
acting by deputies whenever their conve
| q
prevailed under the State government, with
l ont its legality or propriety having beer
, ever before called in question. 1t has beel
, o custom coeval with the American govern
ment of the country, and even were we t.
allow that it originated in error. the maxim
would then Gf in any case) apply, consnsuna
error, fact Jus. l am of opinion, with Judg
Martin, that this custom has been continued
g by the Legislature in the act (lSl7) relativ
o to deputies Of officers of our courts. 10 M
do. 155, 157. Article 1872 of the Code o
Practice sanctioned this custom, and tn
/. act of 1857, relied on by the counsel for ap
| pellant, extends, rather than limits, the au
thority and powers of deputy clerks In tn
parish of Orleans. THAT in the absence O
7 sickness of the clerks of the several court
I | OF the parish Of Orleans, their respectiv
!, deputies may sign all orders and issue q
= writa which the clerks themselves ma
q 2. We are of opinion that the oppositio
to the account was not an abandonmer
of the suit instituted in the Fourth Distrit
Court. il the sense of article 1886 Of th
, Civil Code.
In regard to the third ground, that an in
dorser is not an obligor in solido. We di
. not decide that.
In examining the record we were led int
= | error Of fact from the manner in which Ii
note, with the signature of the parties to i
, | was copied in the transcript. The names