New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-04-29

tairle9 Default a!lo we'd again.t other os s=pds Is.
State Of Louisiana eX rel. T. Wharton tO!Ees rs,
Charles C.iutOu.-PetItOn alleges that Sla.Et r
Was duly e,ecItr Judge of the SSveIth District
Court November t. 1872; hat he was comm issiOnel
and qualified aid ut. red lie duties OF his ics
that he applied 10 the defendant tlr warrant tor
425ea that tie Auditor declined to comply; thaS
the act arolistiig the sa.d court IS uEcrNsttu-
fiona. WIT of mtnIamus prayed tor. Order tel
that d Elaudanus BE- issued command IL - Tss pond
1915
First 8aisvYicR 0'smD8.
The following persons were a:raigued $40 s0.sI-
Ing and FlcaGel not guilty:
William smith, john dusk and Nary &a.%%lds
charged with larceny.
hiam Wilson, hhictilg n wound, ,O.s tSEn
mayhem, viii dangerous weapon:
Joseph God III Marx charged With 9lS$nF.
State vs.. Timothy Hays MaLslaugLter YH
consideration Of the temporary insanity Of ERE
prise er 1T the time of the homicide the court
Sentenced him 10 one day in Parish PIiaen ana To
pay lie cgsts or prosecution.
State vs.. Beaur. gard J4lnison, Robert TSsS aud
RichaId BTOwA.-MnFGeT. On trial, Sr"e3c&iien
moi vel closed.
Fita Die,EicQ Court-Dccisfeas &p 9m&g~
GuIIonn
Joseph Hoy ct al. vs. Andrew J. Lindsay parish
of O.ltane.-TLe Plaintiffs are the juc gment cred
itOs OF Henry Boyce, who lived and G'ed ii the
nieIts against Il III at the May term OF the smith
District Court Ofthat parish, 1871, all o! wlich
then and there daily recorded: They ALI sc that
the d, fe I.Int did, on the tenth day of ApI a H..
1871, file suit in tits court, in which he aVelrtd
that Henry Bovce was citizen OF the parish of
Rapides ard that he here obtained d Judgment
against him on the tenth of April of that year.
THUS filing lis suit and obtanng$udsmeut on the
same cay il a c. u having no jurisdiction.
Til alege that this prOcet ding Ni;:ldtive
Of the constitution and laws of State OF L0uisi.
ana and were nail absolutely. Lindsay being a
citizen Of Missouri, siding III st. Louis an attor
ney Was duly a ponttd to represent Mm. They
pray that saiG Judgment numbered 1873 on the
docket OF this court, be decaI ed null and void and
they eGay foI Il i,junCtlon stayin. the execution
nf sal il a q tf L. II main
defendant accepts 20 the Jurisdiction OF Tins court
and tor answer denies the right of plaintiff to the
relief asked, ana he pTaSs 10 be he CO Gs:I.i sed
with costs. Il vas admitted that Lind s iuda-
ment Was rccoIG.d in the PARISH OF Sabine on
March % 1872.
Plaintiffs counsel he rein refers the court first to
article GI Of he HcGe OF Practice, winch De cares
that 1T is ger eral rue III civil matt, that ore
must be sUcG bt tuIt his own iul5r-that is to saw
before the judge having jurisdiction over he place
where he has lis dOmi;:l or residence, and s.all
rot be permitted to EJECT any other donnie le or
res dehce for the purpose OF being sEeC but this
rude IS subject 10 tHOsc exceptions especially
vided for by law. the present suit is not included
i'll any OF tie EXCEPTIONS and must therefore come
und T the general lue. 1t appears Pd'rabr to my
mind that Geury Boy did the Identical thing
prohibited by lie above quoted ar ice. r at il,
he elected his Gom.cl'e here for the evident pur-
pose of bell SUED by Lindsay. The Simple fact
that he DID not decline to answer, or appear
in a court that had no Jurisdiction OYER nm
is proof taough that lie elected this as lis DON'T
cHe for the purpose Of being sued. Ii may he ii
that he did lot elect donicle helt, cut that he
OF the ode 81 PfaCttce, "hlch declares nat II |
he cited before Judge whose IpisAi CtiUn does
not extend to he place of his domicl'e, Of his
usual residence, b"t who is competent - decide !
the brought before him, and he plead to the
merit instead Of declining the jurisdiction, tic
alignment ven h ~ b. valid, ept the def I'd
ant be II minor" There are TWO obst Cos
to the efficacy Of This argumeIt-frst If
the curt was viii out Jurisdiction ratiune per
SOHO, by tie PIONie0ns OF positively prohibit
law &C. p Art c'e lt2 consent could not tai away
the law, uOl could it give juIdsdIctioI. JuIisCic
ton Is power c0nstitutionally conferred upan 4
court. TO take cOguizaEce and decide according Ia
law, and to carry its sentence into execution" :
See BOW. II St, Il. Tine consent OF parties
not empower court to act upon subjects which i
Cooley Con LIN ;, p. 1893. The plaintiffs there |
Ose. can repud ate lite proceedings idem.
2 SURPRISING ihdt such au ELF CtiOn Of d0nicife |
Id have the fleet of binding BOyce 10 lindsay
certainly could not affect the rights OF third par,
lies, acquii. IL good faith and in strict cOnfOTni
~ with law. the tact that the suit of Lindsay |
against BOI was filed on the tenth Of April and |
lie judgment made fnat on the same dag, is |
PROOF POSITIVE that B9yce sought to give an
Undue pr, lvreLce to Lindsay. The argument
If his counsel in this case distinguished |
ly rare ingenuity and fascinating plaus bity, rem
irred the more impressive by an admirable chaste-
ness OF language AID professional elegance but the
supp enc Court has lett nothing TO doubt with lie.
gard 10 tie meaning of article 1872 Of the Code Of
'ractice. 10 A y. 81, JtX VS.. keary; Bush Goode
rs Chapman, Morrison, interVenOr, "a A., 2.7 and
Z. chaIdsOn Hunter, % A.. 255. Guided there
ore, by the express provisions of the law and l,y
he interpre tatIOn of tine highest judicial tribunal
# tie STATE, asserted and affirmed often as the
ront has been presented for It's considerations | |
must award the plaintiffs IN this case Judgment
IS prayed.
Vi. f. Leblanc We. i. R. Cassard-TIlis suit +,
'rought to e. Join the execution of iudgneh: oh
AIMED ty Nj. lie Blanc against Mr. CaSsaIG, and 10 |
nnEl sad Judgment on various grounds, etc.
JndgS CaInIn, in passing upon tn east SAYS:
The delay to Ic expressed in the CITATION shall |
nnsist Of ten days, TO be counted from the tirue
he citation has been served which are allowed
o the utisrdtnt to comply with the demand OF
he petition i th" defendant side in the place
ucb place.
u counting the ten days. neither the day wien
be Ietiien has hren served nor the day when The,
clay expires are included. Article 5i8 declares
nat III q delay given 10 thc defendant Ter an
weling, Sunday is in, ludtd Ike other DAYS: htl+
all cases when delay is given to do sometrfoe
r to answer nIther the day of serving TIE notlot
or Il at on which the act is to be done rnc an
Ner fled ART included
On IL twenty second of MorCh the sheriff made
'rHlce OF citation, otc., and on thc 6 c,n& of
pril DE- fault was entered.
Now, according TO the articles above cired (
either the day OF tie service nor the one given tG
ne defendant is to be included in the ten Gays.
therefore, have March 23 one day. and 50 on !
!e first Of April making the tenth day; uut on |
Iese days t!ac defendant was not required to J
'swer and no default could be taken. He was
quiIrd TO ans on the second of April. bur the
tee says the day on which the answer shOu'd
He'd Is not included in the first ten DAYS. He |
r ice $40, &. F., declares "f the defenda { does
1t appea- either IN person or by his advocate |
ter the delay prov ded by law, the plaintiff may |
Ike a Judgment hy default against him"
NOV, II the defendant be allowed 4 delay OF ten
avs, and the dav wnich he thould answer and |
the default can not be taken until after the de
pl on idcd by law has expired, il would st EN- to
How hat neither the twenty third of March nor
e second of April should have been counted. |
bis in reality gives delay Of eleven clear da1 $
'i0re a fault can he taken. The plaintiff is not |
ith"r'2ed 10 take default until after the lapse |
the ten days allowed for the notice and one day
the hlng "t the answer. There should then be |
PERIOD OF leNp DAYS after the notice TO the de-
ndan before he could be considered in default in |
ls"erlng, ami the plaintiff could not take d de. |
III unit the twelfth day. In this case it Was |
ken on the eleventh, and was, therefore VremG- |