New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-11-13
COURT RECORD.
THURSDAY, NOVEMBER II. 1871.
AuperieY Dlatrfee Ceurt.

DAME! prOchs vs. John McCOrwln.-An-
junction issued on petition, 70 prevent
seized property Of plaintiff on judgment
against another party being sold.
Superior Criminal Court.
SENTENCED.
Grand larceny-Owen Carpenter six
yesrs: Albert HENDERSON three years.
Firss District Court.
NoLLE PRosEoUI ENTERED.
Petty larceny-Mary Davis.
EateIing. etc.-JohR Smith.
INTORMArIOSs FILED.
Assault. and battery-Walker Barawood.
Mary Lewis.
Entering. etc.-John Smith.
Wsunding less than mayheE-JoAE ].
Haples.
Petty larceny-L. W. Kohlmaa.
CONVICTED.
Assault and battery--Ann Smith.
Petty iagceny-ThomAs Harris. Isaac
Smith.
ACQUITTED.
Petty larceny-Antoins Francis. Willis
Pugh.
second District Court.
Succeesiopa Of August Stratmeyer. Joseph
Emile PeyrOuI, Fred. Zursehmedden, JO-
seph Roux and Marie Jeanne OANOu-. alias
SansIom, opened.
Henry b. Dunn prays to be emancios.ed.
Fifth District Court.
Judge Cullom rendered the following de-
cision:
Josephine Pinaud. administrative. ~.
William Zadick.--in her representative ca.
p acity, che plaintiff prays for Judgment
agains. the defendant Cor $3.50 IS. with
| eight pc. cent per annum interest thereon
| from January 81. A. d. 1879. To this claim
I the defendant interpOses the plea OF lis pen.
dens. and prsys for . dismissal of the euit.
Tho f,cts upon which this exception is
based are substantially a. follows Among
| the assets Of the succession of Pierre Pi-
maud. now represented by plaintiff, was a
| prOmis sorry note. dated January u, A. D..
1871. signed by Gilbert Toupart, payable to
his own order and by him indorsed, for the
sum herein demanded. due one gear after
| its date, and secured by mortgage on tract
Of land in the parish OF Plaquemines. One
half of this note belonged to Pierre Pinaud.
the other to Julien FellOn. who was, during
the lifetime Of the former. in partnership
with him. The latter having possession Of
the note from and after the death Of Pi-
maud. placed it in the hands OF one Eugene
Mouret. who instituted suit in the honora-
bic Second District Court of this city.
against the present plaintiff. praying to be
decreed the owner thereof. and eDjOlning
plaintiff from further attempting to get pos.
session of the same.
On the trial. the present plaintiff was de.
creed to be the rghtful owner OF one half
Of the note and Julien Fellon the owner of
the other The court also ordered tn de.
livery OF the note TO the sheriff. Pending
these proceedings Mouret gave it to Zadick,
the present defendant. On q rule taken 10y
the present plaintiff in said Second District
Court, il was ordered that the note should
be brought in court. In obedience co the
order it was produced and filed. After the
rendition of the judgment III favor of the
from the records and again delivered to the
said Zsdick, the present defendant. who
discounted it in the parish Of Plaquemines
for the sum Of &2l0O. Thus the drawer and
maker Of it, Gilbert TOupart, extinguished
it. The administrative. plaintiff herein,
thereupon caused the defendant ct al. to be
brough, before the Judge of the Second
District Court. to show cause why they
ehould not restore said note or tho proceeds
thereof to said court until its further orders.
TIE court made the rule absolute as TO
Zadck, bu. he has never returned the note
nor accounted for its proceeds al ordered.
The order was granted without prejudice
70 any right which said Zadick may
claim to have IN and to said amount
as Pledge Of the note" An appeal
was taken from this Judgment which is
now pending in the Supreme Court. Thus
it is seen that the 1ueetisn submitted to
Zadick deposit in the Second District
Court Gilbert Toupart's note. belonging
Jointly to the succession OF Pierre Pinaud
and Julien Fellon, or the S2iOO, the pro.
ceeds thereof. subject to the further order
of that court without prejudice to any right
which said Zadick may claim 70 have in
and to said amount as pledgee of the note"
The question in this case is, shall this
court render judgment against Zadick in
tavo. OF Pinaud, administrative, for the
sum Of $3.50 IS. with eight per cent inter
est thereon from the twenty-irst of Jan
uary. Io72. until paid, with costs! Counsel
for Zad1ck cites the following cases to es-
tablish the legality Of his exception Of lis
peudens: |. Plique q Lebeau vs. Perret,
Francois Pain, intervenor. in which 1t was
held by Judge Bullard that mo matter in
what form OF action or proceeding, whether
by petition. exception Or Intervention, the
question may have been presented. if the
same question once judlciaIly decided be-
tween the parties be again agitated, it ID
sufficient to create the presumption result
ing from the thing adjudged. and forms q
complete bar" In TrescOtt, Hart, Labat
& Co, transferees, vs.. w. Lewis, II An. p.
1877, Spotford, judge, held that "a Judgment
discharging rule to arrest an execution
if not appealed from, within the legal delay,
would have the tnality requisite to sustain
the plea Of res judicata, and although the
time for appealing from it may not have
elapsed, it precludes any further action of
the court on the matters set up on the rule
In Charles Fonda, curator. VS.. George w.
Denton, l3 A. 343, Cole, Judge, "A judg.
ment dismissing third opposition to an
order of sale of property, Is final if un.
appealed from even though it be rendered
ex parte. and is complete bar 10 setting
up the pretended title anew"
In Jean FOss vs. NJ. Brentel ct ais, II An.
79s. Merrick. Chief Justice, held that
when judgment on a rule passes finally
upon the merits of q controversy between
parties it will have the same effect as
decree rendered in any other form Of pro-
ceeding."
1t Is rule of law long since established
that, q Judgment has the force Of res
judicata as to all matters and demands set
up in the pleadin2s." Erwin We. Bissell, II
L. 81. The exception is always strict juris.
3 A. $50, An. 45l, An. 665 and IS L. 2la
Detnitive judgments are such a. decide
all the points in controversy between the
parties, G. p. $50 land they ere such as
have the force of res judicaca." it,.
Three things must co exist. First--The
demand must he the same; eecond, 1t must
be OK the same cause of action. and third.
it must he made in the same quality. !
Pot. ci.. p. 80. ''Res jutica:s !.citur Gu"
nneM eontroyerslarum prOnunciations ju-
dices accipit, quod vel eondemna::ole ve!
absOlutione cOntlnglt.
In the case before me eae parties are Che