Anselm v. Wilson

Bullard, J., delivered the opinion of the court. The appellant seeks to procure the reversal of the judgment rendered in this case, on the two following grounds: first, that the court erred in rejecting the call in simple or personal warranty; and second, that a motion for continuance, based on the affidavit of the defendant’s counsel, was improperly overruled. The suit was brought to recover the amount of a promissory noté subscribed by the defendant. She admits her signature, but alleges error, and that she had paid Joseph Erwin the amount before the note was given, and that he had promised to save her harmless against the note, and became her warrantor. She prays that he may be cited in warranty. The court afterwards, on motion, rejected the call in warranty. ' We are of opinion the court did not err. This does not, in our opinion, present a case of simple or personal warranty, within the meaning of that part of the code which authorises delay for calling in the warrantor. There does not appear to have existed any privity between the plaintiff and Joseph Erwin, who was a stranger to the contract sought to be enforced. Code of Practice, art. 379, et seq. 5 Merlin's Rep. verbo garantie simple. The continuance was, in our opinion, properly refused. The fact of payment either in whole or in part, which the party expected to prove by the absent witness, was not a payment of the note sued on, to the holders, but a payment to Erwin, before the date of the note, of which it is not pretended the plaintiff was conusant. If the defendant was not entitled to a delay, in order to have her recourse, in warranty, she was not entitled to a continuance in order to prove the facts on which her claim in warranty was founded. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.