City Nat. Bank v. Walker

SOMMERVILLE, J. [1] Plaintiff and defendant are nonresidents. The former sues the latter on two certain promissory notes secured by mortgage on property located in the city of New Orleans. It proceeds via ordinaria, and asks for judgment against defendant, with recognition of the common-law mortgages attached to its petition. There was judgment in favor of. plaintiff on one of the notes, and in favor of defendant on the other note. Defendant has appealed, and plaintiff has answered the appeal, asking that the judgment be amended, and that it have judgment in its favor for the full amount claimed. Article 890 of the Code of Practice provides that: If the appellee “demands the reversal of any part of the judgment, or damages against the appellant, he shall file his answer at least three days before that fixed for the argument. Otherwise, it shall not be received.” The case was fixed for argument for the first time on February 28, 1912, and the answer to the appeal was filed March 2, 1912. It comes too late; and it must be dismissed. [2] Defendant is sued through a curator ad hoc. He subsequently voluntarily appeared in court and filed an exception to the jurisdiction of the court. Afterwards he filed an exception of no cause of action. Both exceptions went to trial at the same time, and were disposed of in one judgment. The filing of the exception of no cause of action, and going to trial thereon, without first insisting that the exception to the jurisdiction be disposed of, was a waiver of the exception to the jurisdiction of the court. It was properly overruled. There is no error in the judgment appealed from, and it is affirmed.