New Orleans & Carrollton Railroad v. Chaney

The judgment of the court was pronounced by King, J. The conclusion at which we have arrived on the merits of this cause, renders it unnecessary to consider the motion to dismiss. [263] The defendant is sued as endorser of a draft, and pleads the prescription of five years. A judgment was rendered in his favor in the court below, and the plaintiffs have appealed. This suit was instituted more, than, five years after the maturity of the draft upon which it is founded-. It is alleged in the petition that the defendant promised payment within the five years preceding the inception of the suit, and to establish the averment an interrogatory was propounded to the defendant, who denied any such promise. No effort appears to have been made to contradict thi3 answer, although it was redered more than six months prior to the trial. The plaintiffs further endeavored to show an interruption of the prescription, by exhibiting the record of a suit instituted against the remaining parties to the draft. Neither -the acknowledgment, nor the citation, of any other party to the draft, had the effect of interupting prescription as to the defendant, who was an endorser. Jacobs v. Williams, 12 Rob. 183. McCalop v. Newcomb, 2 Ann. Rep. 332. Hickman v. Stafford, Ibid, 792. The plaintiffs have asked, in the event of the testimony being insufficient to authorize a recovery, that there be judgment as in caseof non-suit only. The cause was pending three years in the District Court,during which time plaintiffs had ample time to prepare for trial, and to procure the testimony necessary to establish their demand, if any existed. In the-motion for a new trial it is not urged that there has been surprise, nor that there-is any expectation of obtaining further evidence. Under these circumstances the judgment should be final. ' '' Judgment affirmed.