Lusk v. Swon

Ogden, J. The plaintiff instituted this suit to recover from the defendant the value of a negro hired by the defendant from the plaintiff, and taken to St. Louis as a waiter on a steamboat commanded by the defendant — the negro having- absconded at St. Louis and never returned to his master, in New Orleans. Among other defences set up, the defendant relied on a special plea that the negro hired by him and who had escaped, was free, as the defendant had discovered after hiring- him. The plaintiff then called in warranty Charles B. Church, who sold the negro to W. D. Dougherty, from whom the plaintiff purchased him with subrogation to Dougherty's rights of warranty against his vendor, Church. The warrantor excepted to the plaintiff’s supplemental petition citing him in warranty, on the ground that the plaintiff had never been evicted by the judgment of any court, and that no suit had been brought either by the negro himself to recover his freedom, or by any one else to evict him,- and that plaintiff had no right in law to call him in warranty. The exception was overruled, and after a trial on the merits, a judgment was rendered in favor of the defendant, discharging him from all responsibility for the negro’s escape, but condemning the warrantor to pay the plaintiff the price of the negro with interest, from which judgment the warrantor has appealed. We think the court below erred in overruling the warrantor’s exception. It is the defendant only who when sued, in .eviction is permitted to cite his vendor in warranty. The Article 2495, 0, 0., authorises a plaintiff to notify his vendor, when he is obliged to commence judicial proceedings against one disturbing him in his possession, of the action which he is commencing. But in an action like this, to which neither the negro himself is a party, nor any one else asserting a title adverse to the plaintiff, the Article 2495 of the Code is not applicable, and there is no rule of practice which would authorise the plaintiff to proceed against his warrantor, except by a direct action in which he assumes the burthen of proving that the negro was free when he purchased him, as a ground of annulling the sale and recovering back the price. Although we are of opinion that the right of call in warranty does not extend to this case, yet we must at the same time remark, that we do not disapprove the practice of giving a judicial notice in this mode. When a person is thus called, he has an oportunity given him to participate in the proceedings, with the right to decline the call, if he thinks proper. The waiver of petition and citation would at least stand as a permanent and authentic record of the notification, and it seems equitable to allow the party making the call this privilege. It is therefore ordered and adjudged, that the judgment of the court below, [368] appealed from, which condemns the warrantor, be avoided and reversed, and that the suit as regards him be dismissed at the costs of the plaintiff in both courts.