Underwood v. Lacapere

Spofford, J. There was judgment in favor of the plaintiff against the original defendant, for the slave demanded in the petition; but the defendant was non-suited as to his demand against the warrantors. He obtained a now trial as to that branch of the case alone; and on the new trial, judgment having been rendered against the warrantors, they have appealed. The defendant was cited in New Orleans ; the warrantors were cited in La-fourche, the parish of their residence. Madame Landry alone answered. Bush made no appearance, and a judgment by default was rendered against him after the lapse of more than the legal delay. It is urged that the rule for a new trial was served upon the plaintiffs, and ' that it was made absolute as to the warrantors only, who had no notice. It was their own fault if they had no notice. They did not choose to employ counsel, and although they lived in a distant parish, they were bound to take notice of the orders of the court, in the regular progress of the cause. The court might have granted a new trial, ex propio motu, and wo could not have interfered with such an exercise of its discretionary powers. It is contended that the evidence offered on the new trial, and which alone ascertains the sum due by the warrantors, was taken ex parte, and should not have been received against the warrantors. We are of opinion that Madame Landry, who, having filed her answer, is presumed to have been present on the trial, cannot avail herself of the objection here, because she took no bill of exceptions in the court below. The evidence then fully sustains the judgment as to her. But with regard to Bush who made default, we think the party who called him in warranty was bound to prove his demand. O. P. 312. To do this he should have administered evidence that appeared prima facie, to have been ta- a ken according to law. Now it is shown on the face of the proces verbal that | the depositions of Blanchard and Dauries, were not taken according to law. § “ If -the adverse party, having no advocate, as above expressed, reside in the parish where the deposition is to be taken, the Judge or Justice of the Peace, to whom the commission is directed, must, before examining the witness, give [767] written notice to such party, of the place where, and of the day and hour at which, he will take the testimony of the witness; always allowing a reasonable delay for the party to attend.” C. P. 428. It is only when the party having no advocate of record, resides neither at the place where the court is held, nor in the parish where the deposition is to be taken, that the inode of giving notice to such party shall be by delivering to the Clerk of the court a copy of the interrogatories to be, by him, stuck up in his office. C. P. 428. In this case the interrogatories were merely posted on the door of the court room. The record shows that the warrantor, Bush, resided in the parish of Lafourche, where the depositions of the only witnesses who make out a case against him, were taken ; and the record further shows that no notice of time and place were given him by the Justice of the Peace, who received the depositions. The evidence is not, therefore, legally binding upon Bush, and the judgment against him must be reversed. It is, therefore, ordered, adjudged and decreed, that the judgment in favor of Mrmin Laoapere, against Mrs. Marie Oelesie Landry, widow of Pierre 0. Bourgeois, be affirmed; it is further ordered that the judgment in favor of said Lacapere, against Louis Bush, be reversed, and that there be judgment in favor of said Bush, as in case of non-suit; it is further ordered that the costs of this appeal be borne one half by Madame Landry, widow Bourgeois, and the other half by said Mrmin Lacapere.