Barrett v. Donovan

Labattve, J. This suit is brought against Donovan as drawer, and P. Halpin as endorser of a note, dated 6th February, 1861, payable 1st May, 1861, for $450 with eight per cent, interest from maturity. A judgment by default was rendered, and made final below, against the defendants in solido, and they both appealed. The death of the plaintiff having been suggested, on motion, it was ordered before this court that Patrick Irwin and Alexander Dapremont, testamentary executors of the late Richard Barrett, be made parties; they have appeared by counsel and prayed for the confirmation of the judgment, with ten per cent, damages. This case was called up the 22d, and fixed for argument for the 29th May, 1865. The plaintiffs and ap-pellees filed their answer, praying for damages, on the 27th May, 1865. It was too late. C. P. Art. 890; 14 La. 288, 391. The defendants and appellants have made no appearance in this court.' The case was fixed for argument and submitted by the appellees, and it becomes the duties of this court to examine the record and render judgment for one, of the parties, as the nature of the proofs and the justice of the case require.. C. P. Art. 892. After a careful examination of the record, we have been unable to find any notice of iirotest for the non-payment of the note sued upon and served upon the endorser, as prescribed by law. The judgment against P. Halpin is erroneous, and must be in his favor. It is therefore adjudged and decreed, that the judgment, as regards the said P. Halpin, be reversed and rendered in his favor and against plaintiff, as in ease of non-suit, and that it be affirmed as to the said D. Donovan; the appellees to pay one-half of the cost of appeal, and the said D. Donovan, appellant, the other half. Howehd, J., recused.