Taylor v. Littell

IIowe, J. The defendants have appealed from a judgment by default on a promissory note,,and have presented a number of points lor our consideration. They urge that the petition does not state the residence of tho plaintiff nor her full mame. This objection (il not entirely frivolous), should have been pleaded in limine, by dilatory exception. Parmely v. Bradbury, 13 La. 353. They also object that plaintiff docs not appear to have been properly authorised to prosecute the action, hut this defense should also have been specially pleaded in tho court below. Cochrane v. Miller, 10 Ann. 140. They further contend that, as the note was made to the order of Eliza M. Taylor, tutrix, the payee had no right to indorse and transfer it to the plaintiff; hut whether this right exist or not, we think they have no interest to raise this question. A payment to the plaintiff, indorsee, and holder, would sufficiently protect them. C. C. 2141; Bacon v. Smith, 2 Ann. 442; Nicholson v. Chapman, 1 Ann. 222. The same answer may properly he made to the objection that the suit should have been brought by the plaintiff’s-husband. An examination of the record shows, however, that no default was ever taken against the defendant, Mrs. Wackerliagen, and the judgment therefore, purporting to have been made final after default, is, as against her, irregular and illegal, for want of issue joined. The counsel for appellee states that it was rendered by mistake. The default against Littell seems to have been regularly entered and confirmed after the legal delays. The appellants assert in their brief that the obligation sued upon was given for the price of slaves, and urge that tho cause he remanded, as to both defendants, in order that proof, of which there is-none in the record, may be made on this point. Wo had occasion at the term lately held at Natchitoches, to considei [666] this question in tlie case of the succession of Tauziu, and held that under such circumstances the case could not he remanded. For the reasons given, it is ordered and adjudged that the judgment appealed from, as to the defendant, Augustus W. Littell, be affirmed with costs; that, as to the defendant, Mrs. II. M. Wackerhagen, the said judgment bo avoided and reversed, and the cause, as to her, be remanded to be proceeded with according to law.