Gordon v. Dreux

Simon, J. This is a suit against the drawer and endorser of a promissory note. The defendants filed an exception, stating that the action was prematurely instituted, and the claim set up against them not yet demandable, inasmuch as the plaintiff, after the maturity of the note sued on, by special agreement with the drawer, for certain considerations received from said drawer, gave him time to pay the note, to wit, a delay of sixty days, which has not yet expired, and until the expiration of which, the plaintiff agreed not to proceed to enforce the payment of the note. The defendants prayed for a dismissal of the action. After hearing the testimony adduced by the defendants, this exception was sustained by the court, a qua, which ordered, that the suits should be continued for sixty days from the day of the protest of the note sued on. This judgment was acquiesced in by the plaintiff, who took no appeal therefrom. After the expiration of the delay, the latter moved the court for a judgment by default against the defendants. The defendants severed in their answers to the merits. The drawer of the note plea'ded want of consideration ; and the endorser, after pleading want of notice, averred, that if he ever was indebted to the plaintiff as endorser, his liability has been released in consequence of the plaintiff having given time to the drawer of the note, without his, the endorser’s, consent or knowledge. On these issues judgment was rendered below in favor of the plaintiff against the drawer of the note, and against him in favor of the endorser, from which the plaintiff has appealed. A motion has been made to dismiss this appeal on two grounds : First. That all the necessary parties are not before the court, as one of the defendants, the drawer of the note, has not been made a party to the appeal. Second. That the record does not contain the evidence on which the case was tried. I. This suit was brought against the defendants, in solido, and judgment was obtained by the plaintiff against one of them. The plaintiff appealed from the judgment rendered against him in favor of the defendant, who was released from the obligation declared upon in the petition ; and we are unable to see any good [404] reason why he should have appealed from a judgment renderedin his favor. The defendants had severed in their defences before the inferior court; their interests were distinct and separate ; and it seems to us, that there was no necessity to bring before us a party who had no interest in the matter in controversy between his co-defendant and the plaintiff. The judgment appealed from, and complained of, does not concern, in any manner, the drawer of the note. II. The evidence upon** which the mérits of this case were-tried, is all contained in the record. It is true that the testimony of several witnesses who were examined in support of the defendants’ exception, was not taken down in writing, and is not copied in the record ; but the judgment rendered thereon has had its effect, having been acquiesced in by the appellant, who only complains of the final judgment rendered on the evidence which was adduced on the trial of the cause below, after issue joined by the defendants ; and it is the correctness of the latter only which we are called upon to examine. On the merits of the defence set up by the appellee, the case presents two distinct questions : First. Is the notice of protest sufficiently proved to have been give.n to the endorser, by the Notary’s stating in his certificate that the same was delivered to said endorser himself, when it appears that if it were so delivered by the Notary, the latter must have done so out of his parish ? or, in other words, can a Notary give an official attestation of a fact occurring out of the' place of his jurisdiction, when it is his own act which he certifies ? Second. Was the delay granted by the court, a qua, to the defendants, in sustaining their exception, consented to by the plaintiff, without the consent and knowledge of the appellee 1 I. The Notary states in his certificate, that “the parties to the note were duly notified of the protest, by letters to them by me written and addressed, served on them respectively in the manner following, viz : by delivering the one for F. Roy to himself,” &c. ; and from an admission found in the record, it is established, that on the 1st of April, 1843, (the day on which the notice was served on the endorser,) the defendant, F. Roy, was confined to his house in the parish of St. Bernard by sickness. Hence, it is necessari [405] ly inferred that the Notary, having served the notice himself, must have crossed over the parish line in order to make a personal service on the defendant; and it is contended that the official certificate of the fact showing the personal service of the notice, supersedes the necessity of his appearance in court as a witness, and that such certificate is a sufficient proof of itself. Under the statute of the 13th of March, 1827, (Bullard & Curry’s Digest, p. 43,) Notaries, or persons acting as such, are authorized, by a certificate added to their protest, to state the manner in which any notices of protest to drawers, endorsers, &c., were served or forwarded ; and wherever they shall have done so, a certified copy of such certificate shall be evidence of all the matters therein stated. We understand by this law, that whenever a Notary, in his official capacity, and, therefore, within the extent of his jurisdiction as such, has done any act going to show the manner in which notices of protest were served, or forwarded, the statement thereof contained in his certificate shall have the same effect, as proof, as though the fact were proved by his testimony given under oath. For instance, if the notice is deposited in the post office by the Notary and forwarded by mail, or served personally by him upon an endorser, or in any other manner, within the limits of his jurisdiction, his statement of such facts, from the credit which the law attaches to the acts of such officers performed under their official oath, shall be believed, and no otherproof shall be required. But we are not prepared to say, if the act performed is done by him in a parish in which he has no capacity to act, that the same degree of faith and credit should be given to his written and unsworn attestation. In the latter case, he-should be sworn and examined as an ordinary witness. Here, when the Notary served the notice on the endorser personally in the parish of St. Bernard, his capacity was suspended. He made such service as any other individual would have done. He was not acting under his oath of office. He was out of his legal jurisdiction; and it seems to us, that if we were to permit him to attest this fact officially after his return to his office, and to give effect, as evidence, to his official statement of an act by him performed in a parish in which he was incompetent, it would be recognizing, and even vesting Notaries, with such powers as our Legislature never [406] can have contemplated. We are of opinion that the evidence of notice, furnished in this case, by the production of the Notary’s official certificate, is insufficient; and that on this ground, the plaintiff should have been nonsuited. II. An affirmative answer to this question, would go to the ab-, solute discharge of the endorser; and this is the ground upon which judgment was rendered below, against the plaintiff, in favor of the appellee. The latter contends that time was granted to the drawer of the note, without his consent and knowledge ; and the judgment of the inferior court sustaining the exception, is referred to as evidence of the fact.- It is true that sixty days were allowed to the defendants before filing their answer to the merits, in consequence of the agreement alleged in their exception, that is to say, because the facts therein stated were satisfactorily proven; but the exception was set up by both defendants, who joined in the same plea, and it is no where stated in the exception that such time was given by the plaintiff without the consent or knowledge of the appellee. They both say that the suit was prematurely instituted ; they both claim the benefit of the time alleged to have been agreed upon between the plaintiff and the drawer; and both aver that until the expiration of the delay allowed, the plaintiff cannot proceed to enforce the payment of the note sued on, which, they both say, is not yet due or payable. This exception, which was sustained, clearly shows that the appellee not only knew that the delay claimed had been allowed by the plaintiff, but that he had also consented to its being granted. He knew it so well, that he made use of the same plea, and obtained the postponement of the suit for sixty days. Far from making opposition to the delay, he enjoyed the benefit of the plaintiff’s indulgence, without suggesting in any manner that it had been allowed without his knowledge and against his consent; and we must come to the conclusion, that the appellee is not entitled to his discharge. It is, therefore, ordered, that the judgment appealed from, which is hereby affirmed, be so modified as to be in favor of the appellee as in case of nonsuit, with costs in the lower court, those in this court to be borne by the appellee.