Burns v. Haynes , 13 La. 12 ( 1838 )

Carleton, J.,

delivered the opinion of the court.

This case originated in the City Court, where judgment was rendered against the defendant, Haynes, and being confirmed by the Parish Court, he appealed to this tribunal.

In the City Court, the defendant appeared and plead for exception, that “ the plaintiff is not the real and bona fide owner of the note on which the suit is brought, and had no right to sue.”

The judge of that court considered that plea as an answer to the merits, and refused to hear the parties on the day fixed by rule for the argument of exceptions.

We think the court did not err; for if it be an exception at all, it is either dilatory, declinatory, or peremptory. It is not dilatory, for its object is not to retard but to defeat the action nor is it declinatory, for no objection is taken to the competency of the court; nor is it said that another suit is pending between the same parties for the same cause of action, before a court of concurrent jurisdiction: nor is it pretended the action is extinguished, and, therefore, it cannot be a peremptory exception.

But the defendant contends, that the judgment of the Parish Court must be reversed, for not containing the reasons upon which it is founded : we assent to this position. The constitution is imperative; and the judgment must, therefore, be reversed.

But this court have ruled, that whenever the record would enable them to examine into the merits of a cause, they would render such judgment as ought to have been given in the court below. 5 Martin,fZOl.

We think with the judge of the City Court, that possession of the note sued on, under an endorsement in blank, was primh facie evidence of property in the plaintiff, and threw the burden of proof to the contrary, on the defendant; and the signatures to the note not being denied, the plaintiff was not bound to prove them.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the Parish Court be avoided and reversed ; and, proceeding to render such judgment as ought to have been g¡ven by that court, it is further ordered and decreed, that the plaintiff recover of the defendant, Haynes, the sum of four hundred and fifty dollars, with legal interest from 27th February, 18S7, until paid, together with three dollars costs of protest, and the costs of suit in the Parish and City Courts, the plaintiff and appellee paying the costs of appeal.