Scott v. Bogart , 14 La. Ann. 261 ( 1859 )

Merrick C. J.

The majority of the court adopt the opinion prepared in this case by Mr. Justice Spofford before his resignation. It is as follows :

SrorroRD, J.

This suit is based exclusively upon a judgment purporting to have been rendered in tho Court of Common Pleas for the city and county of New York on the 2d October, 1855.

Both defendants excepted to the suit, upon the alleged grounds that on or about the 17th Feb. 1855, they made a cessio bonorum, to their creditors and obtained a final judgment of discharge in the Sixth District Court of New Orleans, where the present suit was brought; they further alleged that plaintiff’s claim was put on their bilan, and that one of the plaintiff’s being a resident of New Orleans had notice thereof.

The exceptions were sustained and the suit dismissed by the District Judge, who says he felt constrained to this course by the authority of the case of the Northern Bank of Kentucky v. Squires, 8 An. 318.

But there is a peculiar feature in this case which the District Judge appears to have overlooked. x

The suit is upon a foreign judgment. The plaintiffs do not seek to recover upon the original cause of action, but upon the judgment in which it has been merged. This judgment was obtained long subsequent to the Louisiana cession and the alleged discharge there under. If this discharge was a bar to the original demand, they should have pleaded it in the New York court where that demand was litigated.

A Louisiana cession is not a peremptory bar to a suit upon a judgment rendered contradictorily with the ceding debtor, in another State, after the cession has been accepted here, even though the debt upon which the foreign judgment has been obtained was put upon the bilan.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, the defendants’ exceptions overruled, and the cause remanded to be proceeded in according to law, the costs of this appeal to be paid by the defendants and appellees.