Grieff v. R. S. Kirk & Co. , 15 La. Ann. 320 ( 1860 )

Voorihes, •].

The plaintiffs are the holders of bills of exchange drawn by George Kirie, and accepted by R. S. Kirk <& Co. Suit was brought against the drawer and acceptors, the latter being, as alleged, a firm composed of R. S. Kirk, and a person unknown to tho plaintiffs.

With regard to the defendant, George Kirk, the record does not justify the rendition of a judgment against him, as he received no notice of protest.

The counsel of the defendants contend, that no judgment could have been rendered against the firm of R. S. Kirk <& Co., because they have not been legally brought into court. This position is correct so far as concerns the unknown partner; but R. S. Kirk has filed a general denial in this case, and, upon judgment being rendered against the firm, has appealed as a partner. It is satisfactorily shown that R. S. Kirk, who filed the answer, was a member of the firm of R. S. Kirk <& Co.; for, not having been personally cited, he had no interest to appear, if, in point of fact, he was not a partner. His appearance can be accounted for under no other hypothesis but the fact of his interest in the partnership.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and it is further adjudged, that the plaintiffs’ demand against George Kirk be rejected, with costs in both courts; and that the plaintiffs do have judgment against R. S. Kirk for the sum of four hundred and twenty-four dollars and twenty-five cents, with legal interest from the seventeenth day of June, A. D., eighteen hundred and fifty-eight; and for the further sum of four hundred and twenty-six dollars and thirty cents, with like interest from the seventeenth day of July, A. D., eighteen hundred and fifty-eight, with costs and privilege upon the property attached.

Land, J., absent.