Stephenson v. Broadwell , 26 La. Ann. 387 ( 1874 )

Wyly, J.

The plaintiff sued the defendant on his written obligation for $8000 ; and the defendant, alleging that the plaintiff resided in the parish of Ascension, set up a recouventional demand, disconnected with plaintiff’s demand, for $9000. On the trial the plaintiff introduced evidence in support of the averment of his petition, thsft Ms domicile is in the parish of Orleans, and therefore the demand in reconvention can not he entertained. The defendant offered a witness to contradict this evidence on the question of domicile, and the plaintiff objected on the ground that, as he had alleged in his petition and testified as a witness that his domicile was in the parish of Orleans, it would estop him from afterwards denying it, and therefore he might be sued here by the defendant. The court sustained the exception and the defendant took a bill of exceptions.

We think the court erred. The question of the domicile of the plain- - tiff was an important one, upon which depended to some extent the fate of the plea in reconvention. If the plaintiff in fact had his domicile in the parish of Ascension, the plea in reconvention could be heard. The defendant had an interest in contesting the point with the plaintiff, and had the right to introduce evidence in support of his position and to rebut the proof offered by the plaintiff.

It is therefore ordered that the judgment herein rejecting defendant’s ' reconventional demand and condemning him to pay plaintiff the amount claimed in the petition be set aside and annulled; and it is now ordered that this cause be remanded, with instructions to admit the evidence offered by the defendant and otherwise to be proceeded in according to law, appellee paying costs of appeal.