Hemler v. Hawkins , 3 La. App. 149 ( 1925 )

REYNOLDS, J.

OPINION.

Intervenor, third opponent, established the correctness of her account against defendant, Miles Hawkins, for $506.16, for necessary plantation supplies furnished him to make the crop, and for $252.00, rent, by Ernest Thomason, who swore positively to the correctness of each item of the account, and by the defendant, Miles Hawkins, who, in his answer to the intervention, admitted its correctness and testified to. its correctness as a witness.

Plaintiff relied on the testimony of Cage McLemore and Clay Croxton, each of whom swore that he had sold goods to Miles Hawkins from time to time during the year 1924 for cash.

We are convinced that this evidence is absolutely true, but it in no way disproves the testimony of Ernest Thomason or Miles Hawkins, both of whom swore to the correctness of each item of intervenor, third opponent’s account.

Plaintiff specially calls our attention to the account of intervenor, third opponent, against Miles Hawkins as shown on pages 45, 47 and 49 of a bound book filed in evidence.

Our examination of the account, as kept in the book, indicates that it was copied at one sitting; but this fact is not sufficient, in our opinion, to warrant this court in holding that there was collusion or fraud between intervenor, third opponent and defendant.

Fraud will not be presumed. He who alleges it must prove it.

“Fraud is never imputed, except on legal and convincing evidence produced by one alleging it.”

Strauss vs. Insurance Co. of N. A., 157 La. 661, 102 South. 861.

The district judge who tried the case and saw and heard the witnesses and probably knew them, gave judgment in favor of intervenor, third opponent, against defendant, Miles Hawkins, for the full amount claimed against him, and, as against plaintiff, John A. Hemler, held that she had a first privilege, as lessor, for $252.00 with 5% per annum interest from May 5, 1925, on the proceeds of the sale of all the property, and a first privilege, as furnisher of necessary plantation supplies for $505.16, less the buggy, $35.00, and less doctor’s bills, $80.50, with 5% per annum interest from May 16, 1925.

The evidence satisfies us that the judgment of the lower court is correct, except, perhaps, as to the item of doctor’s bills, and as the judgment of the lower court as to this item was against intervenor, third oppo’nent and she makes no complaint, it cannot be disturbed.

Intervenor, third opponent asks damages for frivolous appeal, but we do not think, under the facts presented in this case, that damages for frivolous appeal should be allowed.

For the above reasons, the judgment of the lower court is affirmed.