Orleans Discount Co. v. Rhodes , 13 La. App. 573 ( 1930 )

JANVIER, J.

Plaintiff sues Joseph Lee Rhodes and Anthony C. Symmes on a promissory note signed by both. Judgment was rendered by default against both defendants, and both have now appealed.

The citation was not served upon Symmes, and counsel for plaintiff concede that the judgment as to him is a nullity, but they contend that their client, plaintiff, should not be required to pay the costs, and, in support of this contention, say that the judgment as to Symmes was rendered as the result of an error of the minute clerk of the division of the civil district court which rendered the judgment; that they did not attempt to prove up their case as to Symmes and that no judgment would have been rendered against him, except for the carelessness of the minute clerk to whom we have referred.

They cite no authority to support their contention, and, in the absence of authority, we are constrained to hold that it was . their duty to see that the judgment rendered in their favor was properly rendered and did not include a defendant against whom no judgment should have been rendered. We therefore conclude that the judgment as to Symmes should be reversed, and the suit dismissed, at the cost of plaintiff.

Defendant, Rhodes, concedes that the judgment as to him is subsequently 'correct, but contends that, inasmuch as he made a payment of $107.32, the judgment against him should have given him credit for this amount as of the date paid, to-wit, June 22, 1929, which would have made a difference in interest of something in the neighborhood of $5 or $6.

It is admitted that at the time the suit was filed there was a balance due of $550, with interest thereon from June 2, 1929, and it is also admitted that the amount for which credit was given, to-wit, $107.32, was not paid until after the suit was filed. We are therefore of the opinion that the district court was correct in rendering' judgment for the full amount with interest at 8 per cent, as stipulated in the note, and subject to a credit of- $107.32, and that the amount of $107.32 should not have been deducted and the interest re-figured from the date of that payment.

We therefore conclude that, as to Rhodes, the judgment appealed from is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed as to the defendant, Joseph Lee Rhodes, at his cost, and that it be, and it is, reversed, as to the defendant, Anthony C. Symmes, and the suit as to him dismissed, at the cost of plaintiff and appellee.