101 U.S. 301 (1880), Fleitas v. Cockrem

Citation:101 U.S. 301, 25 L.Ed. 954
Party Name:FLEITAS v. COCKREM.
Case Date:March 29, 1880
Court:United States Supreme Court
 
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Page 301

101 U.S. 301 (1880)

25 L.Ed. 954

FLEITAS

v.

COCKREM.

United States Supreme Court.

March 29, 1880

OPINION

ERROR to the Circuit Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

COUNSEL

Mr. Charles Case and Mr. Robert Mott for the plaintiff in error.

Mr. William Grant, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an action on a promissory note for $5,000 and interest thereon at five per cent per annum from maturity, Dec. 21,

Page 302

1871. Judgment was rendered for the plaintiffs with privilege upon property which was attached in the course of the proceeding, with recourse on the principal and sureties on the bond upon which the property attached was released. The defendant brought this writ of error.

It is assigned for error, first, that the issue on one of the exceptions (lis pendens) was tried by the court and not by a jury, no agreement to waive a trial by jury appearing in the record. The record, however, declares explicitly that 'the exception in this cause was called for trial by the court, the jury having been waived in writing.' In the absence of any thing to the contrary, this is conclusive that the proper agreement was made.

The next error assigned is, that after an exception had been filed by the defendant, alleging that another suit had been commenced against her for the same cause in the Sixth District Court for the parish of Orleans, and had been removed into the Circuit Court of the United States, and was still pending, the said Circuit Court allowed the plaintiffs to elect whether they would, within a time limited, discontinue that suit, which was first brought, and pay the costs of the same. The record shows that the court below did order that the plaintiffs might elect to proceed in the present suit upon paying the costs in the first suit, and discontinuing the same, otherwise the exception would be maintained. The plaintiffs did so elect, paid the costs, and discontinued the first suit. The defendant objected to this course, insisting that she was entitled, upon her exception, to have the present suit absolutely dismissed.

The exception of lis pendens is given by the Code of Practice, art. 335, as follows: 'There are two kinds of declinatory exceptions: 1. When the exception is taken to the...

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