Fleitas v. Cockrem

Citation25 L.Ed. 954,101 U.S. 301
PartiesFLEITAS v. COCKREM
Decision Date01 October 1879
CourtUnited States Supreme Court

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

The facts are stated in the opinion of the court.

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 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 competency of the judge, pursuant to the rules above provided; 2. When it arises from the fact of another suit being pending between the same parties, for the same object, and growing out of the same cause of action, before another court of competent jurisdiction. In both cases the suit must be dismissed, and the plaintiff decreed to pay costs.'

The former suit in the present instance not being pending in 'another court,' but in the same court, the case is not within the words of the article. It has been held, however, to be within its spirit. Dick v. Gilmer, 4 La. An. 520. But in other cases, the pendency of the former suit in another court has been deemed material. Weeks v. Flower, 9 La. 385; Succession of Ludwig, 9 Rob. (La.) 92. And the exception is not necessarily a peremptory one in any case; for if before the trial thereof the former suit be terminated, the exception, it is said, will fail. Schmidt v. Braunn, 10 La. An. 26.

Since the exception in the case of suit pending in the same court is not within the words of the code, but rests upon its equity, and since in such cases both suits are under the control of the court in which the exception is made, we think the court might well exercise the discretion which was done in the present case, in compelling the plaintiffs to elect whether they would submit to judgment on the exception, or discontinue the first suit and pay the costs thereof.

The remaining assignments of error relate to the issue of an attachment in the case, and to the privilege given by the judgment upon the attached property, with recourse against the sureties on the bond given for its release.

The attachment was issued upon a supplemental petition filed in the case, and sworn to by one of the plaintiffs, stating the amount of the debt ($5,000 and interest thereon from Dec. 21, 1871), and that the defendant resided out of the State of Louisiana. The judge below made an order that an attachment be issued upon the plaintiffs giving bond in the sum of $3,200, with solvent surety, &c. The writ was issued, and under it the marshal, on the 11th of January, 1877, attached a plantation and sugar-house thereon, with its contents, consisting of sugar and other property sufficient to satisfy the claim; and on the 13th of January released the property by the claimant giving a bond for its release in the sum of $9,100. On the same day, the defendant entered a rule to show cause why the attachment should not be set aside, upon the ground, amongst others, that it was issued without the plaintiffs giving the bond required by law as a prerequisite therefor. This rule was subsequently dismissed by the court below, and a bill of exceptions was taken by the defendant.

The fact that the amount of an attachment bond is fixed by an order of a judge makes no difference in Louisiana as to the effect of the invalidity of an insufficient bond upon...

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4 cases
  • Loewe v. Union Sav. Bank of Danbury
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 12 August 1915
    ...construing that law, are controlling on the federal courts. Third National Bank of Baltimore v. Teal (C.C.) 5 Fed. 503; Fleitas v. Cockrem, 101 U.S. 301, 25 L.Ed. 954. the provisions of these sections giving to the federal courts the power to adopt by general rules the state laws must be re......
  • Bluegrass Canning Co. v. Steward
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 14 December 1909
    ...... Beadles, 7 Bush. (Ky.) 384; Bank of Frankfort v. Thomason, 66 S.W. 604, 23 Ky. Law Rep. 1957. Fleitas. v. Cockrem, 101 U.S. 304, 25 L.Ed. 954, was a case from. Louisiana where the court applied the well-settled rule of. the Louisiana Courts and is ......
  • Griffith v. Milwaukee Harvester Co.
    • United States
    • United States State Supreme Court of Iowa
    • 14 December 1894
    ...for failure to file a bond in the necessary amount. Churchill v. Fulliam, 8 Iowa, 47; Hamill v. Phenicie, 9 Iowa, 526; Fleitas v. Cockrene, 101 U. S. 301; Waples, Attachm. 116. Section 3018 of the Code authorizes the discharge of an attachment for other reasons making it apparent of record ......
  • Griffith v. The Milwaukee Harvester Co.
    • United States
    • United States State Supreme Court of Iowa
    • 14 December 1894
    ...... failure to file a bond in the necessary amount. Churchill. v. Fulliam, 8 Iowa 45; Hamill v. Phenicie, 9. Iowa 525; Fleitas v. Cockrem, 101 U.S. 301, 25 L.Ed. 954; Waples, Attach. 116. Section 3018 of the Code authorizes. the discharge of an attachment on motion at any ......

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