Newman v. Eldridge

• Decision Date: 01 January 1901
• Docket Number: 13,762
• Citation: 107 La. 315,31 So. 688
• Parties: H. & C. NEWMAN v. W. O. & C. R. ELDRIDGE
• Court: Louisiana Supreme Court

31 So. 688

107 La. 315

H. & C. NEWMAN v. W. O. & C. R. ELDRIDGE

No. 13,762

Supreme Court of Louisiana

January 1, 1901

Rehearing Considered.

APPEAL from the Sixteenth Judicial District, Parish of Tangipahoa. -- Reid, J.

Benjamin M. Miller, for Plaintiffs, Appellants.

Stephen D. Ellis and Robert S. Ellis, for W. O. Eldridge, Defendant Appellant.

MONROE J. PROVOSTY, J., takes no part.

OPINION

MONROE J.

This suit was filed in the District Court, March 11, 1897, and there was personal citation upon the two defendants upon the same day. The purpose, as stated in the petition, is to interrupt prescription upon, and to revive and make executory, as against the defendants, a judgment rendered by the Circuit Court of Copiah County, Miss., March 13th, 1890, in favor of the plaintiffs and against Eldridge & Morris and Eldridge, Morris & Co., and W. O. Eldridge, C. R. Eldridge and Isaac Morris. The defendants plead the prescription of seven years, and a general denial. The case was submitted upon a certified copy of the proceedings leading up to the judgment sued on, and the Mississippi Code, of 1880, and there was judgment for plaintiffs as against W. O. Eldridge, but rejecting the demand as against C. R. Eldridge, and both of the parties cast have appealed.

It appears that the firm of Eldridge & Morris, composed of W. O. Eldridge and Isaac Morris, became indebted to the plaintiffs and gave a note and a deed of trust in acknowledgment of, and to secure, said indebtedness. In January, 1890, J. S. Sexton, as attorney for plaintiffs, began an action for the recovery of the debt in question, by filing an affidavit, for a writ of attachment, in which he swears that, "Eldridge & Morris" are justly and truly indebted, etc. And, upon this affidavit, the writ issued, directing the sheriff to attach the said "Eldridge & Morris," by their estate, real and personal, etc., etc., so as to compel the said "Eldridge & Morris" to appear before the Circuit Court, etc.; and to "summon the said Eldridge & Morris * * * to appear and answer accordingly." Thereafter, within thirty days, the plaintiffs in said proceeding filed their declaration, in which they alleged that, after the debt sued on had been contracted by the firm of Eldridge & Morris, composed of said W. O. Eldridge and Isaac Morris, C. R. Eldridge was admitted as a partner in said concern, and, in consideration of the interest acquired by him, agreed to be bound by the debts then due, as well as those which might be subsequently contracted, and that the firm then became, and was known as, Eldridge, Morris & Co., and they prayed judgment accordingly. The sheriff's return upon the writ of attachment was made a few days after the filing of this declaration and shows that he had executed the writ by seizing a lot of merchandise and other personal property, as also the real estate covered by the deed of trust; and that, by virtue of an agreement between the defendants and all of the attaching creditors the merchandise seized, together with certain other property, had been sold. He also recites that he had executed the writ "by summoning Eldridge & Morris," as directed.

Upon the 13th of March, following, the defendants having entered no appearance, judgment was rendered against Eldridge, Morris & Co. as prayed for, and the sheriff was directed to pay over to the plaintiffs the amount realized from the sale of the merchandise, after deducting the costs; and, thereafter, under a writ of fieri facias, against Eldridge, Morris & Co., the real estate affected by the deed of trust was sold to satisfy said judgment, and the proceeds were placed to the credit thereof, leaving, however, a large sum still due.

The plea of prescription is urged, upon the ground, that, although the suit upon the judgment so obtained was filed, and citation was served in the District Court of Tangipahoa, within seven years, yet no steps were taken in Mississippi, within that time, to revive said judgment, and that, under the laws of that State, it is prescribed, and hence, that no action will lie on it here.

It is well settled that the rules of prescription to be applied in any given case are those established by the law of the...