ST. LOUIS SOUTHWESTERN RY. CO. v. SH Bolinger & Co.
| Decision Date | 30 March 1927 |
| Docket Number | No. 4793.,4793. |
| Citation | 17 F.2d 924 |
| Parties | ST. LOUIS SOUTHWESTERN RY. CO. v. S. H. BOLINGER & CO., Limited. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. D. Wilkinson, C. H. Lewis, and W. S. Wilkinson, all of Shreveport, La. (Wilkinson, Lewis & Wilkinson, of Shreveport, La., on the brief), for plaintiff in error.
H. C. Walker, Jr., of Shreveport, La. (Blanchard, Goldstein & Walker, of Shreveport, La., on the brief), for defendant in error.
Before WALKER, BRYAN and FOSTER, Circuit Judges.
In this case defendant in error, hereafter called plaintiff, brought suit against plaintiff in error, hereafter called defendant, to recover $6,591.61, alleged to be due the Martindale & Ouachita River Railway Company on a division of freight collected by defendant on joint through rates; plaintiff having acquired the assets, and succeeded to the rights, of said company. Defendant interposed pleas of res adjudicata and the prescription of two and ten years under the law of Louisiana. These pleas were overruled. The jury was waived, and the case submitted to the district judge on a stipulation as to certain facts and the testimony of one witness. The court entered a general judgment in favor of plaintiff for $2,010.78, without making any special findings of fact. In this situation we are limited to an inquiry as to whether there is any evidence in the record that will support the judgment and an examination of such errors of law as may be properly presented or are apparent on the record. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478.
On the plea of res adjudicata defendant relies upon a judgment in a former suit on the same claim brought in the District Court for the Western District of Louisiana, and decided on writ of error in this court adversely to plaintiff. 279 F. 564. In that suit the petition was dismissed on an exception of no cause of action, and the judgment was not on the merits. That judgment is not a bar to the instant suit. Gould v. Evansville, etc., R. Co., 91 U. S. 526, 23 L. Ed. 416.
The plea of prescription of two years is based on Act 223 of 1914, Acts of La. This statute relates solely to the recovery of erroneous freight charges and claims for loss of or damage to shipments of freight and has no application to the present controversy. The plea of prescription of ten years is based on article 3544 of the La. Civil Code. That plea would be good had prescription not been interrupted...
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