Smith v. Cromer
Smith v. Cromer
Opinion of the Court
delivered the opinion of the court.
The plaintiff should have been allowed to show by evidence the liability of the defendants other than Louis Cromer. They had pleaded, and their liability was the question at issue as between them and the plaintiff.
The action of the court on the instructions was erroneous. The instrument sued on is not a bill of exchange. It was not necessary for it to be presented in New Orleans for payment. The plaintiff certainly showed himself entitled to a verdict against Louis Cromer, and proposed to show the liability of the other defendants who had pleaded to his declaration and denied liability, and the court denied him the right to show this.
If any objection could have been made by the defendants, who were not embraced by name in the attachment, they waived it by pleading to the action.
Reversed and remanded.
Reference
- Full Case Name
- E. B. Smith v. Louis Cromer
- Status
- Published
- Syllabus
- 1. Pleading. Waiver. Attachment against one of several defendants. In an action commenced by attachment against one defendant, where the declaration, subsequently filed, counts against several, and all the defendants have pleaded to the merits, it is error on the trial to exclude evidence showing liability of the defendants not mentioned in the attachment writ. Any objection to the regularity of the proceeding is waived by pleading to the action. 2. Bill oe Exchange. Demand for payment. Suit was brought on the following instrument, .signed by the defendant, master of a schooner : “ Moss Point, Miss., April 16,1888. Received on board schooner “ Robert Delmas,” from E. B. Smith, two thousand two hundred and twenty-four barrels of charcoal, for which I promise to pay t,o the order of John J. Driscoli, at New Orleans, the sum of three hundred and sixty-five dollars and seventy-four cents.” Held, That this is not a hill of exchange, and that it was not necessary to prove that it was presented in New Orleans for payment.