Fleitas v. Cockrem - 101 U.S. 301 (1879)
U.S. Supreme Court
Fleitas v. Cockrem, 101 U.S. 301 (1879)
Fleitas v. Cockrem
101 U.S. 301
1. A statement in the record that an issue was "called for trial by the court, the jury having been waived in writing," is, in the absence of anything to the contrary, conclusive that the requisite agreement for such a trial was made.
2. Although by the words of Article 335 of the Code of Practice of Louisiana the exception of lis pendens is given only where the former suit is pending "before another court of competent jurisdiction," such an exception, where the former suit is pending in the same court, is within the equity of that article.
3. Where, therefore, the defendant files such an exception -- a former suit pending in the same court -- the plaintiff may be compelled to elect whether he will submit to judgment on the exception or discontinue the former suit and pay the costs thereof.
4. The fact that the amount of an attachment bond was fixed by an order of a judge makes no difference in Louisiana as to the effect of the invalidity of an insufficient bond upon the subsequent proceedings.
5. This court conforms to the ruling of the Supreme Court of Louisiana, that the Code of Practice requires an attachment bond to be in "a sum exceeding by one-half" the claim of the creditor.
6. In an action on a promissory note for $5,000 and interest, the defendant appeared and filed an exception of lis pendens. Subsequently, on a supplemental petition praying therefor, an attachment against the defendant's property was issued upon the plaintiff's entering into bond for $3,200, as prescribed by the order of the court. The court denied the motion of the defendant to set aside the attachment, upon the ground that the amount of the bond was insufficient. The property seized under the writ was released upon the defendant's entering into bond for $9,100. The jury found for the plaintiff the amount of the debt and interest; the court rendered judgment against the defendant therefor, "with privilege upon the property attached, and with recourse on the principal and sureties on the bond, upon which the property attached was released." Held that the court erred in rendering any other than a personal judgment against the defendant.
The facts are stated in the opinion of the Court.