It is, therefore, ordered and decreed by the court, that the WESTERN DIST. judgment of the District Court be avoided and reversed, the October, 1840. verdict set aside, and that the case be remanded for a new trial, with instructions to the judge not to reject the sheriff's deed on the ground stated in the bill of exceptions; and that the appellees pay the costs of the appeal. MANICE. V8. LONG. MANICE vs. LONG. APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF Judgment affirmed, with the maximum of damages. This is an action against O'Neal as maker, and De Russy, William Long and John Tucker, as endorsers of a promissory note. O'Neal and De Russy, confessed judgment in solido; and there was judgment by default, made final against Long and Tucker. Long appealed. endorsers, are all the evi- The protest and notices to the dence adduced by the plaintiff. served, by being "left with his clerk at his counting-room." The defendant waived the formalities of citation and answer, and made no defence. This case was submitted without any brief, or argument. Martin J., delivered the opinion of the court. The defendant is appellant from a judgment against him, as one of several endorsers of a promissory note. He waived citation and answer, and judgment was taken against him and the other defendants by default, and made final on the production of the note and protest. The notice was "left with the clerk of the appellant, at his counting-room." There was WESTERN DIST. no serious defence, but the present defendant alone appealed, October, 1840. and has shown no error in the judgment. ARDRY'S WIFE vs. ARDRY, HER HUS- & CO. ET AL. INTERVENORS. The appellee has prayed for damages, and we think he is entitled to them. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs and ten per cent. damages. 16L 264 48 1036 ARDRY'S WIFE vs. ardry, hER HUSBAND: KAIN & CO. ET AL. INTERVENORS. APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF The letter of law may be disregarded with the honest intention of seeking its spirit when it leads to an absurd conclusion, and the judge is bound to recede from the letter until he arrives at a reasonable conclusion. The article 391 of the Code of Practice, provides that "one may intervene either before or after issue joined, provided the intervention do not retard the principal suit; yet time must be allowed to cite the party against whom it is directed, and the same delays, to answer or respond to interrogatories, given as in ordinary suits. So, where the plaintiff has treated the intervening parties as properly in court, he must allow them the usual delays to bring in the answers of all the necessary parties. This is an action by the wife against her husband for a separation of property, and sundry creditors of the husband who intervened in the suit. The plaintiff alleges that when she married her present husband, she brought a large amount of paraphernal property in marriage; being owner of one-half of her first hus ARDRY'S WIFE ARDRY, HER HUS- & co. ET AL. INTERVENORS. band's community, and in possession of the other half as WESTern Dist. the tutrix of her children by the first marriage. That her October, 1840. husband's affairs are in a deranged and embarrassed state, so much so that she is induced to believe his estate will not be sufficient to satisfy her claims and rights; wherefore, she prays for a separation of property, and that she be decreed to have the exclusive control and administration of her own separate and paraphernal property, and that of her minor children; that her mortgage upon the property of her husband, for the reimbursement of such of her property, effects and money, as he may have alienated and appropriated to his own use, be recognized, and that judgment of separation be pronounced in her favor, accordingly, for the sum of five thousand seven hundred and eighty-four dollars which he justly owes her. This suit was filed the 7th May, 1840, and the wife authorized by the judge to institute suit, and on the same day the husband acknowledged service of the petition, and waived all the other process. On the next day, the defendant came into court and confessed judgment; acknowledging that all the allegations in the plaintiff's petition are substantially true, and that he confesses judgment according to the prayer of the petition. On the 11th May, Barret and Young filed their petition of intervention, alleging themselves to be creditors of Ardry the husband; upon which citations issued, allowing thirteen days. for the return thereof. Kain & Co., Lambeth & Thompson, and James Pearce, all intervened and claimed to be creditors of Ardry, and prayed for leave to file their several interventions, and also alleged fraud and collusion between the husband and wife in this suit, with a view to defraud creditors and keep them out of their just rights. They pray that Ardry and wife be both cited. This petition was filed the 13th May, 1840, and on the same day citations issued, returnable in thirteen days. The plaintiff amended her petition, and propounded interrogatories to Lambeth & Thompson, relative to the nature of WESTERN DIST. their claim; and the defendant, Ardry, was sworn in open October, 1840. court to answer interrogatories touching his account with Lambeth & Thompson, all of which was done at the instance of the plaintiff. ARDRY'S WIFE. 08. ARDRY, HER HUS BAND: KAIN & CO. ET AL. INTERVENORS. On the 22d May, 1840, at the same term of the court, the plaintiff went into a trial on the merits, and offered evidence ; had judgment of separation of property, and for the sum of four thousand nine hundred dollars, with legal interest and mortgage. When the case was called for trial, the intervenors objected to going into trial at that time, and moved a continuance until all the parties were properly before the court, as service of the citations had not been returned, nor the legal delay expired; that the utmost diligence had been used to bring before the court the proper parties, by the intervenors, and that by the articles 389 and 393, of the Code of Practice, the "petition of intervention must be served on the adverse party, in order that he may answer the same in the delay given in ordinary suits." But the court refused to continue the cause so as to afford the intervenors the legal delay necessary to bring the defendants properly before the court, or even to read their petitions, or take any part in the trial of the cause, on the ground that there was no issue between the intervenors and original parties, and that the intervenors cannot retard the progress of the cause; to which opinion of the court, the intervenors excepted and appealed. Hyams and Dunbar, for the plaintiff. Elgee, Thomas and Ogden, for the intervenors and appellants. Martin, J., delivered the opinion of the court. This is a suit for a separation of property. Certain creditors of the husband intervened, who opposed the original parties proceeding to trial, until the citations of the interve v8. nors had been served, and the legal delay allowed to answer WESTERN DIST. in had expired. The court directed the trial to go on, being October, 1840. of opinion that under the provisions of the Louisiana Code, ARDRY'S WIFE and the Code of Practice, the intervenors could not retard the progress of the cause. Louisiana Code, 2408; Code of Practice, 391. The counsel of the intervenors took their bill of exception. The cause proceeded, judgment was given, and the intervenors appealed. The appellants show that they alleged fraud and collusion; that the original parties hurried on the case with unusual rapidity; the husband giving every aid in his power to the plaintiff. The petition was filed on the 7th May, 1840, the very day the wife was authorized to bring suit, and on the same day the husband acknowledged service of the petition and waived citation. On the next day he confessed judgment; acknowledging that all the allegations in the petition were true. On the 11th and 13th of the same month, the creditors of the husband intervened, and citations were issued returnable in 13 days, being the legal delay. The plaintiff amended her petition and propounded interrogatories to some of the intervenors, on the nature and extent of their claims against her husband. On the 22d May, nine days after filing of the last intervention, the plaintiff proceeded to trial against her husband, which the intervenors and appellants attempted to prevent by application to the court to continue the cause; the rejection of which, is the grounds of the present appeal. The Code of Practice, article 391, provides that, "the intervention may be filed either before or after issue joined; provided, the intervention do not retard the principal suit." The appellants' counsel show that the article 393, requires the "petition of intervention to be served on the party against whom it is directed, in order that he may answer to the same, in the same delay given in ordinary suits." The Louisiana Code, 2408, authorises "the creditors of the husband to become parties to the suit of the wife for a separation of property and be heard against it." ARDRY, HER HUS- |