# Conery v. Rotchford, Brown & Co.

> Supreme Court of Louisiana · April 15, 1878 · 30 La. Ann. 692

URL: https://www.frixlaw.com/law-library/cases/7191552

## Case

- **Full name:** Edward Conery v. Rotchford, Brown & Co.
- **Court:** Supreme Court of Louisiana
- **Decided:** April 15, 1878
- **Citations:** 30 La. Ann. 692
- **Precedential status:** Published
- **Opinion:** On rehearing by Deblanc
- **Judges:** Deblanc, Egan, Manning
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

On Reheabing.
DeBlanc, J.
In 1863, on the 7th of December, a judgment rendered two days before in favor of Conery and against the defendants, was signed by the Judge of the second district Court.
In 1873, on the 30th of January, Conery instituted an action, for the use of Charles Gallagher, to have.said judgment revived. This action is brought against the succession of Joseph H. Johnston, Philip Rotchford, an absentee, and Shepherd Brown, a resident of the City, who heretofore composed the commercial firm of Rotchford, Brown & Co.
The granting of plaintiffs application is opposed, on the grounds:
1. That the judgment sought to be revived was rendered without citation to the interested parties, on the confession of one Bourk, then pretending to be, but who was not the agent of said firm.
2. That — to the knowledge of Bourk, Conery and Gallagher — -that judgment was rendered after the dissolution of said firm by the withdrawal of Rotchford and the death of Johnston.
The time when Rotchford withdrew from the partnership was not •shown on the trial, but it was shown that Joseph H. Johnston died on the 31st of July 1863, four months and five days before the rendition of the judgment which plaintiff is attempting to revive.
On the 15th of March 1870, Charles Gallagher addressed-a note to Bourk, the agent of said firm, to enquire whether ,he knew, when he was cited in that capacity, in December 1863, that Joseph H. Johnston was dead. Bourk answered in writing that he did not. The letter and the answer were introduced in evidence, without objection on defendant’s part.
On the trial, plaintiff’s counsel holding a document, said to Bourk, who was then on the stand as a witness: “Look at this, Mr. Bourk.” The witness-examined the document, did not swear that his signature was attached to it, or that he had ever seen it; and — without any fur *698 ther examination tending to identify the paper which he then held, plaintiffs counsel offered it in evidence as “ iwiiten memorandum marked A.” That memorandum is Gallagher’s letter to Bourk and the latter’s answer to it.
The agent’s incomplete declaration on this important point leaves the impression that he knew, when he confessed the judgment, that Johnston was dead, the partnership dissolved, his mandate at an end. If so, the judgment sought to be revived has never had any legal existence: but plaintiff’s and defendant’s failure to either verify or contradict the contents of the memorandum now before us, compels us to remand this case.
If, by the parties’ course, we were not precluded from referring to a petition copied in the transcript and which forms the very basis of Conery’s judgment, we would certainly have adhered to our first decision: but our attention has been tardily called to the fact that — instead of relying, as they should have done, on the pleadings filed in Conery’s suit — the parties have selected and placed before us but fractions of the same, and — in so doing — removed from the range of our consideration the petition alluded to.
We deem it proper to state that — in passing on an application to revive a judgment, the Court — unless restricted by the parties’ course and by an exclusive statement of facts, has the right to and should consider — whether actually introduced or not — every pleading filed in the suit in which the judgment was obtained.
It is therefore ordered and adjudged that our former decree is set aside, the judgment appealed from avoided and reversed, and this case remanded to the lower Court to be proceeded in according to law; the costs of the appeal to be paid by plaintiff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7191552. Public record. Not legal advice.