Citizens' Bank v. Beard

Decided January 15, 1850

Supreme Court of Louisiana · decided 1850-01-15

<p>Where after judgment by default, the defendant comes in and moves to set it aside upon filing what he styles a peremptory exception, he will not be allowed after-wards to contend that his exception was merely a dilatory exception, and that the case was not at issue upon the nferits. The plaintiff may fix the cause for trial, and the judgment obtained is final upon the merits.</p>

Cited by 1 later decisions — most recently May 1919

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1850-01-15

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¶1The judgment of the court (Eustis, C. J., dissenting) was pronounced by

Slidell, J.

¶2Before the exception was filed a judgment by default had been taken, which, in contemplation of law, is a joinder of issue. The defendant, on moving the court to set aside the j udgment by default, expressly termed his plea a peremptory exception, knowing that he had not a right under the statute to file a dilatory exception after a judgment by default. Whatever, therefore, be the character of the exception, be it dilatory or peremptory, the plaintiff has a right, for the purpose of the questions now presented, to the designation which the defendant chose to give to his own plea before- the district judge.

¶3Viewing the plea as a peremptory exception filed after a judgment by default, there was no irregularity on the plaintiff’s part in treating the plea as standing as a defence, and bringing the cause to trial in the ordinary manner as in case of an answer.

¶4Judgment affirmed, with costs.