BREEDLOVE V. NICOLET, 32 U. S. 413 (1833)

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U.S. Supreme Court

Breedlove v. Nicolet, 32 U.S. 7 Pet. 413 413 (1833)

Breedlove v. Nicolet

32 U.S. (7 Pet.) 413


Jurisdiction. The plaintiffs, aliens, were residents of the State of Louisiana at the time of the execution of the note sued on in the district Court of the United States for the Eastern District of Louisiana, and continued to reside in New Orleans since, having a commercial house there; they are, however, absent six months in the year, but when absent have their agent to attend to their business. The defendants in the suit were residents of the City of New Orleans and citizens of the State of Louisiana when the note was given. The residence of aliens within the state constitutes no objection to the jurisdiction of the federal court.

The commercial partnership, the drawers of the note upon which the suit was instituted, was composed of three persons, one of whom was a resident citizen of Alabama, and out of the jurisdiction of the court when the suit was brought, and the remaining two, the defendants, were resident citizens of Louisiana. Held that although the suit being against two of the three obligors might not be sustained at common law, yet as the courts of Louisiana do not proceed according to the rules of the common law, their code being founded on the civil law, this suit is properly brought.

The note, being a commercial contract, is what the law of Louisiana denominates a contract in solido, by which each party is bound severally as well as jointly, and may be sued severally as well as jointly.

The plaintiff Sigg was denominated in the petition and writ "J. J. Sigg." The omission of his Christian name at full length was alleged as error. By the court:

"He may have had no Christian name. He may have assumed the letters 'J. J.'"

as distinguishing him from other persons of the name of Sigg. Objections to

the name of the plaintiff cannot betaken advantage of after judgment. If J. J. Sigg was not the person to whom the promise was made, was not the partner

of Theodore Nicolet & Co., advantage should have been taken of it sooner. It is too late to allege it as error in this Court.

The petitioners aver that they are aliens. This averment is not contradicted on the record, and the court cannot presume that they are citizens.

If originally aliens, they did not cease to be so, or lose their right to sue in the federal court, by a residence in Louisiana. Neither the Constitution nor the acts of Congress require that aliens should reside abroad to, entitle them to sue in the courts of the United States.

The suit not having been brought against Bedford, one of the partnership, it was not necessary to aver that he was subject to the jurisdiction of the courts of the United States.

After issue joined in the district court, the defendants filed a plea that the firm of Theodore Nicolet & Company, the plaintiffs consisted of other

Page 32 U. S. 414

persons in addition to those named in the writ and petition, and that those other persons were citizens of Louisiana. The court, after receiving the plea, directed that it be taken from the files of the court. Held that this was a proceeding in the discretion of the court, and was not assignable as error in this Court.

The plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it, and the court might also reject it. It was in the discretion of the court to allow or refuse this additional plea. As it did not go into the merits of the case, the court would undoubtedly have acted right in rejecting it.

All the proceedings in a case are supposed to be within the control of the court while they are in paper, and before a jury is sworn, or judgment given. Orders made may be revised, and such as in the judgment of the court may have been irregular or improperly made, may be set aside.

Construction of the insolvent laws of Louisiana.

This action was instituted in the district court by Theodor Nicolet and J. J. Sigg, both averred to be aliens and citizens and subjects of the Republic of Switzerland, but at present residing and trading in the City of New Orleans, under the firm and style of Theodor Nicolet & Co.

The petition of the plaintiffs set out a joint and several demand against J.R. Bedford, James W. Breedlove, and William L. Robeson, formerly partners in trade, and doing business in the said city, under the firm and style of Bedford, Breedlove & Robeson. The cause of action was a promissory note, subscribed by Bedford, Breedlove & Robeson, for $2,964.10, dated at New Orleans, 22 November, 1826, payable sixty days after date, to the order of the petitioners. The petition then averred that said Bedford, Breedlove & Robeson had become indebted to the petitioners in the amount of said note, with interest and costs. It further averred that Breedlove and Robeson were citizens of the State of Louisiana, and resided in New Orleans, and that each of them were liable, as aforesaid, and prayed that Breedlove and Robeson might be cited, and that judgment be rendered against them, jointly and severally, for the amount due. Attached to the petition was an affidavit, setting forth that Breedlove and Robeson were jointly and severally indebted, &c. Two separate writs of capias ad respondendum were issued,

Page 32 U. S. 415

the one against Robeson, the other against Breedlove, upon which they were severally arrested and held to bail, under a special order of the judge.

In June, 1829, the defendants filed their joint and separate answer to the petition, in which, reserving all legal exceptions, they averred that the said commercial house of Bedford, Breedlove & Robeson, of which they were partners, having become embarrassed by misfortunes, after the execution of the note sued on, to-wit, March 16, 1827, made out a full and complete schedule, exhibiting the debts due by them, and the property and debts belonging and due to them, jointly and severally, which said property was duly accepted by the judge of the parish court, for the benefit of the creditors placed upon said schedule. Among their creditors were the plaintiffs, Theodor Nicolet & Co., then residents of New Orleans, in the State of Louisiana, and who were also residents of the same place, at the time of the execution of the note sued on. After the said acceptance so made by said parish judge, a meeting of the creditors of Bedford, Breedlove & Robeson was duly called. At the appointed time and place, the creditors who assembled approved of the acceptance of the property made by the judge as aforesaid. Upon these proceedings, judgment of discharge was finally rendered in favor of the defendants.

Afterwards, the original note was filed, to-wit, January 4, 1830, and on the following day, viz.,, January 5, 1830, the defendants filed a plea to the jurisdiction. In this plea, after setting out the note, they alleged that the district court could not properly exercise jurisdiction over the case, because they alleged, that said note was drawn by Bedford, Breedlove & Robeson, payable to the order of T. Nicolet & Co., who endorsed and assigned the same to one Frederick Beckman, who endorsed and assigned the same to J. J. Sigg, who assigned the same to Theodor Nicolet & Co., the present plaintiffs. The defendants then averred that the said firm of T. Nicolet & Co., was composed of various other persons than the said Theodor Nicolet and J. J. Sigg; that among the

Page 32 U. S. 416

partners in said firm one Germain Mussen, and one M. P. Durell, and one Charles Lessept, all and each of whom were citizens of the United States and State of Louisiana. Further, they averred that Frederick Beckman, a remote endorser on said note, was, prior to 5 July, 1828, and at the time of his transfer to J. J. Sigg, an alien, and a subject of the Hanseatic Towns; that on 5 July, 1828, he became a citizen of the United States and State of Louisiana, and was so at the time of the institution of this suit, &c. This plea was filed on 5 January, after the hearing of the cause had been commenced, and the objection of the petitioner's counsel against then receiving it, was overruled.

On 20 May, 1830, on motion to reconsider and annul the order of January, which permitted the defendants to file the plea to the jurisdiction, it was objected, that it came too late, the cause having been put upon the jury calendar, and regularly called on that calendar for trial. The court rescinded the order: 1st, because it was not filed in time; the defendants having pleaded to the merits, before oyer was given of the note; and upon this plea, the cause was at issue, when the plea to the jurisdiction was filed; 2d, oyer of the note was not necessary to enable a party to plead in abatement the citizenship of the plaintiffs; that both branches of the plea to the jurisdiction denied the capacity of the plaintiffs to sue, and therefore, ought to have been pleaded in abatement, and before issue joined on the merits, and that no material step was taken in the cause, between the reception of said plea and its subsequent rejection, on reconsideration.

On June 7, 1830, the cause came on for trial, when the following facts were admitted on the record:

That the persons, composing the firm of T. Nicolet & Co., were residents of the state at the time of the execution of the note sued, and had continued so up to that time; that they are absent about six months in the year; but when so absent, had their agents to attend their business, and their commercial house had existed in New Orleans ever since the execution of said note; that Breedlove and Robeson were residents of the City of New Orleans, and citizens of the State of Louisiana.

Page 32 U. S. 417

The proceedings under the insolvent law of Louisiana were admitted in evidence. The plaintiffs filed the protest of the note, which appeared to have been made November 22, 1827, at the instance of Frederick Beckman.

On 10 June, 1830, judgment was entered for the following terms: the court having maturely considered this case, now orders and adjudges that judgment be entered up in favor of the plaintiffs against the defendants, jointly and severally, for the sum of $2,964.10, with interest at the rate of five percent per annum, from 24 January, 1827, until paid, and costs of suit. To reverse this judgment, the defendants prosecuted this writ of error.

Page 32 U. S. 426

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