
    Court of Appeal Parish of Orleans
    No. 7823
    J. D. HALL PLAINTIFF AND APPELLEE VERSUS ZION TRAVELER'S SECOND BAPTIST CHURCH OF SIXTH DISTRICT OF NEW ORLEANS DEFENDANT AND APPELLANT
   -Elnkelenlel- _J,

In ord|rtjjj32£>p3rly understand the issues in this ease No. 115.504, Division 'A', filed A February, 21st. 1916. This being on the identical note filed in this case, but the plaintiff in that case, a transferee, was one Isidore Singer and the suit was on an obligation for SS29.45, as the assignee, and holder, and owner of the note in question which was dated potober, 18th. 1915, payable on demand, at sixty days after its date to the order of Rev. J. D. Hall, Pastor, and bearing interest at the rate of sight per cent per annum from date until paid.

To thii petition Jjhere was filed a plea; that defendant bbing an inoorporated society, under laws and by-laws, pleaded, that the signors of the obligation, being the same as in the present suit, had no authority from the defendant to execute same. That plea -was sustained by His Honor, Judge Cage.

Subsequently the present litigation in the name of the present plaintiff as holder and owner was instituted» and in addition to the allegation added the following;

" If for any reason the Court should hold that said note is not binding upon said defendant, then petitioner avere that said note wae given to represent an indebtedness by said Church to petitioner for services rendered and that said servioes were well worth the sum ñamad."

Ths defendant filed various pleas amongst them one of res adjudioata, nnK&hhtaaHpagswt', another prescription , and finally the answdr which denied in to to all claims of plaintiff. The Judge a quo decided to Overrule all pleas, to let the evidence go in, and on that evidence and the pleas this case was finally determined.

The plaintiff in his own behalf teetified substantially; that he was engaged as Pastor for defendant Church at $50. per month, during and within the time specified; that there was a balance due him to the amount stated and there were two credits on the obligation in question, one November 15th, that of $40. and one January 5th. of $13., and there remained a balanoe due him as claimed. His was the only testimony as to these payments.

The other witnesses, three of them, signors of the obligation endevored to prove payment for the entire amount, but in our opinion, absolutely failed so to do. Payment as such was pot specially pleaded, but his Honoe» the Judge who tried this case in order to do justice, in our opinion, HjtlMMtittaBMBM and let the evidence go im to the effect, to which there was exception, but the whole case was tried upon it's merits finally and adjudicated in favor of plaintiff.

He are satisfied froma. a careful investigation of this reoord that the Judge gave defendants every opportunity to prove if they oould payments; every door was opened in order to substantiate each and every claim asserted but without avail.

So far as the law of the oase is concerned our Supreme Court having frequently decided the question of res adju-dioata; that where a suit was pending, another subsequently filed interruption of prescription was clearly had. See, Robinson Reports Vol. 1. p. 393. Bell vs. Mix, and authori -xies therein cited.

Our own Court in the case of Maurer vs. Vizard, 6 Court of Appeal, P.78, -Syllabus- "Where the claim sued upon in * both suits are identical, neither error as to form of aotion nor the final rejection of the demand in the first suit will avoid interruption of prescription, which reoom--mences to run only from the cessation 0f interruption". C. 0. '3518, 3090, 3090. " Jt. is Wb judicial demand whioh interrupts prescription and it suffices if plaintiff lias any color of right for himself and others." 116 La. 650, affirming 17 La. 315 and 41st. Ann.373.

A careful examination of both the faots and tlie law in this case satisfies us that the judgment rendered by the Judge a duo who saw and heard the witnesses was oorreot.

For the reasons herein assigned the judgment of the lower Court appealed from is hereby affirmed.

Judgment affirmed.  