
    Charles F. Claiborne, Judge.
    EDMUND O. BARNES vs REV. FRANCOIS ROUGE
    No. 7837
    October 18, 1920.
   EDMUND O. BARNES vs. REV. FRANCOIS ROUGE.

COURT OF APPEAL

No. 7837.

Appeal from Civil District Court, Hon. Geo. H. Theard, Judge.

CHARLES F. CLAIBORNE, JUDGE.

On December 8th, 1S15, plaintiffythrough Lyle Saxon, ■Attorney, filed suit against the defendant for $7,000 and ob-■’flined judgment against him on February 1916. He issued execution, and seized certain notes owned by the defendant.

On Hatch 3d, 1916, they were advertised for sale, and on Hatch 14th, 1916, they were adjudicated to the plaintiff E. 0. Barnes. In his return, the Sheriff states that Barnes, as plaintiff, retained the amount in hia hands on account of his claim and judgment, "charges as detailed on the reverse hereof still due by plaintiff herein". These charges amounted to $155.90.

In November ISIS, a second execution issued, core nroperty was seized and sold on February 7f,h, 1917. The costs of this second execution amounted to $38.07. They seen to remain unpaid also.

On November 24th, 1919, more than three years and six months after the costs of the first sale became due and exigi-ble, but less than that time after the costs of the second execution became exigible, the Sheriff, Louis Knop, took a rule against the plaintiff and against A. H. Johness for judgment against them for the above sum of $197,97.

They pleaded the Proscription of three years.

For answer they averred:

lo that they employed Lyle Saxon, an attorney at law to represent them in their suit against the defendsxt Rouge; that Saxon had ar. open account with the Sheriff, and that the Sheriff had elected to hold said Saxon as the oerson liable for these costs, and that the costs were charged to the onen account of Saxon; that the Sheriff made recocted demands on Saxon to pay the same, and that it was not until nine months after Saxon had moved alvay from this City and twenty-two months after the bills were incurred that the Sheriff nade a demand on Johness for payment of the sainé;

2o that the agreement between Johness and Saxon was that Johness was to pay Saxpn $700 for his services and all costs of court, and that Saxon made an assignment of his claim of $700 to A. S. White which defar-dart Johness paid to White before any demand was made uoon him by the Sheriff;

3o that they have paid Saxon al] they owed him; that on ¡.'arch 22d, 1916, they paid him $212.68; that he owes defendant Johness $100 for money loaned.

There was judgment dismissing the rule, for reasons orally assigned. Upon the argument of the case, it did not .appear what we the res sor.s^.The Sheriff appealed.

Prescription.

Article 3538 (3503) of the Civil Code reads as follows:

"The following actions are prescribed by three years: xxx That of x x Sheriff x x for their fees and emoluments".

Act 136 of 1830 p 187 (195) provides for Sheriff’s flees. Section 24 p 196, says:

"That the fees of the Sheriff shall be advance^or paid by the party requiring the service to be performed, and such party shall be entitled to recover the same from the other party on the final termination of the cause, if costs should he decreed in his favor &c Sec. 26:
"That all fees proper of the Sheriff shall be due and collectible every six months from the institution of the suit".

As regards Barnes the plea of prescription seems to be well made a3 far as the bill of $159.90 is cdncerned. It was incurred at the latest on Krach 14th, 1916; it became collectible "six months from the institution of the suit”. Suit was filed December 8th, 1915, therefore the hill became collectible on June 8th, 1915; the rule for costs was filed November 24th, 1919, more than three years after June 8th, 1916; the costs were therefore prescribed as against Barnes. But the second hill of $38u07 was incurred only on February -7th, 191^ and is therefore not prescribed even as agiinst Barnes,

But the prescription of three years applicable to Barnes, the plaintiff in the case and the party primarily liable under the law, does not shield Johness.

Johness assumed the payment of those costs, and as to him the prescription of ten years, and not three years applies.

In a letter dated February 9th, 1918, Johness writes to W. 0. Hart, attorney for the Sheriff:

"Acknowledging your letter of the 8th, I ant-willing to admit the liability for Hr. 3. 0. Barnes, if there be any on my part".

This was an assumption of any liability of Barnes to the Sheriff. The fact Of this assumption's corroborated by the circumstance^ that Johness had an interest in the Barnes suit, and that he conducted all the correspondence between himself and W .0. Fart, attorney for the Sheriff, and Sol Weiss, attorney for Saxon, concerning the collection of this bill of costs.

In Ludeling vs Felton, 29 A,, 719, it was decided that as against the widow who had accepted the community, and thus assumed payment of its debts, the orescription of claims against her deceased husband was ten years. See also 7 A., 553.

In Scionneaux vs Waguespack, 32 A, , 288, it v/as held that the prescription of promissory notes was ten years, as a personal obligation, as against a person who had assumed their payment.

The same ruling was made in Levy vs. Desposito, 133 La., 126.

In the case of Nienaber vs Paine, 9 Ct. App., 64, the Court, said:

"’.There a purchaser, not a party to a mortgage note, assumes its payment as cart of the purchase price, such assumption is a stinulation pour autrui, which creates a personal obligation to pay the price of sole, and which is subject to the prescription of ten years".

Herits.

lo The novel proposition is advanced hy the defendants that by giving credit to tyle Saxon, the attorney for Barnes, the Sheriff discharged Barnes from liability to him and could look only to Saxon for payment of his fees. There Ls authoriiy . and no precedent for such contention. The testimony of^tfee •Sheriff is ^fnat there is no case on record in which an attorney y/rs considered or held liable for costs incurred by him as attorney. He states the relations of the attorney towards th^Sljeri f f, and such is our experience after long years of practic'

Q. You looked to Mr. Saxon to get the money?
A. No; we looked to the plaintiff for the money. It is just that we take the standing of the lawyers as to whether we should give credit to him for his client, to see that he would see that we get paid. We don’t look to the lawya: We never made a lawyer pay a bill yet".

The plaintiff in this case was liable to the Sheriff for the costs incurred by him; in order to hold Saxon liable it was necessary for him to have a written assumption from Saxon, which he does not pretend he ever had.

llo It is next contended that the agreement between Johness and Saxon was that Johness was to pay Saxon $700 for his services ar.d all costs of court, and that Saxon made an assignment of his claim of $700 to A. S. White which Johness paid to White before any demand was made upon him by the Sheriff.

The only evidence of this agreement is the testimony of Johness himself. He says:

"It is my recollection that Hr. Saxon was to be paid $700.00, and assume all costs in that litigation".

This testimony is weak and lacks certainty and conviction.

Besides, it is ameijdable to two legal objections; lo being a "contract for the payment of money x x above $500" it "must be proved at least by one credible witness, and other corroborating circumstances", C.C. 2277 (2257)

and

2o being a "promise to pay the debt of a third person"

parole evidence cannot be received to prove it. ''lore the Sheriff to atteir.pt to hold Saxon on the evidence of the ara-eement a3 sfet forth by Johness, he could not recover. But even if we actait the existence of the agree!:,ent set uo by Johness, how eould that agreement affect the Sheriff who was r.ot a party to it, and who knew nothing of it? The Sheriff alono could release Barnes or Johness.

Kor doe3 it make any difference that at the time Johness paid White, that the Sheriff had made no demand uoor, him . Of course, if Saxon had not assumed to pay the cost3, then Johness was liable for them at all times; if Saxon had assumed to pay the costs, it was Johness' duty to have er.nuired if he had paid them, before oaying ’.Thite, because he cannot he heard to say that he did not know that costs hsd been incurred in the Barnes suit.

lllo The third defense is that he has oaid Saxor. all he owes him, and that Saxon is indebted to him for money loaned. It is immaterial how much money defendant paid Saxon or loaned hie; if Saxon has not paid the Sheriff, Johness is still liable; the Sheriff certainly car.r.ot be made to suffer for a failure of Saxon to perform his suty towards Johness.

It is therefore ordered, adjudged, and decreed that the judgment herein rendered be reversed and avoided; and it is now ordered that the rule herein taken by the Sheriff on November 24th, 1919 be made absoluto and accordingly that Edmund 0. Barnes be condemned to pay Louis Knop the sum of $38.07 ar.d all the costs of this rule;

Jt is further ordered that Allen H. Johness be condemned to pay Louis Knop the sun of One Hundred and ninety-sever. 97/100 Dollars and all the costs of th.is rule.

October 18th, 1920.  