
    No. 2579
    Second Circuit
    LEVY v. TELCIDE
    (May 22, 1928. Opinion and Decree.)
    
      (Syllabus by the Editor.)
    
    
      1. Louisiana Digest — Bilis and Notes — Par. 192, 208; Pleading — Par. 62.
    Where two notes are given for the balances in the two previous years, the owner does not lose his right to sue on the larger note because of his having previously entered suit on the smaller one because each note represents a separate debt which the debtor agreed by his execution of the notes. Articles 91 and 15.6 of the Code of Practice therefore have no application.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by Leopold Levy against Charles Telcide.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    James W. Jones, Jr., of Natchitoches, attorney for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note. There was judgment in the lower court for plaintiff, and defendant appealed.

Plaintiff annexed to and made a part of his petition a promissory note alleged to have been signed by defendant for $144.38 dated December 31, 1919, and made due and payable on October 15, 1920, with interest at 8% from date and 10% attorney’s fees.

Before pleading to the merits, but reserving his rights to do so, defendant filed an “exception of no cause or right of action and a plea of res adjudicata” which was overruled by the court.

Defendant then answered, admitting his signature on the note, but denied that he was indebted unto plaintiff in any sum whatever.

He further alleged that on December 31, 1919, he was indebted to plaintiff in the sum of $188.38 on open account, and that on said date he executed his two promissory notes payable to the plaintiff, one for $44.38 and the other for $144.38 both due and payable on the same date, to-wit: October 15, 1920, and that on the — day of September, 1925 (should be'1924) the plaintiff filed suit on the $44.00 note in the Justice Court and obtained judgment thereon and that the same became final in due course.

And in paragraph 5 of his . answer he alleges—

“That the said Levy having sought to give the Fourth Justice Court jurisdiction of any demands against your defendant, by remitting any amount that your defendant might be owing or demanding less than was due him, has remitted any overplus that your defendant may have owed the plaintiff, and the plaintiff cannot now bring a demand for such overplus, having demanded less than was due him in his action in the said Justice Court and having brought suit for less than was due him, loses his right to recover any balance that may have been due.”

Defendant grounds bis defense, as set out above, upon Article 91 of tbe Code of Practice, wbicb reads, in part:

“But if one, in order to give jurisdiction to a judge, demand a sum below tbat wbicb is really due him, be shall be presumed to bave remitted tbe overplus.”

And Article 156, wbicb reads:

“If one demand less than is due him, and do not amend bis petition, in order to augment bis demand, be shall lose tbe overplus.”

Tbe facts disclosed by tbe record are tbat plaintiff is a merchant and during the year 1918 sold goods and supplies to tbe defendant on open account. At the end of tbe year, after receiving credits due him, defendant owed a balance on tbe account of that year amounting to $44.19.

He continued to buy goods from plaintiff through the year 1919 on open account as in tbe year 1918. At tbe end of tbe year 1919 be owed a balance for tbat year of $144.38, making a total indebtedness of $188.57. '

On December 31, 1919, both accounts were closed by notes, the defendant executing one note for $44.19 and one for $144.38. These notes were dated December 31, 1919, and were made due and payable on tbe same date, to-wit: October 15, 1920.

In September, 1924, nearly four years after tbe notes were due, plaintiff brought suit before a Magistrate to collect tbe smaller note and obtained judgment.

More than a year later be brought tbe present suit in tbe District Court.

Tbe sole defense is tbat plaintiff having brought suit on tbe notes for tbe less amount cannot now maintain an action on tbe other note.

We do not think tbe defense is good.

It is true, as argued by counsel for defendant, wbicb argument is supported by numerous authorities wbicb be cites, that a creditor is not permitted to split up or divide one debt for tbe purpose of conferring jurisdiction upon a court of inferior jurisdiction and thereby bring on a multiplicity of lawsuits and harass and embarrass bis debtor. But tbat is not the case here. Tbe creditor did not divide tbe debt in order to give tbe Magistrate court jurisdiction. That’ is evident from tbe fact tbat be took one note for an amount within tbe jurisdiction of tbe^ Magistrate court and tbe other above tbat jurisdiction. If be bad taken two notes, each for one-balf of tbe total amount due, each would bave been within tbe Magistrate’s jurisdiction and it might be argued that bis purpose in taking two notes was to give tbe Magistrate jurisdiction.

But suppose it be conceded tbat plaintiff did intend by taking two notes to confer jurisdiction on tbe Magistrate in on'é case, tbe debtor cannot .complain because be consented thereto by executing two notes. The act of tbe debtor in giving two notes to close tbe account was purely voluntary. There is not even a suggestion tbat be was coerced or unduly influenced to give two notes instead of one. Tbe debtor himself divided tbe debt and gave two notes.

These notes were separate and distinct' entities. Each evidenced an obligation to pay tbe amount stipulated therein. Tbe owner of tbe notes bad two separate causes of action, one on each note, two separate and distinct demands.

Under Article 148 of tbe Code of Practice tbe creditor could have cumulated these actions in tbe same demand, but be was not compelled to do so. Tbe Code provides that “separate actions may he cumulated” not that they must be.

When a creditor has two separate demands or causes of action, as the plaintiff had in this case, he is not bound to include in one action all the claims he has against his debtor under the penalty of being held to have remitted those he has not included. If he holds several notes, he may sue on them separately.

But there is another angle to this case.

Counsel says that defendant owed but one debt when he signed the notes on December 31, 1919. It is admitted that defendant purchased goods from plaintiff .upon open account during the year 1918 and that at the end of that year he owed a balance on that account of $44.19. He likewise purchased goods on open account in the year 1919 and at the end of that year owed a balance on the account of 1919 of $144.38. The notes given correspond exactly with the amounts of these ¡balances. It is therefore evident, in fact Mr. Levy says that, these notes were given to close the balances. The small note was evidently given to close the account of 1918 and the larger one to close the account of 1919. These were separate debts. There were two balances.

Counsel says the balance for 1918 was carried over and merged into the account of 1919 so that at the end of 1919 there was one balance of $188.57.

But the record does not show that. On the contrary, it is evident that both plaintiff and defendant considered that there were two debts, one for the balance of 1918 and the other for the balance of 1919, and separate notes were given to close these balances.

We have read and considered the cases cited by counsel for defendant. None of them support the contention that under the facts in this case plaintiff lost his right to sue on the note here involved by virtue of his having brought suit on the smaller note in the Magistrate’s court.

Judgment affirmed with costs.  