Chase v. Davis

Labattve, J. This suit is brought on a promissory note, dated May, 16th, 1861, for §32-1 28, payable to the order of R. H. Braughn, on the 1st of December, 1861. The defendant, not appearing, a judgment by default was rendered against him below, and afterwards made final after due proof.The delendant appealed. The suit was filed on the 24th of December, 1866, and petition and citation served on the 28th of same mouth aud year. The appellant filed a printed brief, in which he contends that the note is prescribed. Such a plea was not made below, the defendant, having made no appearance in that court. It is tiue, that the plea of preset ition can be filed in this court for the fisst time. C. P. Art. 1)02. But, ib must be specially presented by the pleadings, and not by brief. It is well settled that briefs are merely written arguments, and make no part of the pleadings. We consider, therefore, that prescription has not- been pleaded before this court, as required by the Art. 902 C. P. Dejol et als. vs. Johnson, Administrator, 12 An. 853, and other late decisions of this Court. The defendant and appellant has raist d no other question in this court, and we are satisfied that plaintiff made out his case below. The judgment appealed from is affirmed, with costs.