Opinion
No. 16106.
June 24, 1935.
Appeal from Civil District Court, Parish of Orleans; Michel Provosty, Judge.
Michel Musson, of New Orleans, for appellant.
Harold J. Winling, of New Orleans, for appellee.
Plaintiff, as holder and owner thereof, filed this suit against defendant as the indorser of a certain promissory note in the sum of $500, with interest and attorney's fees. The defendant filed her answer admitting the note and her signature thereto, but setting up the special defense that the whole transaction was involved in the gambling business contrary to the laws of this state, consequently there was no valid consideration therefor, and praying that the suit be dismissed. Plaintiff then filed a motion to show cause why judgment should not be rendered on the face of the pleadings, inasmuch as defendant had admitted certain material allegations of fact contained in plaintiff's petition, and judgment was so rendered. It is from this judgment that defendant appeals.
It is true that defendant admitted certain allegations of fact contained in the petition, but it is obvious from a perusal of the answer that defendant intended to and did allege a special defense that the note sued on was involved in a gambling transaction, and therefore illegal, null, and void. Our interpretation of the answer convinces us that defendant is entitled to a trial on the merits and an opportunity to prove the special defense set up by her, and, for the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that this case be remanded to the civil district court for the parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed.
Reversed and remanded.