17 La. Ann. 25 | La. | 1865
Plaintiff sued the commercial partnership of E. S. Kirk & Co., obtained judgment against it, and it appealed.
On appeal the judgment against the partnership was reversed; but a judgment was rendered againstE. S. Kirk, one of the partners.
The securities on the appeal bond, E. W. Adams & Co., in answer to a rule served on them, at the motion of plaintiff, to show cause why they should not pay the judgment rendered on appeal, assigned for cause, that the condition of the bond was, that E. S. Kirk & Co. should prosecute effectually the appeal, that they were only securities of said partnership, that the judgment rendered against it in the lower court had been reversed on appeal, that the partnership of E. S. Kirk & Co. was composed of Bobert S. Kirk, George S. Serrill and William D. Smith.
Judgment was rendered against the securities decreeing them to pay the judgment against E. S. Kirk.
The securities appealed.
Are the securities liable for the judgment against E. S. Kirk ?
No judgment was rendered against him "in the lower court — nor did hé appeal.
The Supreme Court rendered judgment against him because he was a partner of the firm, having reversed the judgment against E. S. Kirk & Co,
E. S. Kirk’s liability as a partner, and so decided, is not a judgment, nor a confirmation of a judgment, against a partnership, of which he was a partner, with others. To conclude otherwise we should have to disregard the judgment rendered on appeal, the words of the bond and the evident intention of the parties to the same expressed therein. The obligation of the sureties was to satisfy whatever judgment might be rendered against E. S. Kirk & Co. on appeal.
No judgment has boon or can be rendered against E. S. Kirk & Co. on the appeal, and there can be no judgment to satisfy.
Suretyship is restrained within the limits expressed and intended by the contract. See C. C. 3008.
The judgment of the lower court is avoided and reversed, and judgment is now rendered in favor of the sureties, E. W. Adams & Co,
Plaintiffs are to pay costs of both courts.
