Brashear v. Carlin, 19 La. 395

Brashear v. Carlin

19 La. 395 | La. | 1841

Morphy, J.

delivered the opinion of the court.

On the dissolution of an injunction sued out by the plaintiff, he and Walter Brashear, his surety on the bond, .were decreed to pay damages. An appeal having been taken up. by plaintiff, the’ judgment of the court below was reversed on the ground, that the other party having abandoned the executory process, and prayed for judgment against his debtor, as in an ordinary suit, damages had been wrongfully awarded against the plaintiff on the injunction bond. See 16 La. Rep., 101. Brashear, who did not join in that appeal, has brought up the present one from the same judgment. He is met in this court by a motion to dismiss his appeal as being taken from a decree, which was no longer in force. This motion must, in our *396opinion, prevail. It is obvious, that the judgment of the in* £erjor court coul¿ not be reversed as to the principal debtor in this case, and continue in force against the surety. The latter could not remain bound, after the former had been released ; although the surety had not joined in the appeal, the judgment rendered jn this court enured to his benefit. The obligation of 4 ^ a surety is so dependant on that of the principal debtor, that he is considered in law as being the same party as the debtor in relation, to whatever is adjudged, touching the obligation of ^1313-1*'61 » provided it be not on grounds personal to such principal debtor; it is for this reason, that a judgment in favor of principal debtor can be invoked as res judicata by the surety. 3 Pothier on oblig., 399.

The surety cannot appeal from a judgment against bimfincl which^he'latter reversed'em ap-lease oftheprin" cipal in the ’leased the a^party'to^that appeal.

jt -g therefore ordered, that this appeal be dismissed with costs,