First Nat. Bank of Miami v. Jefferson Const. Co.

110 So. 84 | La. | 1926

Plaintiff brought suit in Florida against this defendant as maker and against one Manley as indorser of a certain promissory note therein sued upon; and therein had judgment against both said defendants in their aforesaid capacities. There was no appeal.

I. Thereafter plaintiff brought suit against this defendant in this state to have said judgment made executory here, and therein had judgment accordingly. Again there was no appeal.

II. Thereupon plaintiff took out an execution; and this defendant then enjoined said execution on the ground that said judgment had been fully paid by said Manley, and that said execution was an attempt on the part of plaintiff to collect said amount in the interest of said Manley, and that the amount, if collected, would be credited (and paid) to said Manley.

Whereupon plaintiff admitted (and afterwards proved) that these allegations were true.

III. It is universally recognized law, that:

"There is always at least an implied contract between the parties which obliges a principal to reimburse his surety when the latter has paid the debt." 32 Cyc. 250.

The statutory law of Florida so provides. Laws 1855, c. 765, §§ 1 and 2; Laws 1913, c. 6486, §§ 1, 2 and 3. And so also does the law of this state. R.C.C. art. 3052.

IV. And the settled jurisprudence of this state is that an action may be maintained by, and in the name of, the nominal creditor for the use and benefit of the real creditor, reserving to the debtor his right to set off such equities, if any, as he may have against the real creditor. Succession of Delassize, 8 Rob. 259; Towne v. Couch, 7 La. Ann. 93; Blondin v. Christophe, 13 La. Ann. 324; Smith v. Atlas Steam Cordage Co., 41 La. Ann. 1, 5 So. 413; Ruddock v. Peyret,111 La. 1019, 36 So. 105; Dugue v. Levy, 120 La. 369, 45 So. 280; Hanton v. Light Power Co., 124 La. 562, 50 So. 544; Griffith v. Keller, 147 La. 540, 85 So. 233; Reisz v. Railroad Co.,148 La. 929, 88 So. 120.

V. The trial judge therefore properly held that the injunction issued without just ground; and accordingly we see no error in the judgment dissolving said injunction with damages.

Decree. The judgment appealed from is therefore affirmed.