127 So. 604 | La. | 1929
Lead Opinion
The allegations of the motion to dismiss are not borne out by the record. The judgment appealed from was rendered and signed in the court below on March 8, 1929. The appeal was granted on the written motion of the appellant on March 18, 1929. The minutes of the court for that day show the following entry in the case, viz.:
"It is ordered that a devolutive and suspensive appeal be granted to the said Mary Alice Gardiner, returnable to the Supreme Court of the State of Louisiana, on the 6th day of May, 1929, upon mover furnishing bond, with good and solvent surety in the sum of Two Hundred ($200.00) Dollars."
While the minutes do not recite that the motion for the appeal was made in open court, they do show that the appeal was granted in open court. The presumption is, therefore, that the motion itself was made in open court. Swain v. Lumber Co.,
Appellees cite, in support of their motion to dismiss, the cases of Ducre v. Succession of Ducre,
For the reasons assigned, the motion to dismiss the appeal herein is denied.
Addendum
This is an action for damages alleged to have been caused by the wrongful institution and prosecution of the suit of the five Erskine heirs against the present plaintiff, in which a writ of injunction was obtained by the plaintiffs and was afterwards dissolved by the decree of this court. See Erskine et al. v. Gardiner,
This suit was brought in the parish in which the Erskines have their domicile. The two other defendants, being domiciled in another parish, filed a plea to the jurisdiction of the court, ratione personæ. The plea was sustained and the suit dismissed as to these two defendants; and the plaintiff has appealed from the judgment of dismissal.
The only question is whether a suit for damages against two or more persons who reside in different parishes, and who are sued as joint tort feasors, and who, therefore, if they are liable at all for damages, are liable in solido, may be brought at the domicile of any one of them. If either of the two defendants, who excepted to the jurisdiction of the court, in this case, is liable at all for damages, the other defendants, the Erskines, who reside within the jurisdiction of the district court, are liable in solido with him. The liability of one who aids or encourages another to do a wrongful act, if there is any liability for damages resulting from the wrongful act, is a liability in solido with the one who committed the act. Rev. Civ. Code, art.
The sixth paragraph of article 165 of the Code of Practice provides: "When the defendants are joint or solidary obligors, they may be cited at the domicile of any one of them."
In Joseph Rathborne Lumber Co. v. Cooper et al.,
Article
We shall abide by the ruling made in Joseph Rathborne Lumber Co. v. Cooper, which is the most recent decision on the subject. If we are wrong in construing the sixth paragraph of article 165 of the Code of Practice literally, in connection with article
The judgment appealed from is reversed, the pleas to the jurisdiction of the district court, ratione personæ, are overruled, and the case is ordered remanded to the district court for further proceedings. The costs of this appeal are to be borne by the appellees, Perez and Shilstone. The question of liability for other court costs depends upon the final judgment to be rendered in the case.