Garland v. Coreil

May 5, 1931

No. 788

Versions:134 So. 297

17 La. App. 17

1931 La. App. LEXIS 676

ELLIOTT, J.

R. G. Gаrland, Ben Brignac, Cynias Veillion, Fred L. Fontenot, Lucius Landreneaux, Mrs. Vandol Ortego, and Clebert Duos, alleging a cause of action against A. Coreil and J. E. Ortego, in solido, under Act No. 250 of 1928, sec. 20, clauses 1, 2 and 3, joined as рlaintiffs, in a suit against them, claiming of them, in solido, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍certain amounts as due them on account of stock subscribed for and issued to them contrary to the law, praying for judgment in favor of each, for the amount of stoсk wrongfully issued to them under the law. They subsequently set out their cause of action with greater detail by means of an amended and supplementаl petition.

Mrs. Vandol Ortego departed this life before the actiоn proceeded further, upon which Vandol Ortego, her husband, was substituted аs a party plaintiff in her' place. Defendants A. Coreil and J. E. Ortego excepted to plaintiffs’ demand on the ground that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍their petition contained a misjoinder of parties plaintiff and showed a nonjoinder of necessary parties defendant. The exception of misjoindеr was overruled, that of nonjoinder was sustained, with leave to amend. Thе plaintiffs have appealed. ■

*18Defendants answering the apрeal pray that the judgment appealed from, to the extent thаt it overrules their exception of misjoinder, be set aside, ■ and that the exception be now sustained, but that the said judgment, to the extent that the exception of nonjoinder was sustained, be affirmed, and that the аppeal be dismissed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the ground that the judgment appealed from is interlocutory. Appellants have not furnished us with a brief in support of their motion and exceptions. The motion to dismiss • is overruled. Reasons fоr so doing will be ' stated later. The exception of misjoinder was prоperly overruled. Reardon v. Dickinson, 156 La. 556, 100 So. 715. The exception of nonjоinder should have been overruled. Under the provisions of Act No. 250 of 1928, sec. 20, clauses. 1, 2 and 3, if defendants, after trial, are found to be liable undеr the act, their liability is joint and several. When debtors are liable jointly and severally, on account of a debt, then, their creditors, to that dеbt, may apply for payment, through suit, to any they deem proper. It is our understanding that a liability in solido and a joint and several liability ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is one and the same thing under the Civil Code, arts. 2091, 2094, 2095 et seq. Maxwell v. Gunn, 2 Mart. (N. S.) 140. It may not be worth while for the plaintiffs .to sue anybody, except the two that have been sued. The stock certificates annexed to plaintiffs’ petition do not show that anybody else is liable, but the .trial may show a different state of affаirs. In speaking of liability, we have in mind nothing but the exception on which we аre acting, at this, time.

As for the motion to dismiss, the judgment sustaining the exceptiоn of nonjoinder, with leave to amend, has all the attributes of finality, unless рlaintiffs comply with the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍leave given. A motion for new trial was? overruled. Thе judgment does plaintiffs an irreparable injury in taking from them their right to proсeed as they have elected to do.

For these reasons the judgment appealed from is correct, to the extent that it overrules defendants’ exception of misjoinder, and it is to that extent affirmed. But to the extent ’that the exception of nonjoinder was sustained, with lеave to amend, it is annulled, avoided, and set aside. The exceрtion of nonjoinder is overruled, and the case is now remanded to the lower court to be further proceeded with as the law directs.

Aрpellants to pay the cost of their exceptions in the lower court and the cost of appeal. The other cost to abide the final result of the case.