Loussade v. Hartman

16 La. 117 | La. | 1840

Martin, J.,

delivered the opinion of the court.

This is an action against Hartman, Theriot, Bemiss, and •Vining, to recover the price of a slave, drowned in consequence of an illegal act of the defendants. In an amended petition the plaintiff stated (hat John B. Bemiss had been, through error, made a defendant, instead of Darwin Bemiss, and prayed that the error might be corrected, and the latter cited; and that he might have the remedy against him, which he had prayed for against the former; but said Darwin Bemiss was never cited, nor was the defendant Vining, or any curator appointed to represent them.

There was a joint judgment against Hartman and The-riot, and they appealed.

The legislature has given us no direction for the prosecution of suits on joint obligations arising from torts; but they have on those resulting from contracts. The Louisiana Code says, that “in every suit or joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are by law presumed to have done so.” Jlrticle 2080. And when one of the joint obligors has discharged or performed his part of the contract, he is still required to be made a defendant to the suit. Idem., 2082.

The appellants contend that, in the present case, the suit is brought against four defendants, in solido, on an obligation resulting from a tort; while on such obligations the code gives a joint action only. Louisiana Code, article 2304. The judgment is joint, and it is against two of the defendants only; and, therefore, the action must be considered a joint one. The judgment is consequently erroneous, because the petition charges that a trespass was committed by four persons, from which the law raises a joint obligation against all, and not a several one: For on joint obligations judgment must be given against each defendant for his proportion, which is regulated by the number of obligors.

It has been urged that the part of the Louisiana Code, relating to joint obligations, on which the counsel for the appellants rely, is to be found in the chapter which treats of conventional obligations and ought not to be extended to/ obligations resulting from torts. \

So, where four persons were sued as co-trespassers, for killing, or causing the death of a slave, and judgment taken against two only: held, that the judgment was erroneous in not including all; and against each one for his proportion of the plaintiff’s damages; and judgment of non-suit was rendered.

We are of opinion, that being without a rule given us by; the legislature for the prosecution of joint actions, on obligations arising from trespasses, we cannot resort to an arbitrary one, but are bound to adoptiAaf given in cases that have the greatest analogy to the one before us. Now, suits in actions on joint obligations resulting from contracts, have the greatest analogy to suits on joint obligations arising from trespasses. We, therefore, adopt the rule in the code, relative to conventional obligations. According to this rule, the judgment cannot stand, because it is not against each of the defendants and appellants for his proportion of the plaintiff’s damages, and because their co-trespassers are not included in the judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment against the plaintiff, as in case of non-suit, with costs in both courts.