64 So. 396 | La. | 1914
Plaintiffs, as receivers of the Dalton Lumber & Tie Company, Limited, brought this suit in the district court for the parish of Bienville against the Globe Eire Underwriters of St. Louis, Mo., S. J. Paradise (said to be manager of that concern), also of St. Louis, and Dr. P. Gibson, of the parish of Claiborne (said to be one of the “underwriters”), alleging that said parties are indebted to them, in .solido, in the sum of $19,900, with certain penalties and attorney’s fees, under a policy of insurance issued by said “underwriters,” and by reason of the fact that the property insured was destroyed by fire. Citations appear to have been served on the two parties first named, in St. Louis, though by what means does not appear, and they came into court for the purpose of excepting, on the ground that they are citizens of and domiciled in Missouri, with no agent and no business in Louisiana, and that the citations are null, void, and not such as are required by law and as are necessary to bring them before the court, which exception being maintained, the suit, as to those defendants, was dismissed. Dr. Gibson filed an exception of no cause of action, which, so far as the record shows, has not yet been disposed of. Plaintiffs have appealed.
“In the event of litigation herein, to avoid a multiplicity of suits, no suit or other proceeding at law or in equity shall, in any event, be begun or maintained for the recovery of any claim upon, under, or by virtue of this policy,*517 against more than one of the underwriters herein, at any time, nor in any court other than a court of original jurisdiction, and that a final decision in such suit or other proceeding shall be taken to be decisive of the similar claim, so far as the same may subsist; [as to] each of the other underwriters herein absolutely fixing his liability in the premises. Each of the underwriters herein, in consideration of this entire stipulation, so far as he individually is or may be concerned, expressly agrees to accept and abide by the result of such final decision in the same manner and to the same effect as, if he had been sole defendant in a similar suit or proceeding as to the similar claim against him, so far as the same may subsist.”
We find nothing in the foregoing from which it can be deduced that the “underwriters” intended thereby to submit themselves to the jurisdiction of courts other than those of their domiciles. On the other hand, we find that the policy sued on purports to have been issued by “the persons, firms, and corporations known as the Globe Fire Underwriters, being subscribers at the Insurance Exchange, St. Louis, Mo.,” and that they declare that they “do, severally, each for himself, or itself, and not jointly, no one being bound for any other, hereby insure Dalton Lumber & Tie Company, Limited,” etc.
“Defendants the Globe Fire Underwriters of St. Louis, Mo., and S. J. Paradise appeared in this case and filed exception, not of want of citation, but to urge defective service, and to show that the court was without jurisdiction, ratione materise, and ratione personse, and to show that the defendants did not have an agent in the state, and to show that the citations issued and the returns thereon were illegal, defective, invalid, null, and void, and do not constitute such citations and service as are required by law, or as are necessary and sufficient to bring exceptors before this court. This is certainly an appearance for other purposes than for the purpose of pleading want of citation, and is therefore a waiver of citation.”
The exception is inartificially drawn; but its evident and sole purpose is to deny the efficacy of the citations to bring the defendants into court, and the contention that it amounts to a waiver of citation is without merit.
Judgment affirmed.
