R.P. Farnsworth v. Estrade, Cotton Fricke

166 So. 676 | La. Ct. App. | 1936

^* Writ of error refused April 27, 1936. Herman J. Estrade and Fidelity Deposit Company of Maryland have both filed applications for rehearing. From both applications we notice that we are charged with error in that, on the call in warranty filed by Fidelity Deposit Company of Maryland against Estrade, we rendered a decree in favor of the former and against the latter. It appears that although the judgment in warranty was sought against Estrade by the surety company and although a preliminary default on the said call in warranty was entered, as a matter of fact, the said Estrade had never been cited to appear and answer the said call in warranty, and it follows that there should have been no judgment in warranty against him. Since this is conceded by both parties who have applied for rehearings, we have decided to amend the decree in that regard, but we see no necessity to grant a rehearing, since a careful study of both applications has failed to convince us of any other error.

It is therefore ordered, adjudged, and decreed that our original decree be amended so as to read as follows:

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the lower court be amended so as to make defendant, Herman J. Estrade, individually liable as an ordinary partner for his share or proportion of the claim of plaintiff, i. e., one-third thereof, and liable in solido for the costs of the lower court.

It is further ordered, adjudged, and decreed that there now be judgment in favor of Fidelity Deposit Company of Maryland. plaintiff in warranty, and against Edward F. Cotton and Henry Fricke, defendants in warranty, each for his virile share or proportion of the claim of plaintiff in warranty, to wit, one-third each of the sum of $1,100 and that defendants in warranty, Edward F. Cotton and Henry Fricke, be further liable in solido for the costs of plaintiff in warranty in both courts.

In all other respects the judgment appealed from is affirmed; R.P. Farnsworth Co., Inc., to pay the costs of appeal incurred by Herman J. Estrade; costs of appeal of R.P. Farnsworth Co., Inc., to be borne by Fidelity Deposit Company of Maryland, appellant.

Both rehearings applied for are refused.

Decree amended; rehearings refused.