35 La. Ann. 467 | La. | 1883
The opinion of the Court was delivered by
This suit is a pendant to Teutonia Bank vs. Wagner, 33 Ann. 732, where it was held that the sureties of Wagner, though bound solidarity with him, were several obligors inter sose, because solidarity between them was not expressed.
The plaintiff was one of those sureties, Bogel was another. These two paid the judgment against themselves as sureties upon that bond'. The plaintiff then acquired Bogel’s rights against others and brought this suit against Oertling, another surety, to recover of him his proportionate share, (one-third thereof) of the sum paid in extinguishment of the judgment.
The defendant excepted that the petition disclosed no cause of action, whioh was maintained aud the suit dismissed.
The obligations of the sureties to that bond have been judicially declared to be several, as much so as if each had separately bound himself by an independent contract.
The textual provision of our Code is that when several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt has his remedy against the other sureties in proportion to the share of each. Rev. Civ. Code, Art. 3058, (3027.)
Solidarity of obligation is not a prerequisite to the possession or exercise of the right to enforce contribution. The three necessary conditions are that the surety who is demanding contribution, and the surety from whom it is demanded, must each have been surety for the same debtor, and for the same debt, and satisfaction of the debt must have been enforced against the surety demanding contribution by a lawsuit.
These requisites unite, and are disclosed in the'petition of the plaintiff.
The judgment of the lower court is therefore reversed, and the cause is remanded to be proceeded with in due course, the defendant paying costs of appeal.