35 La. Ann. 787 | La. | 1883
Lead Opinion
On Motion to Dismiss.
The opinion of the Court was delivered by
The motion to dismiss is on the following grounds :
1. “ That it does not appear that any order granting an appeal was entered on the minutes of the court.”
2. “ That the defendant had abandoned his appeal by not filing his transcript in this Court within three judicial days from the 1st Monday of November.”
The judgment appealed from was rendered in the District Court on the 1st of Julj-, 1881. On the next day, plaintiff and appellant moved for an appeal, and on the same day an order of appeal was rendered and the appeal bond filed. By this order the appeal was made returnable on the— day of November, 1881, the day not being fixed in the order by the Judge granting it.
The transcript was not filed in this Court on the 1st of November, nor within three judicial days thereafter, but on the fifteenth of that month, the plaintiff and appellant appeared in the court a qua, and suggesting that the order was defective on account of this omission, the Judge supplied the omission and named the 21st day of November as the return day, and the record was filed in this Court the same day the correction was made, (the 15th November, 1881).
We think this was sufficient. This precise question arose in the case of Laicher vs. The N. O. & J. R. R., 28 An. 320, from which we quote as follows:
“ The plaintiff moves to dismiss the appeal because the transcript was not filed in this Court within three judicial days from the return day.
“ It appears that on the 30th of December, 1872, the defendant filed a petition for an appeal, and the Judge, in granting the order, omitted to fix the return day. Subsequently, to-wit: on the 8th of March, 1873, he made an order fixing the return day on the 3d Monday of March, 1873, at which time the transcript was filed in this Court.
“The fault is not attributable to the appellant. It was an error of the Judge, and the appeal cannot be dismissed on account thereof.”
This decision accords with the spirit of the Act of 1839, under the liberal policy of which an appellant was relieved of all irregularities in the proceedings relating- to the appeal, not attributable to his fault, and has prompted the Courts, in all cases of doubt on this point, to give to the appellant the benefit of such doubt. It may be that this principle has been extended so far that, as argued by the appellee’s counsel, had the transcript been filed in this Court on or before the return day, with the omission as to the return day unsupplied, the appeal would not have been dismissed. But it by no means follows from this, that the appellant, failing to take such risk, prefers to have
3. “-That the appellants have not been cited to answer the appeal.” The order of appeal was rendered in open court, and when an appeal is thus taken, no citation is necessary. The subsequent order, fixing the day was not a new order of appeal, but merely a correction of the previous order, a perfecting of an existing appeal, and no citation was required. This distinguishes this case from that of Fournet vs. Yan Wickle, cited, which merely determined that an appeal taken in open court, defective because the amount of the bond was not fixed by the Judge, could not be perfected by an order rendered in chambers, on the petition of the appellant.
For these reasons the motion to dismiss is denied.
Opinion on the Merits
On the Merits.
The opinion of the Court was delivered by
This appeal being taken from a judgment sustaining an exception of no cause of action, it is necessary to state succinctly, but fully, the allegations of the petition. They are: that the defendants, George Legendre, Bright, and the succession of Emile Legendre, are indebted, in solido, in the sum of $5,000, as principal and sureties on the bond of George Legendre, given for the faithful performance of his duties as bookkeeper and clerk of plaintiff; that during the term of said Legendre’s employment, one Felix Morris was in the employ of plaintiff as paying teller, who had also furnished bond with sureties : that said Morris embezzled $15,000 of plaintiff’s money; that Legendre, in gross violation of his duties, knowingly encouraged, connived at and concealed the wrongful acts of said Morris, thereby inducing plaintiff to retain the latter, and enabling him successfully to embezzle the money; that, by reason of the breach of the conditions of their respective bonds, “ the said Morris and the sureties on his bond as paying teller, and the said George Legendre and the 'sureties on his bond as bookkeeper and clerk aforesaid, became justly liable to your petitioner in sólido,” for the loss and damage aforesaid, viz., $15,000; that said Morris having died, two of the sureties on his bond “paid to petitioner $10,000, in order to effect their release and discharge as sureties on said bond,” leaving a balance of $5,000 due, for which “ the succession of said Morris and the said Legendre, and his said surety, Geo. L. Bright, and the succession of his other surety, Emile Legendre, are
The grounds upon which the exception of no cause of action is based, are:
1. That it being alleged in the petition that Legendre and his sureties, aud Morris and his sureties, are all debtors in solido, the admitted conventional discharge of two of them, under C. C. 2203, “ discharges all the others, unless the creditor lias expressly reserved his right against the latter,” which last reservation is not alleged.
We are not disposed to give the effect claimed by exceptors to the allegations of solidarity contained in the petition.
That document clearly and distinctly sets forth the facts upon which the liability of defendants is based. Those facts are, that Morris and Legendre had each given separate bonds with distinct sureties for the faithful performance of the duties of their respective employments; that Morris had broken the conditions of his bond by embezzling $15,000; that Legendre had broken the conditions of his bond by wrongful and undutiful acts of connivance and concealment, without which the loss occasioned to the Bank would not have occurred.
From these facts it sufficiently appears that, if proved, the Bank had suffered a loss, for which Legendre and his surities were liable in solido ; and for which Morris aud his surities were also liable in solido; and for which, perhaps, Morris and Legendre, individually, as co-trespasers, were also liable in solido; thus presenting three groups of solidary obligations for the same object, but each having a different juridical cause.
The cause of the first group was the breach of the condition of' Legendre’s bond; of the second, the breach of the condition of Morris’ bond; of the third, the co-trespass of Morris aud Legendre.
In drawing his petition, plaintiff was not writing a juristic treatise, and, in affirming the solidary liability of all these parties for the loss, he was not required to define nicely their relations to each other in respect to that solidarity. The sufficient aud obvious purpose of the allegation was to charge that each and every one of the persons named was responsible for the whole debt. From the facts set forth in the petition, it is clear that the relation of solidary obligors inter sese did not exist between the discharged sureties of Morris and the defendants. A reasonable construction of plaintiff’s averments touching solidarity absolves him from the intention of asserting so palpable an error. Even if he had done so, it would be merely an erroneous legal conclu
- 2. It is next urged that, inasmuch as it appears from the petition that Morris vms the sole beneficiary of ihe embezzlement, he was pri-. marily liable for its restitution; that if Legendre and his sureties should be compelled to pay any portion of said loss, they would be entitled to legal subrogation to the rights and actions of the Bank against Morris and his sureties; and that, therefore, the conventional discharge of Morris’ sureties having rendered impossible legal subrogation to the Bank’s rights against them, the Bank’s recourse on the defendants is destroyed.
No nice analysis of the juridical elements of the various obligations of these parties and their relations to each Other, is necessary to demonstrate the fallacy of this position. The spectacle of Legendre, a co-trespasser, seeking to recover from the innocent sureties of Morris, what he had paid in reimbursement of a loss occasioned by his own fault, would be equally shocking to legal principles and to common sense. Nor would the sureties of Legendre stand in better case, although themselves innocent. By paying the debt of their principal, they would only succeed to those rights and actions, whether of subrogation or other, which he would have been entitled to, had he paid himself. Rev. C. C. 2161, No. 3.
The debt which they would have paid would have been a debt arising from the breach of their contractual obligation to respond for any damage occasioned by the undutiful conduct of Legendre. The sureties of Morris were not parties to that contract and were not bound “ for or with ” them for the faithful and dutiful conduct of Legendre.
3. It is finally claimed that, on payment of the loss, Legendre, and consequently his sureties would, at all events, be entitled to subrogation to the Bank’s rights against the co-trespasser, Morris, who was in greater fault, and the sole beneficiary of the trespass; that the discharge of the sureties operated the discharge of Morris also, because he and his sureties, though bearing to each other the relation of principal and sureties, were, as to the Bank, by the terms of the bond, solidary obligors.
Waiving the questions as to whether one co-trespasser can claim contribution from the other, and whether, if it exists, such right arises through any process of subrogation, it is a sufficient answer to this proposition that, from the petition, it does not appear that Morris has been discharged. The petition asserts his continued liability, which negates the idea of his conventional discharge. Exceptors, however, claim that he is discharged by operation of law, by reason of the
This contention is based on Articles 2203 and 3045 of the Rev. Civil Code, the first of which declares that “ the remission or conventional discharge in favor of one of the co-debtors in solido discharges all the others, unless the creditor has expressly reserved his right against the latter;” and the other provides :
“ The obligation of the surety towards the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors !» solido.”
The construction contended for, that the discharge of the surety who has bound himself in solido with the principal, operates the latter’s discharge, would be a “ sticking in the back,” which could not be countenanced, even if it were not, otherwise, entirely unfounded.
The Section of the (lode in which Article 3045 is found, treats of the “ effects of suretyship between the creditor and the surety,” and regulates the mode in which, and the conditions under which, the creditor may enforce his recourse against the surety, including the privileges of discussion and division and other provisions in the surety’s interest. The plain meaning of Art. 3045 is, that when the surety has bound himself in solido with the debtor, he shall not be entitled to these privileges and benefits, but that, so far as concerns the rights of the creditor, the effects of his engagement shall be regulated by the principles applicable to debtors in solido.
As between the principal and surety, however, it is admitted on all hands that their relations remain the same.
From this relation springs the principle that the discharge of the principal debtor discharges the surety, but the discharge of the surety does not discharge the principal. Rev. C. C. 2205. Why? Because, from the nature of this relation, the surety who pays is entitled to subrogation to the rights of the creditor agaiust the principal, while the principal who pays has no such right against the surety.
Authority in support of exceptors’ proposition on this subject is not, and we confidently believe cannot be, produced.
Holding, therefore, 1st, that Morris has not been discharged, and, therefore, that defendants’ recourse upon him, whatever it may be, is preserved in tact; 2d, that the discharge of the sureties on the bond of Morris has no legal effect upon the rights of defendants for want of
It is, therefore, ortjeíe.cfí” adjudged and decreed that the judgment appealed from be annulled avoided and reversed, and that the exceptions of defendants be overruled, and the case be remanded to the lower court, to be proceeded with according to law ; appellees to pay costs in both Courts.
Rehearing refused.
