| La. | Jul 15, 1859
The defendant appeals from the dismissal of a call in warranty, in a petitory action instituted against him, The appellee moves to dismiss the appeal, on the ground that the dismissal of the warranty is an interlocutory order, and does not work an irreparable injury.
This ground is not tenable. The Code of Practice authorizes a party in possession of land, who is sued for the same, to make his vendor a party to the suit, and to transfer its defence to such warrantor. It is evident, that a subsequent order, by which his warrantor is put out of court, may cause him an irreparable injury, and is, consequently, appealable.
On the merits, it is to be determined, whether or not, the exception to the call in warranty was well taken.
Defendants are sued, as party in possession, for certain land of which plaintiff alleges himself to be the owner ; and for rent of the same.
They answer, by declaring themselves to be lessees of one Hollister, a resident of Michigan, who is owner of the land, by purchase from one McGraw, a resident of Mississippi.
By an amended answer, defendants pray that McGraw be cited to warrant Hollister’s title. McGraw was cited through a curator ad hoc appointed to him, as an absentee, by the court. McGraw appeared by the curator ad hoc, and called his vendor, Benjamin F. Young, in warranty.
B. F. Young appeared, and cxcepied to the call in warranty of McGraw by defendants, on the grounds :
1st. That defendants had no legal right to call in warranty the vendor of Hol-lister to defend this suit.
I. The course to he pursued by a lessee of real estate, who is sued in the peti-tory action, is indicated in Art. 43 of the Code of Practice, and Art. 2674 of the Civil Code. Both these Articles contemplate that the lessee, thus sued, shall cause his lessor to be made a party. The Article of the Civil Code says, that he shall call his lessor in warranty, or to defend the suit, and shall thereupon be himself dismissed. The Article of the Code of Practice says, the lessee shall make known the name and place of residence of his lessor, who shall be made a party if he reside in the State, or is represented therein; and that the lessee shall, thereupon, be discharged from the suit. In this case, the defendants, supposing them to be in possession as lessees, have not pursued the course indicated by law. They have named their lessor, but they have not called him in warranty, neither have they asked to be thereupon discharged from the suit. They have put in evidence a power of attorney, which shows that one of these defendant is the agent of Hollister in this State. The defendants might, therefore, have made Hollister a party to this suit; but they have not thought fit to do so. In place of that, they have proceeded to defend the suit, by calling in warranty Hollister’s vendox-, without making Hollister a party, or entering an appearance' for Hollister. It is plain, that this coui'se is unwarranted by law. Hollister is not bound by these proceedings. As to him, any judgment that may be rendered will be res inter alios acta.
II. The defendants have introduced no proof whatever that they hold this land as lessees of Hollister, although that fact was put directly at issue by the exception.
Judgment affirmed, with costs.