Millaudon v. Turgeau

One judge dissenting to the opinion of the court, the judges delivered their opinions seriatim. Mathews, Presiding Judge. This is an appeal from a judgment of the court below, by which a plea to its jurisdiction was sustained, and the suit dismissed as to the present, defendant and appellee. The suit was brought against two endorsers of a promisory note, who reside in different parishes, and an attempt is made [549] on the part of the plaintiff to bring the appellee, who is domiciliated in the parish of Ascension, before the court of the first district, whilst his residence is in that of the second, The right and privilege'of defendants to be sued at the place of their residence, when residing within the limits of the state and at no other place, has been secured to them by the provisions of our laws ever since the act of the legislative council of 1805. To this rule of law, no express exceptions can be found, those only excepted which are contained in the Code of Practice, articles 163 and 164. In addition to those expressed in the code, by a decision of this court, one more has been recognized, necessarily growing out of the provisions of law in relation to obligors exclusively joint; but, in my opinion, the same necessity does not exist in reference to obligations in solido;, and to create a new exception in favor of such contracts, would be in violation of an express and general rule of law, a proceeding not sanctioned either by its letter or spirit. The case of Allain vs. Longer, 4 Louisiana Reports, 152, althóugh the contract in that and the present one are similar, being both in solido, and which seems to be relied on by the plaintiff, brought to the consideration of the court, a question for solution entirely different from 1 that which the case now to be determined presents, and consequently is wholly inapplicable to the present contest. The doctrine in the former case may be just and true, and founded in law, without in any manner interfering with the privilege of defendants to be sued-in the place of their domicil, and no where else. An exception to the general rule, that defendants have a right to be sued in the parish where they have their residence and domicil, has been made by the court, in cases necessarily growing out of the provisions of law, in relation • to joint obligors, who are absolutely required to be sued together. The necessity of the case does not require that obligors in solido should be sued' together. To create a new exception in favor of such contracts, would be a violation of Poslt,Te law- Strictly speaking, the drawer a" note^r^Mi^ ?r.e ,not Loun<1 jointly, either to the holder or ^íve^accoídíng 1° only in solido. In interpreting contracts made in solido,^ it is worthy of remark, that the definition and rules relating to them in the Louisiana Code, do not expressly declare them to be both . 7 T T . . , . -i -i jomt and several. It is essential to a joint contract that the obligors should be bound, each one for his virile share, the sum promised by him, and no more. ' It is true that the obli- • ill 1 11 ' , . gations assumed by the maker and endorser of a negotiable paper, creates a contract in solido ; but it seems to me to be joint only in consequence of their promises being based on the same instrument. Strictly speaking, they are not bound jointly [550] either to the holder of the note, or bill of exchange, or amongst themselves, according'to the definition given in the code of a joint obligation. The plaintiff lias a clear and adequate remedy by suit, separately against either the drawer or either of the endorsers of a promissory note, because the obligation is not joint, but in solido. Defendants, sued as endorsers and bound in solido, have a right to be sued at their respective domicils. The court cannot create an exception in such cases, which is done when the obligation is joint only. When a contract joint and several in its terms, that is, one made directly in solido, is entered into, it,might be questioned whether the obligee could be permitted to consider this contract, in pursuance of his rights on it, as joint alone, although such an obligation may be said to be joint sub modo, being so between the obligors. I am therefore of opinion that the judgment of the District Court ought to be affirmed with costs.