Ballew v. Andrus's

Martin, J., delivered the opinion of the court. The plaintiff is appellant from a judgment sustaining the defendant’s plea to the jurisdiction of the court. The suit was brought on a sheriff’s bond, on which the defendant’s testator was a surety. An exemption from the jurisdiction of the Court of Probates is claimed on the following suggestions: ' First, That the District Court has e±clusive jurisdiction. Second, That the suit ought to have been brought against the sheriff, whose acts alone are complained of. Third, That it should have been brought against the heirs, and not the executor of the deceased surety. Fourth, That it is an action grounded on a tort or quasi offence, and is personal in its nature. • I.'According to the provisions of the 9Mth article of the Code of Practice, ISth clause, Courts of Probate have exclusive jurisdiction of all claims for money against successions administered by an executor. II. The sheriff and his sureties were jointly and severally bound, therefore an action lies against either of them. III. The party bound himself, his heirs, executors, &c. His executor is, therefore, suable on the bond. IV. It has been decided by this court that obligations arising from a bond, even when it was given to cover damages resulting from torts or omissions, are obligations ex contractu and not ex delicto. Poydras et al. vs. Putin. 5 Louisiana Reports, 324. Conventional obligations may be superadded to those which result from torts or quasi offénces, and the party in whose favor they accrue may choose between them and resort to either remedy. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, the plea to the jurisdiction overruled, and the case remanded for further proceedings, according to law, the defendant and appellee paying costs of the appeal.