Pardee Co. v. H. Alfrey Heading Co.

BREAUX, C. J. Plaintiff and appellant has taken this appeal from a judgment of the district court dismissing its suit. Plaintiff sued the defendants — Alfrey Heading Company and Tom Spivey and A. L. Coffey — for trespassing upon its land. The petition shows that the plaintiff company is a foreign corporation acting through its president, Calvin Pardee. The Alfrey Heading Company filed an exception to plaintiff’s suit. This exception was overruled. Coffey and the other defendant, Spivey, appeared and excepted on the ground of want of authority in the president of the Pardee Company to institute the suit for the company. Spivey also appeared and excepted on the ground of want of authority of the plaintiff president to bring the action. The district court sustained the exceptions and dismissed the suit. Plaintiff appeals. I The corporation sought to appear exclu [751] sively through its president, Calvin Pardee. An exception of want of authorization having been filed by Spivey and Coffey, the suit as to them was properly dismissed. It devolved upon the president to allege and prove as to these defendants and appellees that he had special authorization from the board of directors to bring the suit. He did not make that proof, and failed to allege that he was authorized to sue. Hoffpauir v. Wise, 38 La. Ann. 704; Rice Milling Co. v. Durocher, 123 La. 160, 48 South. 780. The defendant’s contention is — based upon his answer to the appeal in this court — that the judgment dismissing this suit as to Coffey and Spivey should be affirmed on the ground that the authority of the president to bring the suit is not shown, and not on want of authority of the corporation. Defendants and appellees in their answer to the appeal assume that the court dismissed the suit because of want of authority of the corporation. That is error. The plaintiff is the president, and not the corporation, and the president’s suit is dismissed, and no reference is made in the judgment to the corporation. Now as to the corporation: The Pardee Company sued through its president: The court ordered: “The exception of want of citation is overruled.” True the defendant the Alfrey Heading Company has taken no appeal, nor answered the appeal, but it is a party appellee. The judgment dismissing plaintiff’s suit against the Alfrey Heading Company cannot stand. To be explicit, the district court not only dismissed the suit against Spivey and Coffey, but it went further and dismissed the suit against the Heading Company, although exception of want of citation had been overruled, and no other exception nor answer had been filed thereafter. This dismissal was not contradictorily ordered between plaintiff and defendant the Heading Company. For reasons stated, the judgment appealed from is affirmed as to Spivey and Coffey. It is ordered and decreed that it be annulled, avoided, and reversed as to the Alfrey Heading Company, and that as to the Alfrey Heading Company it be remanded for trial. Plaintiff to pay costs of appeal as between it and the appellees Spivey and Coffey. The defendant Heading & Co. is to pay costs of appeal as between it and the plaintiff.