Alling v. Woodruff

Land, J. Li the suit of Jacob Mussina against William Ailing, Charles Stillman, Samuel A. Behlen, Elisha Passe, and 'Robert, IT. Hord, instituted in the Fourth District Court of Now Orleans, the plaintiff was ruled to give security for the defendants’ costs in the sum of one thousand dollars. And in.pursuance of the order of the court, the plaintiff'executed his bond in favor of the above named defendants, with A[artin Owen <C Co., and John 0. Woodruff & Co., as his securities, conditioned for the payment of the defendants’ costs, in the event of the failure of the plaintiff to obtain a final decree in his favor, or faithfully to disohargo.said costs in the above mentioned suit. The plaintiff Mussina in that suit having failed to obtain a filial decree in his favor, and having- failed to discharge the costs incurred, the defendant William Ailing paid the same, to the amount of five hundred and ninety dollars and seventy cents. And as one of the. obligees in the bond, he has instituted this suit against the sureties of AD/ssina for' the recovery of the amount of costs paid bjr him. Before answering to the merits, the defendants filed an exception to the plaintiff’s demand, on the ground that the bond sued on is a joint obligation in favor of all the defendants to the suit of Mussina, and that all of •said joint obligees have not been made parties with tlie plaintiff to this suit. The exception was overruled by the Judge a. quo; and after answer filed, judgment was rendered in favor of the plaintiff against the sureties on the. bond, and they have appealed and insist oil the validity of tlioir exception to the plaintiff’s petition. The bond given in the suit of Mussina, and on which this suit was instituted by tlie plaintiff, is a joint obligation in favor of all tlie defendants as joint obligees, and they must unite in order to enforce by action a per [7] formance of tlie contract. In tlie case of a joint obligation as to the obli-gees, there arises in their favor only a joint right of action which can only be exercised in a suit jointly instituted by them. The law does not permit a multiplicity of suits on an obligation joint as to the obligors; nor does the law allow a multiplicity of actions for the enforcement of a contract joint as to the. obligees. The plaintiff’s suit is on the bond in which the other obligees have a joint interest, and a judgment in favor of the. plaintiff for the amount of costs paid, would not be a satisfaction of the bond as to the other obli-gees, oven after payment, nor estop them from suing the defendants on the bond in a different suit, as a judgment would, if rendered on an obligation In solido in favor of the obligees. The defendants therefore have an interest iu requiring all the obligees in the bond to be. joined in a suit instituted to enforce a performance of the contract. The exception was well taken and must be sustained. For the reasons assigned it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the exception be sustained, and the suit dismissed at plaintiff’s costs in both courts,