Gaillard v. Bordelon

The opinion of the Court was delivered by Fenner, J. Plaintiffs, as heirs of Joseph Gaillard, who died in 1852, allege that their mother, OdyleMarcot, qualified as administratrix of his succession and furnished bond with Jules Charles Desfossé as surety; that she received valuable property of said succession, which [391] she converted to her own use, and died in 1881, without ever rendering any account of her administration ; that Desfossé, the surety on her bond, died in 1880, leaving defendant as universal legatee, who, they aver, had unconditionally accepted his succession, and is, therefore, liable for all its obligations. They bring this action against defendant as representative of Desfossé, surety, to recover the amount of their father’s succession. Numerous defenses are interposed, of which it is only necessary to notice one, viz: that plaintiffs have no right to sue the surety on the bond “ until the necessary steps shall have been taken to enforce payment against the principal.” Such is the express provision of the law, repeated in no less than six Sections of the Revised Statutes: Secs. 19, 1476, 2354, 3715, 3724, 3857. The provision is originally derived from an Act of 1842, (p. 302) amended by an Act of 1866, (p. 42). It has been frequently interpreted and enforced by this Court. Wilson vs. Murrell, 6 Rob. 68; Kemper vs. Splane, 4 An. 486; Canal Co. vs. Brown, 4 An. 545; Phelps vs. Sawyer, 7 An. 551; Lobit vs. Castille, 13 An. 563. Reference to these cases will show what steps are necessary against the principal. The authorities quoted by plaintiffs’ counsel all ante-date the passage of the law, except 28 An. 113, which was not a proceeding against a surety. They are obviously without application. The only proceeding which plaintiffs have taken against the principal is a suit instituted against her prior to her death, which had abated before trial, and had not been revived or determined. If her insolvency had been judicially determined in mortuary proceedings duly opened, the case might fall within the authority of Succession of Lynch, 14 An. 235. But we find no precedent for accepting the mere testimonial proof of one of the plaintiffs, that she left no property, as conclusive on that question. The “ necessary steps to enforce payment against the principal,” positively required by law as a condition precedent to this action, are entirely wanting. Judgment affirmed at appellants’ cost.