Drew v. Atchison

Bullard, J. The appellee moves to dismiss this appeal, on the ground that this is a joint action and the judgment joint, and that all the defendants have not appealed, nor been made parties to the appeal. We think the motion must prevail. .In joint contracts the Code requires that all the joint obligors should be sued together, even those who may have paid, in order that they may recover back what they have paid, if it should appear that they were not bound ; and no judgment can be obtained against any, unless it be proved that all joined in the obligation, or are by law presumed to have done so. The judgment for costs is in solido, against all the defendants who have not paid. Civ. Code, art. 2080, et seq. This court has the authority, and it often becomes its duty to pronounce such judgments as ought, in its opinion, to have been rendered below. In actions upon joint obligations, this becomes impossible, unless all the parties are before us, as they are required to be in the court of the first instance. Appeal dismissed * Footnotes [*] On an application for a re-hearing, the counsel for the appellants, cited the case Burke v. Erwin’s heirs, 6 La. 320, and Brander et al. v. Garrett et al, 19 Ib. 455. In the last case the court say: “ This is an action against Garrett and others, on a promissory note, in the form of a jQint obligation.” “ Garrett is not a party to the appeal; but it becomes neeessary to go into his defence, as it appeared, by answers of the plaintiffs, that the whole debt was Garrett’s, and that the co-obligors were his sureties,^ &c. Re-liearing refused.