Sydalise Thompson v. Girard Chrétien and another, 3 Rob. 26

Simon, J. The appellant seeks the reversal of a several judgment against him for the whole claim of the plaintiff on a contract by which his co-defendant and himself are alleged to be bound to account for sundry tracts of land, slaves, &c., conveyed to them by Thompson the deceased, to indemnify them and a co-heir of theirs, against the consequences of a suretyship into which their ancestor entered for the husband of the plaintiff, in his bond to the United States as collector of a certain tax.

The District Court sustained the plea of his co-defendant to its jurisdiction, on the ground of his being a resident of another parish. The counsel for the defendant Hypolite Chrétien, urges that nothing is due to the plaintiff; that if any thing was due, he was liable for one half only; and that the action being a joint one, no judgment can be given otherwise than contradictorily with both the joint defendants. The view which we have taken of this case, renders it useless that we should attend to either of the two first grounds of defence.

The obligation of the defendants is a joint one, for they bound themselves to do the same thing, and the Civ. Code, art. 2075, provides, that “ when several persons join in the same contract, to do the same thing, it produces a joint obligation.” In every suit on a joint contract, all the obligors must be made defendants (Civ. Code, art. 2080); even where one of them has performed his párt of the obligation (Ib. art. 2082); and “ the judgment must be rendered, against each defendant separately for his proportion." Ib. art. 2081.

The counsel for the appellee has contended that he complied with all the requisites of the Code in making both the joint obligors parties to the suit, and that the act of the court in dismissing one of the defendants, ought not to be visited on the plaintiff. To this, the counsel for the appellant has replied, that it does not suffice that all the obligors should be made parties ; but it is essential that all should remain in court till judgment is pronounced, for otherwise it cannot be rendered according to the provisions of the Code, in art. 2081. He has relied on the case of Loussade v.

Hartman et al. 16 La. 119, in which we reversed the judgment, because it was rendered against two obligors only, although four of them were named as defendants in the petition, but not cited. In the case of Mayor &c. of New Orleans v. Ripley et al., 5 La. 120. We affirmed a judgment ordering the discontinuance of a joint suit, on the ground that the plaintiff had discontinued it as to some of the defendants. This court was so fully impressed, in the case of Toby et al. v.

Hart et al., 8 La. 523, with the necessity of all the joint obligors being made parties to the suit, that we thought ourselves authorized by that necessity to create an additional exception to the general rule of the Code of Practice, art. 162, that “ one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence,” and we held that parties contracting joint obligations, may be considered as having waived their personal privilege. The present case, however, differs from that of the Mayor &c. v.

Ripley et al., in this, that in that case the plaintiffs dismissed some of the obligors, and from that of Loussade v. Hartman et al. in this, that there the plaintiff neglected to have two of the defendants cited, while the present plaintiff submitted to the decision of the court (notwithstanding her opposition,) sustaining the plea to the jurisdiction of the defendant’s co-obligor, whom they had made defendant. The law leaves to every suitor the right, and the means, of averting an injury which may result to him from any erroneous decisions of an inferior court.

If he neglects to exercise that right, and to use those means, he alone is to blame ; and he cannot avail himself of his own neglect, to resist the exercise of any right which this neglect may give to 4he other party. Unicuique sua culpa nocet. The plaintiff might have appealed immediately from the interlocutory order sustaining the plea to the jurisdiction, and even after the final judgment he might, perhaps, have appealed and obtained relief. That the order was an erroneous one, clearly results from our decision in the case of Toby et al. v. Hart et al.

It is, therefore, ordered that the judgment be annulled, and that ours be for the defendant and appellant as in case of nonsuit, with costs in both courts.