Blanchard v. Zacharie

15 La. 541

• Court: Supreme Court of Louisiana
• Decided: June 15, 1840
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

The plaintiff, having recovered a judgment against Puech •& Duplessis and W. F. C. Duplessis, in solido, in the City Court, caused writs of fieri facias to issue, separately, against the members of the firm and the last named defendant. The execution against the latter was stayed, by order of the plaintiff, upon his giving his notes, with an endorser, for the amount of the judgment against him, payable at different periods, upon condition that the money was not made out of his co-defendants. Upon the execution against Puech & Duplessis, there was a return of no property found. The plaintiff, thereupon, took out writs of capias ad satisfaciendum against each of the members of the firm, separately. The capias against Duplessis was stayed, but Puech was arrested, and gave the bond to keep the prison bounds upon which the present suit is brought against his surety. The defendant sets up, as a defence, the irregularity and illegality of those proceedings, and the consequent nullity of the bond. There was judgment against him, and he appealed.

A return of nulla bona as to one of two defendants, against whom a writ of fieri facias has issued, and the writ being stayed as to the other, a separate ca. sa. cannot legally issue. The execution must conform to the judgment, which is the sole authority that warrants the process. There being but one judgment, there can be but one execution and satisfaction. So, where a judgment in solido is obtained against three defendants, and separate executions issue, but stayed as to one of the defendants, and as to the other two, returned nulla bona, and ca. sas. are taken out against each of them separately, one of which is stayed, and the other gave bond and security for the prison limits: Held, to be illegal, and the surety on the bond discharged: because the plaintiff cannot have, at the same time, a ca. sa. against one, a fi. fa. against a second, and proceedings suspended as to a third.

The counsel for the appellant relies mainly upon the decision of this court in the case of Casson vs. Cureton, 12 Martin, 435.

The principle settled in that case was, that on a return of nulla bona, as to one of two defendants, against whom a writ of fieri facias had issued, and the writ being stayed as to the other, a separate capias could not legally be issued ; that the mode of execution is not at the discretion or caprice of the plaintiff, but that the execution must conform to the judgmerit; and that the clerk, in issuing execution, must strictly follow the judgment, which is the sole authority that war- , . lclllts til6 piOCGSS.

It is obvious, that a departure from these principles might lead to the greatest injustice and oppression. Writs of fieri r . , . . , , jacias, issued separately against debtors, m solido, condemned by the same judgment, would authorize the officers of justice to coerce payment at the same time from each andffll of * ^ them ; whereas, by the judgment, the plaintiff is entitled only to one satisfaction. When t.he public force is employed in the redress of private wrongs, it should be in strict ance with judicial authority.

The counsel for the plaintiff very earnestly combats the authority of that case, and relies on that of Pothier, to show that the creditor may pursue either of his debtors, in solido, or all at the same time, either by way of action or execution. Pothier on Obligations, No. 270. This general principle cannot be denied, so far as it concerns the prosecution of debtors in solido, by ordinary action, or by executory process issued in the first instance, in the cases in which the law allows such summary proceedings. But when the creditor has sued several' debtors, in solido, in the same action, and has recovel'ed a judgment, jointly, against them, we are still of opinion that he is bound to proceed, in the execution of it, ^oim indicated by the judgment itself, and that he cannot have, at the same time, a ca. sa. against one, a fieri ** ® 3 ** against another, and the proceedings suspended as to n tV UHIU*

Held, to be ¡I-surety the bond dischargcu * because the plaintiff have, at the same time, a ca. sa. against one, a ^éemd,a|nTproceedings suspended as to a third.

The judgment of the Parish Court is, therefore, annulled and reversed, and ours is for the defendants, with costs in , ,. both courts.