Breaux Bridge Lumber Co. v. Hebert

46 So. 206, 121 La. 188, 1908 La. LEXIS 651

Opinion

PROVOSTX, J.

The plaintiff company brings this suit against two defendants in trespass. It is not possible to ascertain from the petition whether it is claimed that in their alleged trespass the defendants acted together or separately. The allegation is simply that they have trespassed upon plaintiff’s land by cutting down and removing timber. The prayer is simply for an injunction, and for judgment against the defendants for $1,000, with nothing said as to solidary liability.

The court sustained an exception of misjoinder, based on the failure of the petition to allege that the defendants were joint trespassers, or even to pray for judgment against them in solido; so that, for all that appears, defendants may have been separate, and not joint, trespassers.

Solidary liability is not presumed, and pleadings are construed against the pleader. The pleader is presumed to have made his pleadings as strong as he could. 4 E. of P. & P. p. 746. The presumption is, therefore, that the defendants were separate trespassers; and, such being the case, they were improperly joined in one suit.

Judgment affirmed.