Griffing's Administratrix v. Caldwell

Supreme Court of Louisiana

Griffing's Administratrix v. Caldwell

16 La. 294

CourtSupreme Court of Louisiana

DecidedOctober 15, 1840

StatusPublished

Cited by1 cases

This text of 16 La. 294 (Griffing's Administratrix v. Caldwell) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Griffing's Administratrix v. Caldwell, 16 La. 294 (La. 1840).

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Opinion

Martin J.,

delivered the opinion of the court.

This is an action against the principal and his sureties on a promissory note. He failed to answer, and judgment by default was made final against him.

The sureties severed in their defence, and pleaded that the plaintiff had indulged the principal with time, and also claim the benefit of discussion. There was judgment against them, and both principal and sureties appealed*

The appellee’s counsel on a suggestion of diminution of record, which disabled her from proceeding against the principal, obtained a certiorari, and moved that the case proceed to judgment against the sureties. This was resisted, on the ground that a plaintiff who has made several persons defendants, cannot, without dismissing the suit as to oné of them, proceed against the rest.

The appellee’s counsel has admitted this, but has contended that the cause being continued as to the principal, by the allowance of the certiorari, nothing ought to prevent him from proceeding against the sureties.

The sureties have an interest that judgment should be rendered against the principal and them simultaneously, for if the case be first tried against them, and judgment afterwards be given for the principal, it will be difficult to avail themselves of the discharge of the latter. In the present case the judgment provides, that it be first executed against the principal, which cannot be done unless there be judgment against him in this court. If, as the appellee requires, this conditional judgment be reversed, and an absolute one be given against the sureties, they will still have an interest, [296]*296that judgment be rendered against their principal at the same time, for as soon as they will have paid the debt, they will be subrogated to the rights of the plaintiff, against the principal debtor, and have the right to take out execution against him. . . . . ° . ° . JLhis, in our opinion, entitled the sureties to a continuance, for it would be unjust, that without any neglect or laches on their part, they should lose those advantages because of the continuance as to the principal on the motion, and for the benefit of the plaintiff.

The case must, therefore, be continued, as to all the defendants.

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Martin J.,

delivered the opinion of the court.

This is an action against the principal and his sureties on a promissory note. He failed to answer, and judgment by default was made final against him.

The sureties severed in their defence, and pleaded that the plaintiff had indulged the principal with time, and also claim the benefit of discussion. There was judgment against them, and both principal and sureties appealed*

The appellee’s counsel on a suggestion of diminution of record, which disabled her from proceeding against the principal, obtained a certiorari, and moved that the case proceed to judgment against the sureties. This was resisted, on the ground that a plaintiff who has made several persons defendants, cannot, without dismissing the suit as to oné of them, proceed against the rest.

The appellee’s counsel has admitted this, but has contended that the cause being continued as to the principal, by the allowance of the certiorari, nothing ought to prevent him from proceeding against the sureties.

The sureties have an interest that judgment should be rendered against the principal and them simultaneously, for if the case be first tried against them, and judgment afterwards be given for the principal, it will be difficult to avail themselves of the discharge of the latter. In the present case the judgment provides, that it be first executed against the principal, which cannot be done unless there be judgment against him in this court. If, as the appellee requires, this conditional judgment be reversed, and an absolute one be given against the sureties, they will still have an interest, [296]*296that judgment be rendered against their principal at the same time, for as soon as they will have paid the debt, they will be subrogated to the rights of the plaintiff, against the principal debtor, and have the right to take out execution against him. . . . . ° . ° . JLhis, in our opinion, entitled the sureties to a continuance, for it would be unjust, that without any neglect or laches on their part, they should lose those advantages because of the continuance as to the principal on the motion, and for the benefit of the plaintiff.

The case must, therefore, be continued, as to all the defendants.

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16 La. 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffings-administratrix-v-caldwell-la-1840.

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