Schwartz v. Rankin Tuck Paint Co.

Louisiana Court of Appeal

Schwartz v. Rankin Tuck Paint Co.

6 Teiss. 113, 1909 La. App. LEXIS 35

CourtLouisiana Court of Appeal

DecidedJanuary 22, 1909

DocketNo. 4547

StatusPublished

This text of 6 Teiss. 113 (Schwartz v. Rankin Tuck Paint Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. Rankin Tuck Paint Co., 6 Teiss. 113, 1909 La. App. LEXIS 35 (La. Ct. App. 1909).

Pincite

Opinion

ESTOPINAL, J.

The motion to dismiss was timely. The appeal was lodged in this Court on Wednesday, June 24, 1908. The mover has three judicial days in which to file his motion to dismiss. That day is treated as a legal half-holiday, though it be a legal half-holiday only. The motion to dismiss filed on Monday, June 29, was timely. Act No. 3, 1904; Act 6, 1904.

A member of a partnership being bound, either jointly as in case of an ordinary partnership or in solido, as in ease of a commercial partnership for the debts of the firm, is not a competent surety on an appeal by that firm.

He has not the “legal capacity” to become such a surety. Barrow et al vs. Clock, 45 A. p. 478. Such a case distinguishes itself from that of a corporation officer who may become a surety for his company, as corporations have an existence separate and apart from the individuals who compose them. In the same manner, any executor or officer or person acting in a representative capacity who is 'directh' liable or responsible person[114]*114ally for his acts cannot become surety in his personal capacity for appeals taken by him in his official capacity. He cannot become responsible as principal and surety for the same obligation at one and the same time

January 22, 1909. Rehearing refused, February 26, 1909.

The appeal must be dismissed and it is so ordered.

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ESTOPINAL, J.

The motion to dismiss was timely. The appeal was lodged in this Court on Wednesday, June 24, 1908. The mover has three judicial days in which to file his motion to dismiss. That day is treated as a legal half-holiday, though it be a legal half-holiday only. The motion to dismiss filed on Monday, June 29, was timely. Act No. 3, 1904; Act 6, 1904.

A member of a partnership being bound, either jointly as in case of an ordinary partnership or in solido, as in ease of a commercial partnership for the debts of the firm, is not a competent surety on an appeal by that firm.

He has not the “legal capacity” to become such a surety. Barrow et al vs. Clock, 45 A. p. 478. Such a case distinguishes itself from that of a corporation officer who may become a surety for his company, as corporations have an existence separate and apart from the individuals who compose them. In the same manner, any executor or officer or person acting in a representative capacity who is 'directh' liable or responsible person[114]*114ally for his acts cannot become surety in his personal capacity for appeals taken by him in his official capacity. He cannot become responsible as principal and surety for the same obligation at one and the same time

January 22, 1909. Rehearing refused, February 26, 1909.

The appeal must be dismissed and it is so ordered.

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Bluebook (online)

6 Teiss. 113, 1909 La. App. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-rankin-tuck-paint-co-lactapp-1909.