Brock v. First State Bank & Trust Co.
Decision Date | 21 June 1937 |
Docket Number | 34436 |
Citation | 187 La. 766,175 So. 569 |
Parties | BROCK, State Bank Com'r, v. FIRST STATE BANK & TRUST CO. et al |
Court | Louisiana Supreme Court |
Rehearing Denied July 8, 1937
Rule nisi made absolute, writs perpetuated, judgment of district court annulled and set aside, exception of prematurity overruled, and case remanded for further proceedings.
Ponder & Ponder, of Amite, for relator.
Robert S. Ellis and Mary Purser, of Amite, for respondents.
This is an action by the State Bank Commissioner in charge of the liquidation of the Tangipahoa Bank & Trust Company against the First State Bank & Trust Company, in liquidation, and Charles H. Houlton, William L. Houlton, and Richard A. Kent in solido, to recover the sum of $ 115,529.20, representing the balance due on the note of the defendant bank, guaranteed by the individual defendants.
The defendant guarantors filed an exception of prematurity on the ground that plaintiff must exhaust his remedies against the primary obligor, the maker of the note, before proceeding against those secondarily liable, the guarantors.
The exception was sustained and the suit dismissed as to the individual defendants as guarantors.
Plaintiff applied to this court for writs of prohibition, mandamus, and certiorari, which were granted, and, in response to the rule nisi, the returns of the trial judge and the respondents and the record were filed here.
The note and the guaranty sued upon and pledged to the Reconstruction Finance Corporation read as follows:
Upon the maturity of the note, which was reduced to the above balance, it was protested for nonpayment against the First National Bank & Trust Company, in liquidation, Charles H. Houlton, William L. Houlton, and the heirs of Richard A. Kent, who died after the execution of the guaranty but before the maturity of the note.
It will be observed that the guaranty executed by the individual defendants is absolute and unconditional. They bound themselves, in solido, to pay the note at its maturity, less such credits that might be applied to the note before maturity by the liquidators of the defunct debtor bank.
It has been held that a contract of guaranty in this state is equivalent to a contract of surety. Rev.Civ.Code, art. 3035; Gasquet v. Thorn, 14 La. 506; Graves v. Scott & Baer, 23 La.Ann. 690; Alter v. Zunts, 27 La.Ann. 317; Lachman & Jacobi v. Block & Bro., 47 La.Ann. 505, 17 So. 153, 28 L.R.A. 255.
Principals and guarantors or sureties who have bound themselves in solido, unconditionally, may be jointly sued in the...
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