Dubuisson v. Long

• Decision Date: 20 July 1932
• Docket Number: 31719
• Citation: 143 So. 494,175 La. 564
• Court: Louisiana Supreme Court
• Parties: DUBUISSON v. LONG et al

143 So. 494

175 La. 564

DUBUISSON v. LONG et al

No. 31719

Supreme Court of Louisiana

July 20, 1932

Rehearing Denied October 4, 1932

Edward Dubuisson, of Opelousas, for appellant.

L Austin Fontenot, of Opelousas, for appellee J. S. Brock State Bank Com'r.

Lewis &amp Lewis and Haas & Haas, all of Opelousas, and Denegre, Leovy & Chaffe, of New Orleans, for appellee St. Landry Bank & Trust Co.

ST. PAUL, J., concurs in the result.

OPINION

ODOM, J.

Plaintiff alleges that he is president and a member of the board of directors of the Opelousas-St. Landry Bank & Trust Company, domiciled in Opelousas, La., and that on December 11, 1931, he called on J. S. Brock, state bank commissioner, at his office in New Orleans, seeking advice concerning the 'dangerous condition of the bank's reserves and the manner in which they were being rapidly depleted; that for some months the withdrawals had been exceeding the deposits; that many of the withdrawals were abnormal, that is to say, not made in the ordinary course of business, but to hoard the money or to transfer it to some other bank * * * ; the bank's reserves had dropped to somewhere near the limit below which they should not be allowed to fall under the law * * *; that at this interview with said State Bank Commissioner petitioner laid these matters and things before him.'

Petitioner then alleges that he was informed by the commissioner that $ 150,000 could be raised for the bank's relief, if that sum were sufficient, and that it was agreed that the commissioner would go to Opelousas, look over the situation, and determine for himself what should be done.

Petitioner further alleges that during his absence from Opelousas checks were drawn on the bank which, if paid, 'would practically wipe out its cash on hand and with banks,' and that under such conditions, petitioner caused the bank to be closed, which action was unanimously approved by the board of directors.

It is alleged that the state bank commissioner investigated the condition of the bank, and that thereafter Huey P. Long, then Governor of the state, appeared upon the scene and at once 'proceeded to the task of organizing a new bank for the express purpose of taking over the affairs of said Opelousas-St. Landry Bank & Trust Co. * * * and proceeded at the same sitting to dictate an act of transfer by which all the property, rights and credits of said Opelousas-St. Landry Bank & Trust Co. were to be transferred by said State Bank Commissioner to said proposed new bank, christened by its creator and sponsor 'St. Landry Bank & Trust Co. of Opelousas.'

It is further alleged that all the assets of the old bank were transferred by the commissioner to the new bank under conditions which need not be here stated. By supplemental and amended petition filed by plaintiff, it appears that the proposed transfer of the assets of the old to the new bank was approved by order of the district court, dated December 15, 1931.

Petitioner alleges that 'said purported transfer was and is an absolute nullity' for reasons which we deem unnecessary to state, and he prays for judgment annulling and setting aside said transfer and ordering the new bank to return to the old bank all of the property, rights, and credits belonging to the latter and --

'Condemning the said Huey P. Long, the said J. S. Brock, State Bank Commissioner, and the St. Landry Bank & Trust Co. of Opelousas in solido to pay said Opelousas-St. Landry Bank & Trust Co. for such of its property, rights and credits as may have been alienated or dissipated by said St. Landry Bank & Trust Co. of Opelousas while in possession thereof.'

No citation or service was made on Mr. Long (then Governor and now United States Senator). The other defendants, J. S. Brock, state banking commissioner, and the St. Landry Bank & Trust Company of Opelousas, were cited and served and in limine filed exceptions to the petition:

'(1) Because there is a misjoinder of party defendants in that one Huey P. Long is joined with your defendants, and who has no interest, real, personal or otherwise, in this litigation or the subject matter thereof;

'(2) Because the said Long, made defendant herein was not a party signatory to the contract which is the sole subject matter of this suit, and no right or interest is stated or shown in the plaintiff's petition, original or supplemental, whereby he is entitled to be made a party defendant herein.'

This exception of misjoinder was sustained by the trial court, and plaintiff's suit was dismissed at his costs. He appealed.

1. The trial judge stated, in his written opinion, that it was clear to him that Mr. Long, then Governor of the state, was erroneously joined in the suit as a party defendant. His reasons for so holding seem sound to us. But that is beside the question. Mr. Long has not been cited or served, has made no appearance, and has not complained at being joined in the suit as defendant with the others. The question is whether J. S. Brock, the state banking commissioner, and the St. Landry Bank & Trust Company of Opelousas, who are admittedly proper parties defendant, may raise the issue, conceding that Mr. Long was improperly joined in the case.

Our conclusion is, and we hold, that even though Mr. Long was improperly joined as a party defendant, and even if the petition does show that no judgment could be rendered against him, the defendants who are properly joined cannot raise the issue of misjoinder as to him.

In the case of Gill v. City of Lake Charles, 119 La. 17, 43 So. 897, it was observed that our Code of Practice 'makes no provision for determining when parties may or may not be joined either as plaintiffs or defendants,' and said:

'We look in vain for them in the Spanish and French systems of procedure prevailing at the time of the adoption of our Code of Practice; but we find them in the common-law books, and we know that our Code of Practice was derived largely from that system, while our Criminal Procedure was taken bodily from it. The rules there laid down are safe guides, all the more so because they are not the product of arbitrary legislation, but the gradual result of the application of pure reason to the exigencies of cases in actual practice.' (Italics the writer's).

The court in that case did not have under consideration the precise question here presented. But the case is in point here, in that it is pointed out that our Code of Practice 'is singularly silent on the subject of joinder of parties,' and that as to the systems of procedure prevailing at the time of the adoption of the Code, 'we find them in the common-law books, and we know that our Code of Practice was derived largely from that system' and 'the rules there laid down are safe guides.'

We look in vain, not only to our Code of Practice, but to our reported cases, for a rule of procedure to guide us in a case where an exception of misjoinder is filed and insisted upon by those of the defendants who are properly joined as such, because another defendant or other defendants are improperly joined. But in the absence of such a rule laid down in our books, we follow that which prevails at common law, a rule which is well founded in common sense and reason, and hold that an exception of misjoinder of parties defendant is personal to him who is improperly joined and is not open to those who are properly joined.

2. It would be a useless expenditure of time and a waste of energy to cite the numerous cases from other jurisdictions announcing this rule. Suffice it to say that the authorities are practically unanimous to that effect.

In the American Digest, Century Edition, vol. 37, p. 2564, § 149, under the general heading 'Parties,' it is stated:

'Defendant can not raise an objection as to misjoinder of other parties defendant. The objection lies only with the party who is improperly joined.'

In support of this statement there are cited cases from Alabama, Iowa, Minnesota, Mississippi, Missouri, Nebraska, New York, Ohio, Tennessee, Colorado, Indiana, Michigan, and Wisconsin.

In the same Digest, Decennial Edition, First Series vol. 15, +91, heading 'Parties,' the rule is thus stated:

'The objection that there is a misjoinder of parties defendant is open only to a defendant who has been improperly joined.'

By referring to the same key number (91) under the general heading 'Parties,' in the second and third Decennial and the Current Digest, it will be found that the rule is there stated in practically the same language. The rule is similarly stated in Corpus Juris, vol 47, p. 229 (§ 449) d, under the general heading 'Parties':

'It is ordinarily held that an objection to misjoinder of parties defendant can be raised only by the party improperly joined and can not be raised by another defendant, who is properly joined and against whom a cause of action is stated especially...