Scharff v. Noble
| Decision Date | 18 November 1889 |
| Citation | 67 Miss. 143,6 So. 843 |
| Parties | L. & A. SCHARFF v. W. H. NOBLE |
| Court | Mississippi Supreme Court |
FROM the circuit court of Bolivar county, HON. J. H. WYNN, Judge.
The appellants brought this suit against the appellee to recover the amount due upon an acceptance of Trager & Noble, a firm of which appellee was a partner. The defendant filed a special plea alleging that when the acceptance was given the said firm was a partnership doing a planting business in the state of Louisiana, and was what is termed in that state an "ordinary partnership," and under the laws of Louisiana the said debt was a joint debt, and not joint and several; that before the institution of this suit plaintiffs brought suit on said acceptance in the circuit court of Wilkinson county, Mississippi, against both Trager and appellee, but voluntarily dismissed as to appellee, and recovered judgment for the full amount of said acceptance against Trager; and that this operated as a discharge of appellee.
Plaintiffs demurred to this plea; [1] because the legal effect of the plea was to admit liability for one-half of the indebtedness and defendant failed to tender the amount confessed to be due; [2] because it was not alleged that the debt had been paid; because [3] the dismissal of that suit as to appellee and recovery of judgment against Trager, did not affect the right to bring this suit.
The demurrer was overruled, and plaintiffs declining to reply judgment final was entered in favor of defendant, and plaintiffs appealed.
Judgment reversed, demurrer sustained and cause remanded.
Clark & Sillers, for appellants.
It makes no difference whether the contract sued on in this case was a joint or joint and several obligation so far as the remedy for its enforcement in this state is concerned. The lex fori governs as to the remedy in all cases, and, therefore, the fact that under the laws of Louisiana it would have been necessary to prosecute this suit to a judgment against both of the parties to the contract does not compel us to proceed in that manner here. Code 1880, § 1134.
Appellants had a perfect right to dismiss their action against appellee in the circuit court of Wilkinson county, and their action in so dismissing the suit in that county did not debar them from again instituting the suit against Noble. A dismissal of a suit is no bar to any future action for the same debt, except in those cases where a judgment against one is a satisfaction of the debt against all of the parties to the contract. See 1 Pet. 74; 1 Saunders R. 207 [n. 2]; 2 How. [Miss.] 870, and cases there cited.
Appellants do not pretend that the debt was satisfied by the judgment against Trager, or that anything has ever in fact been paid on the debt, but they simply insist that because the debt sued on was a joint obligation under the laws of Louisiana, appellee was freed from any further liability on it by the dismissal of the suit against appellee in the circuit court of Wilkinson county.
Frank Johnston, on the same side.
Nugent & McWillie and Chas. Scott, for appellee.
The appellee and Trager were not members of a commercial partnership, but of what is known under the laws of Louisiana as an "ordinary partnership," and were not bound jointly and severally, but each for his own share of the debt according to the number of partners. Rev. Civil Code La. [Voorhees, 1875], arts. 2272, 2824; Jones v Chaperton, 15 La. An. 475; Lallande v. McRae, 16 Ib. 193; ...
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