W. B. Thompson & Co. v. American Surety Co.

• Decision Date: 30 June 1916
• Docket Number: 20585
• Citation: 72 So. 430,139 La. 888
• Parties: W. B. THOMPSON & CO. v. AMERICAN SURETY CO
• Court: Louisiana Supreme Court

72 So. 430

139 La. 888

W. B. THOMPSON & CO. v. AMERICAN SURETY CO

No. 20585

Supreme Court of Louisiana

June 30, 1916

SYLLABUS

(Syllabus by the Court.)

An action will not lie against the surety on the bond of an administrator 'until the necessary steps have been taken to enforce payment against the principal.'

Hewes &amp Smith, of New Roads, for appellant.

Albin Provosty, of New Roads, for appellee.

Statement of the Case.

PROVOSTY, J., recused himself.

OPINION

MONROE, C. J.

Plaintiff (a commercial firm) seeks to recover from defendant, as surety of the administratrix of the succession of Oliver St. Dizier, deceased, amounts aggregating $ 10,840.82. The trial judge reached the conclusion that the suit had been 'prematurely instituted and must be dismissed at plaintiff's cost,' and, so stating in his written opinion, gave judgment 'rejecting the demands of said plaintiff and dismissing its suit.' Plaintiff has appealed; defendant has not answered the appeal; and, as the case has been considered, in the trial court, only with reference to the question of prematurity vel non, we shall confine our attention to that question and the question of the proper judgment to be rendered in the premises.

The suit is the latest proceeding in a long litigation, the general features of which, briefly stated, are as follows:

Oliver St. Dizier, planter and merchant, doing business in the parish of Pointe Coupee, and conducting his mercantile business as senior member of the firm of O. St. Dizier & Co., died in 1907, and his widow was appointed administratrix of his succession, with the defendant herein (after an interval) as the substituted surety on her bond of $ 20,000. On September 21, 1909, the administratrix filed a provisional account, to which plaintiff herein interposed an opposition, alleging that it was a creditor of St. Dizier & Co., and of the succession and was entitled to be so recognized, further alleging that the administratrix had failed to account for various items of property and money belonging, or due, to said firm, and to the estate; that she claimed certain credits, to which she was not entitled, and proposed to make certain payments, which were unauthorized; and praying that the account be amended; and there was judgment, April 18, 1910, directing that opponent be recognized as an ordinary creditor and that the account be amended in several other particulars, as prayed. On May 19, 1910, an amended provisional account was accordingly filed, to which, also, plaintiff interposed an opposition (not copied in the transcript), and there was judgment, on February 29, 1912, ordering a further amendment, and, by virtue of which, it is claimed by plaintiff (and denied by defendant) that it (plaintiff) was accorded the status of a preferred creditor and ordered to be paid, as such, from funds in the hands of the administratrix. Thereafter, on August 3, 1912, Mrs. St. Dizier died, and her son James O. St. Dizier was appointed administrator of her succession, and, on April 28, 1913 (nearly nine months after her death), he succeeded his mother as administrator of his father's succession. In the meanwhile that succession having no representative, several of the judgment creditors caused writs of fieri facias to issue by virtue of which a balance in bank to the credit of the deceased administratrix was seized and appropriated to the payment of their claims; plaintiff, proceeding under the judgments rendered in its opposition, having realized $ 183.38 in that way on April 18, 1913, and on July 9th following, having issued another fi. fa., under which the sheriff made a demand on the then administrator (of the succession of Oliver St. Dizier), and also on the plaintiff, to point out property, and, on their failure so to do, 'by order of plaintiff, attorney,' returned the writ 'not satisfied.'

In September, 1913, without further proceedings against the administrator of the succession of Oliver St. Dizier, the deceased principal upon the bond here sued on, plaintiff brought this suit against her surety, alleging the matters thus stated and also that the succession on Mrs. St. Dizier is insolvent.

Opinion.

The Civil Code declares that:

'Art. 3035. * * * Suretyship is an accessory promise, by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.'

'Art. 3066. * * * A judicial surety cannot demand the discussion of the property of the principal debtor.

'But no suit shall be instituted against any surety on any appeal bond, nor no the bond of any administrator, tutor, curator, executor or syndic, until the necessary steps have been taken to enforce payment against the principal.

'The mode of proceeding against sureties on official bonds is prescribed by special laws.'

See, also, R. S. §§ 1476, 2354, 3715, 3724.

The law prescribing the 'necessary steps' to enforce against the administrator, the payment of a claim due by a succession, as a condition precedent to a suit against the surety on the bond of such administrator, is found, in the main, in articles 987, 989, 1053, 1054, 1055, 1056, 1057 of the Code of Practice. Carriere & Borduzat v. Meyer et al., 16 La. 126; Wilson v. Murrell, 6 Rob. 68; Kemper v. Splane et al., 4 La.Ann. 486; Phelps v. Sawyer, 7 La.Ann. 551; Castille v. Chacere, 13 La.Ann. 561; Lobit & Charpentier v....