Williams v. De Soto Bank & Trust Co.

• Decision Date: 07 February 1938
• Docket Number: 34018
• Citation: 189 La. 245,179 So. 303
• Parties: WILLIAMS et al. v. DE SOTO BANK & TRUST CO. et al
• Court: Louisiana Supreme Court

179 So. 303

189 La. 245

WILLIAMS et al. v. DE SOTO BANK & TRUST CO. et al

No. 34018

Supreme Court of Louisiana

February 7, 1938

Appeal from Eleventh Judicial District Court, Parish of DeSoto; Hal A. Burgess, Judge.

Action by Mrs. Mable C. Williams and others against the DeSoto Bank & Trust Company and others for maladministration of a deceased's estate. From a judgment overruling exceptions of the named defendant, and sustaining exceptions of other defendants, plaintiffs appeal, and defendants move to dismiss appeal.

Motion denied.

Henry W. Bethard, Jr., of Coushatta, and Lal C. Blanchard, of Shreveport, for appellants.

Wilkinson Lewis & Wilkinson and Lee & Lee, all of Shreveport, and Craig & Magee and R. S. Williams, all of Mansfield, for appellees.

OPINION

HIGGINS, Justice.

The defendants moved to dismiss the plaintiffs' appeal on the grounds that after the judgment of the lower court was rendered, overruling the exceptions of the codefendant DeSoto Bank & Trust Company, and sustaining the exceptions of the other individual defendants, and dismissing the suit as to them, and pending the appeal taken by the plaintiffs from the adverse judgment, plaintiffs entered into a written agreement with the codefendant, DeSoto Bank & Trust Company through its receiver, releasing it from all further liability upon the payment of $ 3,750, but failed to reserve their rights against the Bank of Commerce & Trust Company, the original principal debtor for whom the individual defendants herein had signed as guarantors or sureties, and further failed to make any reservation in their motion to dismiss the suit as to the DeSoto Bank & Trust Company, after the aforesaid compromise settlement, and thereby released the individual defendants, who were liable in solido with the original debtor.

The plaintiffs resisted the defendants' motion on the grounds (1) that proper reservation of their rights was made in the compromise agreement and settlement, and (2) that the individual codefendants -- the movers in the motion to dismiss -- were not solidarily but jointly and severally liable and, therefore, the provisions of article 2203, Revised Civil Code, relied upon by the defendants, are not applicable.

The record shows that the plaintiffs instituted suit against the DeSoto Bank & Trust Company, as principal obligor, and the individual defendants, as guarantors or sureties, for the sum of $ 142,014.47, with interest, as joint obligors, alleging that the Bank of Commerce & Trust Company had acted as administrator of the succession of Willis W. Williams without bond, and because of maladministration of the affairs of the succession, became indebted to the plaintiffs, as widow and sole heirs respectively of the deceased, for the above sum; that the individual guarantors or sureties became liable as joint obligors, having guaranteed the solvency of the bank; that the Bank of Commerce & Trust Company became insolvent and was closed by the state banking commissioner under the provisions of Act No. 300 of 1910, and all of its assets and property were sold by order of court to the DeSoto Bank & Trust Company, which assumed all of the liabilities of the defunct bank; and that the DeSoto Bank & Trust Company was liable to them as principal and the individual defendants as guarantors.

All of the defendants filed exceptions of nonjoinder of parties defendant and no cause of action, which were overruled as far as the defendant DeSoto Bank & Trust Company was concerned, but sustained as far as the individual defendants were affected, and the suit dismissed as to them. The plaintiff appealed.

Subsequent to the date of the institution of the suit, the DeSoto Bank &amp Trust Company became insolvent and was also closed by the banking commissioner. While the case was pending here on appeal, the plaintiffs entered into a compromise agreement with the receiver of the DeSoto Bank & Trust Company, whereby they settled, in writing, all of their rights, title, and claims involved in this suit against the defendant bank and dismissed the suit as to the bank, without the knowledge or consent of the individual defendants, but, at one and the same time, reserved and held "their claims of indebtedness, suit and causes of action against the remaining defendants (defendants herein being referred to as guarantors) their heirs and legal representatives * * * and dismissed the suit as against the DeSoto Bank & Trust Company, * * * but the execution of this receipt, the relinquishment of the aforesaid claims and the dismissal of the aforesaid suit against the DeSoto Bank & Trust Company, in receivership, and the Federal Deposit Insurance Corporation, in its capacity as receiver for the DeSoto Bank & Trust Company shall in no way be construed as a release or a relinquishment, either for the...