School Board v. Weber , 30 La. Ann. 593 ( 1878 )

The opinion of the court on the original hearing was delivered by Manning, C. J., and on the rehearing by Egan, J.

Manning, C. J.

Weber was formerly treasurer of the School Board of West Eeliciana, and this suit is upon his official bond, in which judgment is sought against him and his sureties. The suit was filed in Oct. 1877, and it seems that Weber had changed his residence to Ascension in the preceding January.

On Nov. 9, 1877, he pleaded to the jurisdiction, and on same day filed an exception, but with express reservation of his rights under the former plea, and without prejudice thereto. On 17th. of same month, he answered and in his answer, reconvened. There was no reservation of any rights under the plea to the jurisdiction in the answer, nor do the minutes shew that the court received it without prejudice to that plea.

The lower court sustained the plea to the jurisdiction, and dismissed the suit as to all parties — the grounds of dismissal as to the sureties being, that no judgment could be rendered against them until the amount of the defalcation of the principal shall first be judicially ascertained.

Prior to 1861, the Code of Practice declared the general rule in civil matters to be that one must be sued before the judge having jurisdiction over the place of his domicil, but that the rule was subject to several exceptions, art. 162. In that year, that article was amended so as to read — “it is a general rule in civil matters that,one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence, and shall not be permitted to elect any other domicil or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided by law.” Acts 1861, p. 137.

The two particulars in which the article was amended are, that the privilege of electing a domicil for the purpose of being sued was expressly denied thereafter, and the clause that the rule is subject to several exceptions is altered to read, that it is subject to those exceptions expressly provided by law.

Sec. 2. chap. 2 of the Code of Practice treats of the tribunals before which actions are to be brought. Art. 162 is the first one under that head. Art. 165 enacts that there are other exceptions to this rule (i. e. the rule of art. 162) and enumerates them. The 7th. class of exceptions is, in suits to enforce the collections of bonds of state and parish officers, the courts of the parish, in which the officers exercise the duties of their offices, shall have jurisdiction over the sureties, it matters not in what parish they may reside.

If the sureties on an official bond may be compelled to answer a. judicial demand against them, based upon the malfeasance of their principal, out of their own domicil, a fortiori must the officer himself be .amenable to the jurisdiction of the court of that parish in which he exercised his functions and to which he had subjected himself. The Code appears to assume as indisputable that the officer can be sued nowhere else, and in order that the rights of all parties may be determined in one action, compels the sureties to answer before one who is not their judge, and in order to compel them, is at pains to include them in a special exception to the general rule touching jurisdiction, the effect of which would be wholly nugatory if the principal were not suable at the same place and time with them. The exception should not have been sustained. Therefore

It is adjudged and decreed that the judgment of the lower Court is reversed, and the cause is remanded to be proceeded in according to law, the appellee paying costs of appeal.