Bush Const. Co., Inc. v. Carr ( 1986 )

486 So. 2d 183 (1986)

BUSH CONSTRUCTION COMPANY, INC.
v.
Jacqueline CARR and Robert S. Robertson.

No. 85 CA 1401.

Court of Appeal of Louisiana, First Circuit.

March 25, 1986. Rehearing Denied April 29, 1986. Writ Denied June 20, 1986.

William J. Jones, Jr., James I. Regan, Covington, for plaintiff, appellee.

Jacqueline Carr, Slidell, in pro per.

Robert S. Robertson, Morgan City, in pro. per.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

PER CURIAM.

This case comes to us on motion to dismiss the appeals of Jacqueline Carr and Robert Robertson. We grant the motion, and dismiss the appeals.

Plaintiff, Bush Construction Company, Inc., filed the present action to recover the balance allegedly due it on a promissory note executed in its favor by Pink Panther Park and Campground of Slidell, Inc., and endorsed by Louis Blaum, Jacqueline Carr, and Robert Robertson. The note evidences a debt owed by Pink Panther to Bush Construction for road construction services performed in the campground. Both Pink Panther and its President, Louis Blaum, are in bankruptcy proceedings. Plaintiff named as sole defendants the endorsers of the note, Robertson and Ms. Carr.

Defendants filed exceptions of nonjoinder of an indispensable party and nonjoinder of a necessary party, seeking to have Pink Panther joined as a party defendant. The trial court overruled the exceptions and defendants appealed.

A judgment overruling exceptions of nonjoinder is interlocutory as it does not determine the merits. Ironsmith v. Country Place, Inc., 371 So. 2d 290 (La.2d Cir. 1979), writ denied, 372 So. 2d 1055 (La. 1979). However, an interlocutory judgment is appealable if the judgment may cause irreparable injury. LSA-C.C.P. art. 2083. Defendants contend that defenses personal to Pink Panther exist which they cannot raise, and hence, the threat of irreparable injury hangs over them if they are forced to go through what they regard as an unnecessary trial on the merits.

However, if an endorser of a note is sued by one not a holder in due course, the endorser may raise any defense the maker might have raised, including defenses seemingly "personal" to the maker. City Bank & Trust Company v. White, 434 So. 2d 1299 (La.App.3d Cir.1983). Hence, defendants-appellants may raise any defenses that Pink Panther might have raised had it been joined as a party defendant, and the exception of nonjoinder of an indispensable party is without merit.

Bush Construction seeks damages for a frivolous appeal. The awarding of damages for a frivolous appeal is not favored in law, and hence damages are denied.

The appeal is dismissed, all costs of this appeal to be borne by defendants.

APPEAL DISMISSED.