Helmer v. Callaway ( 1977 )

REDMANN, Judge,

concurring.

No cause of action is stated by a petition for contribution from co-sureties by a co-surety who alleges neither that he has paid the whole debt (or more than his virile share) nor that his payment obtained the discharge of the co-sureties; see C.C. 2104 and Scott v. Behrman, La.App. 4 Cir. 1973, 273 So.2d 661, 665.

PER CURIAM.

Plaintiff-appellee Henry W. Helmer correctly argues our original decree dismissing his suit with prejudice is unjust. We reversed the default judgment taken by plaintiff because it was not supported by adequate evidence; however, the' record indicates there may be merit to the claim.

For this reason, our original decree is recalled and it is now ordered that the judgment appealed from is reversed and this matter is remanded to permit the litigants to fully present any claims and defenses they may have.

ORIGINAL DECREE RECALLED; REVERSED AND REMANDED.