
    No. 8277
    COURT OF APPEAL PARISH OF ORLEANS.
    LIBERTY BANK & TRUST COMPANY versus JOS. E. JOHNSON.
    Dinkelspi-l; J.
   Dinkei ; J.

PI. inbifí .rued clef ¿nd.-nt for the sum of One Thousand Roll-. r,, te-": ti..-r . i ;h intsr-.'rt at the rate of eight per cent per ■..r.aum frcm "oTa,j t 3rd, 19.90 .,nd re--3or.---.ble attorney's fees; a}.-,1 Aging tint pi. intiff is the holder End owner, for value, before .... t\ ri by, of ... cert: in provisory note subscribe! by defendant end by hiM endorj.. 1, filing the note for the amount claimed with pe-tibian, ..-nd s.-id obllg-tion not being paid at maturity, demands iu'.gmcnt .-.gainst the defendant reserving plaintiff1 s right to «. prco-.-;d ..g.inst rhe Inbornationi1 Puncture Cure, Inc. and E. G. Gould, the endorsers on said note.

To this petition defendant admits his signature to the oblig-.tion in i.uestion but alleges that said obligation was issued without consideration and without any value reoeived from pit.intiff, and. averring substantially thai. the transaction be-tv/o .n the InGorn-.-.tiom 1 Puncture Cure, Inc., E, G, Gould and ■pit-intiff, vívs o new and distinct consryct of loan, separate anteceded from -,.ny other contract which mo.y huve/fcftft&xsEiEfeS; the transaction and mi.de without reference to any preceding contract but >vas and is a nsw and distinct and separata contract by v/hich the Puncture Cure, Inc. end E, C. Gould borrowed money from pli intiff on said noto and endorsed same, which said endorsement constituted a new contri ct.

Alleging further th-'o plaintiff did not purohase said note outright but merely discounted seme and the discount wt-s made upon the faith of the endorsement and not upon the note and being v. distinct cent rao t between plaintiff and the tndorjors, defendant h;.d right to discuss this matter before plaintiff could proceed against him, which plaintiff has not done.

Alleging else that pi..-Intiff had knowledge that the other parties to the note, Gould and the International Puncture Cure, Inc. were amply able to pay said note and primarily responsible thereon; charges plaintiff, by the action mentioned are protecting or attempting to protect thsse parties end to the detriment of defendant and fur-tlnr Alleging th-'t the obligation w-.a given by her=nhunt to the p-rtiss na-mocl, Gould ¡.1.11G others, for the bula-noe of-a subscription to ate ok of sdJ. Punoture Curs Inc. end said obligation V/-.S ¡¡k.ds .nd isousd in error of the true fusts regarding scid Coerpi-.ny and because of Misinterpretation sit.de by the pi rbios to wit: the Punoture Cure Ino. end Gould, all of which facts are set out in suit ’’o. 134570 of the docket of the Honor;/,Hie tho Civil District Court, Division "D".

Tho prc.yer concludes preying for judgment that praying plaintiff1 s suit bs -di ami-sod .'.nd furthsr/Kkxjaxxiig th't the Intern-tional Punoture Cure Ino. through Edg.-r G. Gould, its Pre.’icbnt t.nd Edgar G. Could individually, bo called in warranty herein . n-1 oitsi to .-p.-,e r • nd astir It.intiff1 s petition and this 0.-.11 in -.v>'rr nty .-.nd th.-.t c£ter tri- 1 there be judgment in -def nAr-nt'c f-.vor . nd ..gv.inot the other parties mention;- her; before, r rving the further right z'. sue fer h-.p-.i,, ,-tO. ;tC.

To this i.no.rer nd c 11 in v/ or. nty an order W...3 obS.ined pen..i tting o ho tc bt fil...l ,.nl ch- t the .v-rti-s in •.,ue.,tion bo c.-Hod in m r.-i;ty. Doth roi=s oollod in ive-r-i- n ;y fil-,d plots c-f c-v..-s of ..coion ;.na the further plea 0* - 2..-J _

Cn th: -1 th cf ...roh, 1CH1, pl-intiff asked th.-t this o.-.;»-; bo fix-:-! by prsf.renoe on ths auum ry docket of the Civil District Court, rtiich w. ; dono c o-.inst the objections of th : defend; nt.

On the tri. 1 cf this cose ths presiding Judge :.vs the following re-sons for judgment cn exception tc cell in vi.rr. r.ty f.r.d no cause cf action.

"Under Article 373 C. P., the endorser hit the right to call ir. the inker in warranty but the m-. k;r h-.s no right tc o.11 the endorser in warranty. The a ker is primarily 11:ble end Lust defend his own suit without c.lling ;.ny-cnc in w;.rr,..nty.."

Tutonia Bank vs. Brunett, 3 Court of Appeal, p.86. Wesson vs. Garrison, 8 Ann. 136 Bank vs. Stevens, 11 Ann. 190.

"A 'controversy Between the maker and endorser oan be settled in a suit amongst themselves and the records of this Court show that there is pending in DivisionME", suoh a suit.

The exception to the call in warranty is maintained and the call is dismissed."

Fiom this judgment defendant has taken an appeal to this Court.

During the trial of this oase, the same character of argument for i continuance of the case made there was made here end the Court goes on in its opinion overruling, to use the following language;

"The argument of counsel is very ingenous; the oases cited by him are not applicable to this ca.se, whioh is a civil suit on a promisory note against the maker. The maker calls the endorser in warranty; the Sourt rendered judgment dismissing the call in warranty; the Court deolines to stop the trial of the case and counsel insists. The oase is ordered to be proceeded with."

We oonour in the views thus expressed, and the authorities quoted by the able Judge of the Court aquo are absolutely correct and as far as they go, applicable and we adopt same as part of the reason for the judgment to be rendered in this case.

In the case of Anchor Sawmill Co. vs. Acme Lumber Co., to be found in the 7th Court of Appeal at gsgsx&SUc page 468, the Syllabus reads as follows:

"The right to issue a call in personal warranty oan e,rise only when there is but one debt, due to plaintiff by defendant, but which a third person is obligated to pay for account of defendant. The fact that a third person is indebted to defendant in a. like sum and growing out of the seme trrnsaotion does not entitle defendant to call him in warranty; the obligation of the vre.rrantor must be to pay the very debt for whioh defendant is sued,"

Cn p- 471 of She s.jne volume in the seme mutter being plic Sion for .vrisi of Certiorari and Prohibition, this Court -..mcnget r bhjr thirus go so on "As'between defendant and the alleged warrantors, the question of the right to call them in warranty w .s ^resented by the exception. But as between plaintiff and defendant that question arose only when plaintiff sought to proceed without the presence of the alleged warrantors. And plaintiff was entitled to raise the issue regardless of whether Corey & Bro. hod or had not themselves raised the issue. It involved a substantial right on their part, the right to proceed regardless of the presence of Carey C. 3ro.

The books are full of instances in which the right of a defend: nt to issue a, call in warranty has arisen exclusively between a plaintiff and a defendant, and it has always arisen in just that way, viz: over the right vel non of the defendant to demand a continuance for the purpose of having the alleged Wi-.rr.-.ntors present as a party during the proceedings.

Whatever controversy exists between the defendant, the ¿:.ksr of this not? and the endorsers, can be tried in another ^rooeeding o-nd thi.t is now pending in the Civil District also Court, but tk. t/c:.unot interfere nor delay this trial and did not in the Court below and equally so is it the case here.

The Judgment of the Lower Court was in favor of plaintiff, together with allowing judgment in favor of the attorney of plaintiff for ten per cent as attorney's fees in this case.

And amendment has-been filed asking for an increase of this amount, which we think should be granted.

It is therefore ordered, adjudged and decreed, that the judgment of the Court aquo be and the seme is hereby affirmed but amending said judgment, fiving Lazarus, Uiohel & Lazarus end Herbert S. Weil, Attorneys in this os.se, fifteen per cent instead of ten per oent, as attorney's fees, and as thus amended judgment affirmed.

-Judgment amended and Affirmed..  