
    Union Bank v. Dunn & Al.
    An exception which goes to the absolute want of any right in the plaintiff to stand in judgment in any manner, may be pleaded after issue joined on the merits, or at any stage of the case. — 4 N. S. 434; 5 B. 253.
    So a branch of the Union Bank has no legal or corporate existence to enable it to sue or stand in judgment; and although the owner of a negotiable instrument, yet having no capacity to sue, no action can be maintained by it on said instrument. — 8 N. S 509; 13 L. 366.
    Appeal from the court of the third district, for the parish of East Feliciana, the judge thereof presiding.
    This is an action instituted on a promissory note against the maker and indorsers, which had been discounted at the branch of the Union Bank at Clinton. Tlie petition sets out the name and style of the plaintiffs in the following manner: “ The petition of the president and board of directors of the branch of the Union Bank of Louisiana, at Clinton, &c., whose principal establishment is in the city of New Orleans.” On this petition judgment is prayed against the defendants for the amount of the note sued on.
    The defendants admitted their signature, but pleaded a general denial to every allegation in the petition. After the cause was at issue, the defendants filed a peremptory exception, expressly declaring, that the Union Bank at Clinton (plaintiffs), were wholly incapable and without capacity to sue or stand in judgment, or carry on any suit for or in behalf of the principal bank in New Orleans, and prayed that this suit be dismissed.
    This exception was sustained by the district judge on the ground that the charter did not authorize the branch bank to sue. From judgment rendered therein the plaintiffs appealed.
    
      Muse & Merrick, for the plaintiffs,
    insisted on the reversal of the judgment:
    1. The judge a quo, erred in permitting a dilatory plea to be filed aeter [238] a regular judgment by default had been rendered. See said judgment, page 7 of the record; also the exception, at page 9 of the record ; the exception having been filed nine days subsequent to the rendition of the judgment by default. See “ an act to amend the Code of Practice, approved the 20th March, 1839,” section 28d; also Code of Practice, art. 344.
    2. The judge a quo, erred in permitting such an exception (or even a peremptory exception founded on form,) to be filed after a regular answer to the merits. See the answer at page 8 of the record, and bearing date the 12th of November, four days prior to the filing of the exception. On this point, no authorities, it is humbly conceived, need be cited.
    3. The suit (being instituted on a note payable to order and indorsed in blank) should have been sustained in the form in which it was brought, because, a-final judgment rendered therein, either for or against the plaintiffs, would have formed res judicata in favor of defendants. See Civil Code, art. 2141, paragraph 1st; also art. 2144. See also the following decisions of this court, viz., Banks v. Boston, 3 Mart. N. S. 293 ; Lacoste v. Be Armas, 2 La. Bep. 264; Boswell v. Zender, 13 Id. 366.
    
      Lyons, for the defendants, contended that peremptory exceptions founded in law may be pleaded even after issue joined, and when the pleadings show a total want of right and capacity in the plaintiffs to stand in judgment, advantage may be taken of it at any stage of the proceedings. Code of Practice, 345, 346 ; 4 Martin, N. S. 434.
    2. The Branch of the Union Bank of Louisiana has no power by charter to sue or be sued. A judgment in favor of the president and directors of a branch, would not form res judicata. Even payment to them would not be good. See Charter in Session Acts of 1831, p. 42, sections 1, 9, 33, 34, 35, 86.
   Morphv, J.

delivered the opinion of the court.

[236] The plaintiffs are appellants from a judgment sustaining an exception to their right to maintain this action. The petition is in the name of “ the president and board of directors of the Branch of the Union Bank of Louisiana at Clinton, whose principal establishment is in the city of New Orleans.” "We think the judge did not err. There is no such corporation known to our laws as that described in the petition; the branches or offices of, discount and deposit created by the act incorporating the Union Bank, are without power or authority to stand in judgment for the mother bank; the latter for-all sums due to her directly or through her branches, must sue in her corporate name, which is, “ the Union Bank of Louisiana.” La. Code, art. 423; Acts of 1832, p. 42, sections 1, 9, 33, 34, 35.

It is said that defendants having joined issue on the merits, this exception, which is one founded on form, was too late. "We believe that it embraces something more than mere form. It goes to the absolute want of any right in plaintiffs to stand in judgment in any form or shape whatever, and can therefore be urged at any stage of the cause. Code of Practice, 345, 346; 4 Mart. F. S* 437. But it is insisted that this suit being on a note payable to order and indorsed in blank should have been sustained in the form in which it was brought, because a final judgment rendered therein, either for or against the plaintiffs would have formed res judicata; and we are referred to arts. 2141, 2144 of the Louisiana Code; and also several cases reported in 3 Mart. F. S. 295; 2 La. Bep. 264, and 13 Id. 366. These authorities establish that a note payable to bearer or made to order and indorsed in blank, can be safely paid to any one in possession of it; and that suit can be brought on the same by any holder of such paper without his title to it being questioned, except in certain cases, but from this it does not follow that the right of a plaintiff to stand in judgment cannot be excepted to because the suit is brought on a negotiable instrument. The right to sue as owner which results from [237] the negotiability of such a note is a thing very different from the capacity to sue. The plaintiffs have no legal existence as a corporation, and therefore cannot sue and be sued in a court of justice.

It is therefore ordered that the judgment of the district court be affirmed with costs.  