Opothlarholer v. Gardiner

delivered the opinion of the court.

The plaintiffs, nine in number, being Indians of the Creek nation, brought suit jointly against one Hotchkiss, and recovered the sum of ten thousand dollars. The present appellant having become bail for the defendant, the plaintiffs took a rule upon him, to show cause why he should not be condemned to pay the amount of his bond. He is appellant from a judgment against him for seven-ninths of the amount of said bond, two of the original plaintiffs having died, and the suit being discontinued as to them.

The bail, in answer to the rule, first sets up as an exception to the proceeding against him, the death of two of the original plaintiffs, and claims that the suit should be dismissed. We are of opinion the court did not err in overruling this exception. It is a general rule, undoubtedly, that all parties * ° 7 J 7 r in interest should join in a suit, or be made parties. But even hi ordinary cases, there may be exceptions growing out of the extl'eme difficulty, if not impossibility of doing so. In the present case it appears that all the joint creditors joined in the original action, and we are of opinion that the judgment severe<J their joint interest, and that each has a right to receive his virile share ; although, if driven to an execution, it might be necessary to pursue the judgment in the form of the writ. The bail engaged to pay the judgment of this court upon certain conditions, and that judgment is in sub-1 . stance, that each of the original plaintiffs receive of the *515defendant his share of the claim. It would be manifestly impossible to bring in the heirs of a Creek Indian, and the defendant has shown no necessily for so doing. 14 Louisiana Reports, 27; 2 Story’s Equity 142; 3 Vesey, 314; 1 Johnson’s C. Reports, 350; 5 Louisiana Reports, 287; 4 idem., 100.

*515He next denies the agency of Dubois, on whose affidavit the order of arrest was issued, and of the attorneys engaged in prosecuting the original suit. We concur with the district judge, that these questions are put to rest by the judgment, and that the authority of the agent and attorneys cannot be questioned in this manner, especially without affidavit, inasmuch as the presumption is in favor of the authority.

The defendant in the rule, next relies upon various alleged irregularities in the proceedings against the original defendant, to wit:

1. That the judgment was signed prematurely, without allowing the legal delay for asking a new trial.

2. That notice of judgment was not legally served.

3. That a proper demand of property was not made to satisfy the fi.fa.

4. That the ca. sa. was returned prematurely.

5. That there were other persons bound as bail, who should have been sued at the same time.

I. Even admitting that the judgment against Hotchkiss, was signed prematurely, it does not follow that the defendant was deprived of the right of moving for a new trial, as between the parties such premature signature is not assignable in error. 7 Martin, N. S., 233.

II. The notice of judgment was served on one of the attorneys of the defendant, and it appears by the proceedings that he was a resident of Texas, and that he had no domicil in the state. We are of opinion that this is sufficient, and that it is not necessary to appoint a curator ad hoc, for the purpose of receiving notice of judgment, when there is an attorney of record.

III. In execution of the writ of fieri facias, the sheriff appears to have done all in his power. He could not call on the defendant, who was absent, to point out property; and it *516is not, in our opinion, the duty of that officer to call on the defendant’s attorney, to show the property of his client. We think the return in this case justified the issuing of the capias. Code of Practice, articles 726 and 727.

IV. The ca. sa. was made returnable on or before the fourth Monday of December, the 23d of the month, and was returned on the 21st. The rule on the bail was taken on the 23d December, and returnable on the 6th of January. It was answered on the same day, and final judgment rendered thereon upon the 18th. During that period, the bail might have exonerated himself, by surrendering the defendant. We cannot notice any thing which occurred after the rendition of the judgfnent. The 22d of December being Sunday, the writ could not have been served ; and on Monday, the 23d, the plaintiffs had a right to require of the sheriff to return it. Thirteen days notice was given, exclusively of the day on which the rule was taken, and that on which it was returnable. The bail, in our opinion, has no right to complain, inasmuch as he had from the 11th October, when the ca. sa. issued, until the 18th of January, within which time he might have surrendered the defendant, who had forfeited the bond by leaving the state.

V. The record does not show any other bail bond than that signed by the present appellant.

It is further urged, that (he principal was surrendered on the same day that the judgment was signed, although it was rendered several days before. The record does not show at what time the judgment was signed. It bears date January 18th. We are of opinion that a surrender to the sheriff on the 23d, did not operate the release of the bail, according to articles 231 and 235, of the Code of Practice.

It is, therefore, ordered and decreed, (hat the judgment of the District Court be affirmed, with costs.