North Birmingham Fire Brick & Roofing Co. v. W. T. Carey & Bro.
Also decided on this docket: La. Ct. App. 1st Cir., March 7, 1962 140 So. 2d 683; La. Ct. App. 1st Cir., December 24, 1975 324 So. 2d 553; La. Ct. App. 1st Cir., March 13, 1973 274 So. 2d 837; La., January 15, 1875 27 La. 59
North Birmingham Fire Brick & Roofing Co. v. W. T. Carey & Bro., 8 Teiss. 392 (La. Ct. App. 1st Cir. 1911).
Opinion text
ST. PAUL, J. Plaintiff seeks to hold (among others) the surety on a contractor’s bond. The surety pleads that the petition shows no cause, of action, for this, that it contains no allegation that a sworn account was served upon the owner as required by Act 134 of 1906. The exception, is insisted upon and seems well, taken. *393 The act requires that an attested account he served in all cases, and this is for the protection of all parties interested. May 29, 1911. The exception must, therefore, he maintained; hut in as much as counsel claims that such account was in faet served, and the omission to make the allegation was mere oversight, the suit should not he dismissed except as in case of non-suit; for a litigant should not be made to suffer for defective pleadings. The other issues need, therefore, not he considered. But we think that plaintiff should hear the costs of appeal. (See South La. Land Co. vs. Waterhouse, 128 La. [ 54 So. Rep. 940 ], 942). It is, therefore, ordered, that the judgment appealed from be amended so as to dismiss plaintiff’s demand against the National Surety Co., “as in case of non-suit only” instead of absolutely, and as thus amended; said judgment is affirmed at the cost of appellant.