(dissenting). An exception of “no cause of action,” directed against the petition originally filed herein, having been argued, plaintiff’s counsel, before the court acted thereon, filed a supplemental petition, with a view of correcting the omissions in the original, to which attention had thus been drawn. The citation upon the supplemental petition was addressed to, and served on, “J. S. Atkinson, attorney of record.” The trial judge held that the service was bad, for the reason that the counsel upon whom it was made had appeared specially, alleging that they did so only for the purpose of filing certain exceptions. I am of opinion that, under Act 179 of 1918, § 16, the service was good, as having been made on the attorney of record of the defendants; but I am also of the opinion that, on its face, it is insufficient to bring the defendants into court, since it is not addressed to them, and the law and the jurisprudence concur to the effect that the citation must be addressed to the defendant, and not the agent. C. P. 178, 179; Jacobs v. Frere, 28 La. Ann. 625; State ex rel. Y. & M. V. R. Co. v. Montegudo, J. P., 48 La. Ann. 1417, 20 South. 911; McFaddin v. Sheriff, 49 La. Ann. 1319, 22 South. 358; State ex rel. Tel. Ex. v. Voorhies, Judge, 50 La. Ann. 671, 23 South. 871; State ex rel. Walkins v. Land & T. Co., 105 La. 380, 29 South. 910; Bank of Monroe v. Bank, 124 La. 805, 50 South. 718, 134 Am. St. Rep. 518; White Hall & Co. v. Police Jury, 127 La. 1026, 54 South. 337. In Waddill v. Payne & Harrison, 23 La. Ann. 776 et seq., it is shown that, though an agent may be authorized to receive citation, it does not follow that a citation which is not addressed to his principal, but is addressed to the agent, will bring the principal into court.
Disregarding, then, the supplemental petition, and considering the original petition alone, I find that plaintiff there alleges that defendants (Smith and Barnes) are, in solido, indebted to it in various large amounts, “represented by” certain described promissory notes signed by the Tex-La-Homa Oil Corporation, which notes, from the description, I take to be negotiable; and it further alleges that they bear upon their backs the indorsement or guaranty of the defendants. It is not alleged, however, that plaintiff is the owner or the holder of the notes, nor are the notes annexed to, or made part of, the petition.
In support of the contention that the petition discloses a cause of action, plaintiff cites Davis v. Arkansas R. Co., 117 La. 322, 41 South. 587; Goldsmith v. Virgin, 122 La. 831, 48 South. 279; and Butler v. Stewart, 18 La. Ann. 554. In the two cases first mentioned it was held, in effect, that ah exception of no cause of action should not be sustained if a judgment of some kind could legally be rendered upon the allegations of the petition, supported by evidence; but that doctrine does not apply to this case, since, though plaintiff alleges that defendants are indebted to it, it couples with that allegation the further averment that the indebtedness is represented by negotiable promissory notes, drawn by a third person, and of which plaintiff is not alleged to be the owner or holder, and thus states a case in which the alleged debt is presumably due to the lawful holder of the notes, so that, though plaintiff should prove the execution and existence of the notes, as alleged, and they may represent an indebtedness on the part of the maker to the holder, that evidence would not authorize a judgment for any amount against the one who appears neither as holder nor owner.
The ruling in Butler v. Stewart, 18 La. Ann. 555 (the third case cited), reads:
“The statement that the defendant is indebted to the plaintiff on the note [described as ‘payable to W. M. D. Cauthorn, or bearer,’ and hence negotiable], virtually and substantially carries with it the idea that plaintiff is the holder and owner of the note; for, if the plaintiff *247did not hold the note, the defendant would not and could not be indebted to him on that note.”
But that is stating the case the wrong way around, and involves a petitio principii, or begging of the real question upon which the decision depended. In other words, the statement itself concedes that the defendant, as maker of the note, could not be indebted thereon to any one hut the holder, and yet, though the plaintiff does not allege that he is the holder, and hence should not he allowed to prove it, the inference is drawn that he must be the holder, because he alleges that the debt represented by the note is due to him. It is not enough, however, for a plaintiff to allege that a defendant is indebted to him; he must, in order to disclose a cause of action, allege how and why the defendant became indebted to him, and if from his allegation upon that subject it appears that, though there may he a debt, it is due to some one whom the petition does not identify, the allegation of the plaintiff that it is due to him is not to be taken as true, since it can be due to him only in the event that he is shown to he that unidentified person, and the presumption is that if he were that person he would so allege. And a fortiori is that true where, as in this case, notes are sued on which are not annexed to or made part of the petition, and are not even alleged to he in the possession of the plaintiff.
I therefore dissent, and am of the opinion that the judgment appealed from should be affirmed.