The defendants are appellants from a judgment against Caldwell and his co-defendants, Brigham and Downs, as his sureties on a promissory note.
The defendant, Caldwell, urges in this court, that there is no evidence of a legal service of petition and citation on him, the sheriff’s 'return stating that copies were left at his domicil, instead of showing they were left at his usual domicil; and that it in no wise appears from the-sheriff’s return that the copy served on him was sealed and certified by the clerk to be a true copy of the one on which he makes his return, or that the original citation had the seal of.the court; that as he was not duly cited, judgment by default was irregularly taken against him; and if it had been regularly ■ taken it was illegally made final, as there was no proof of his signature.
It has been contended that there was no necessity of proving the defendant’s signature because it was not specially denied. The Code of Practice, art. 324, provides that ‘ the defendant shall be bound in his answer to acknowledge expressly, or to deny his signature.’ This obligation does not arise until the defendant answers. The court therefore, in our opinion, improperly permitted the judgment to be made final without proof of .the defendant, Caldwell’s, signature. The Code of Practice expressly provides that ‘ no definitive judgment shall be given until the plaintiff proves his demand. This proof is required in all cases;’ art. 312. Judgment by default Although improperly made final, was correctly taken, for the defendant had been properly cited. Nothing shows that he had more than one domicil. It was therefore unnecessary to state that service had been made at his usual domicil. In the case of Bryan’s Adm’r v. Sprewell, 16 La. 313, we held, that ‘ although the seal of the court does not appear to the citation as it is copied into the record, non con-stat that it was not affixed to the original, and we are bound to presume that the clerk did his duty.’ That case cannot be distinguished from the present one.
This case must therefore be remanded to afford the plaintiff the opportunity to make the necessary proof required to make the judgment final.
The counsel for the sureties contends that no judgment can he had against them, until one is rendered against the principal; for *17they would in that case be deprived of the plea of discussion; and that it follows as a corollary that if judgment is reversed as to the principal, it must also he reversed as to the sureties.
The benefit of discussion must be demanded by the surety, who must point out the property to be discussed, and furnish a sufficient sum of money to carry it into effect. This has hot been done in the present case. Civ. Code, arts. 3015, 3016.
No law requires a creditor to obtain judgment against the principal and sureties simultaneously ; nor against the principal before he proceeds against the sureties. ‘ The surety cannot require the creditor to suq the principal debtor before resorting to him for payment. His remedy is to pay the debt and exercise his creditor’s rights against the debtor, to which he is subrogated by the payment,mr to proceed under article 3026 of the Chf. Code;’ Boutté, f. m. c., v. Martin et al., 16 La. 133.
The Civil Code also provides ‘ that the creditor may include in the same suit both the debtor and the surety. If he obtains judgment against both, the surety who is entitled to the benefit of discussion, may insist that the judgment shall be first executed against the principal debtor.’ Idem, art. 3020.
The creditor has the faculty, but he is under no obligation, to include the principal and surety in the same suit. If he does, his i'ight to judgment against the surety does not depend on his right to obtain judgment against the principal: for the Code says if he obtain judgment against both; which implies that he may have .it against either, the surety may insist upon its-being first executed against the principal debtor.
It is therefore ordered that the judgment of the district court so far as it relates to the defendants, Brigham and Downs, be affirmed with costs, except that part which directs execution to be first issued against the principal debtor, which part is hereby reversed. And that so far as it concerns the defendant, Caldwell, that it be reversed; and that the case be remanded for further proceedings on the judgment taken by default; and that the plaintiff and appellee pay the costs of the appeal.
Any objection to the amendment of‘ a judgment, on the ground that the answer oí' appellee requesting it, was not filed three days befoi*e that fixed for the trial, as required by art. 890 of the Code of Practice, will be considered to havje been waived, where the case was fixed by the appellant before the expiration of the three days allowed for filing the answer. Downs and Copley, for the appellants, prayed for a re-hearing.