(dissenting).
The facts of this ease are as stated in the opinion of the majority of the court. The plaintiff bank cashed a check for the City Café and now finds it necessary to proceed against the maker and indorsers to recover the amount. In a former appeal, acting on the same petition, the court held affirming the judgment of the lower court that the petition, as against City Café, disclosed no cause of action. The case was returned to the lower court, whereupon the plaintiff bank filed an amended and supplemental petition in which it avers:
“Now your petitioner shows that by answer filed herein on the 23rd day of May 1931, the defendants G. L. Whitaker & Son * * * have denied any liability to your petitioner on the check herein sued upon, on the grounds as set out in Article 9 of their answer, that the endorsement thereon purporting to be the endorsement of R. E. Martin is a forgery.
“That City Café a commercial partnership composed of Martin Miranda and Edwin E. Kinberger, having endorsed said check and having received from petitioner the sum of $193.52 thereon as set out in the original petition herein, the allegations of which are here reiterated and made part hereof, are the warrantors of petitioner in so far as the genuineness of the signatures of all the prior endorsers appearing thereon are concerned, particularly the endorsement thereon of R. E. Martin one of the payees thereof, are interested in the outcome of this suit, and are necessary parties thereto.”
The prayer is: “In the event this Honorable Court should hold and find that the endorsement of R. E. Martin appearing on said cheek is a forgery and simulation, and for that reason deny to petitioner a judgment against the said Whitaker & Son, that your petitioner have and recover judgment against City Cafe and E. F. Kinberger and Martin Miranda in solido in the full sum of $193.52.”
The original demand was for judgment against City Café, that is Kinberger and Miranda, Whitaker & Son, and R. E. Martin in solido.
The demand in the amended and supplemental petition is for judgment against City Café only in the event the court holds that the indorsement of R. E. Martin is a forgery.
I will add here that Whitaker & Son filed exceptions to the amended and supplemental petition which were overruled. The ruling-in that respect was not appealed from, consequently any discussion of the exceptions filed by them is unnecessary. City Café, that is E. F. Kinberger and Martin Miranda, excepted to the amended and supplemental petition as an attempt to change the substance and nature of the demand after issue joined. The lower court sustained that exception in a written opinion, and it is that ruling which the majority opinion affirms holding that the amended and supplemental petition is in effect but an effort to amend the original petition after it had been held that it set forth as against City Café no cause of action and that there was nothing to amend. It is on this subject that I differ with the majority of the court. Supposing the majority opinion to prevail, City Café will not be a party to the present suit. The answers of Whitaker & Son and of R. E. Martin show that their defense is that the indorsement of R. E. Martin is a forgery. They may convince the court that it is true. In that event there will be judgment rejecting plaintiff’s demand against Whitaker & Son and R. E. Martin.
If that takes place, then plaintiff will have the right to bring an action anew against City Café, that is E. F. Kinberger and Martin Miranda, who may be expected to plead qnd show, if they can, that the indorsement of R. E. Martin is genuine or authorized. Should this defense be made good, which is possible, then there will be judgment rejecting plaintiff’s demand against them. Such a result would be a defeat of justice. It is evident from the pleadings and situation that the defense of, Whitaker & Son and of R. E. Martin is in conflict with that which must be adopted, if any is attempted, by City Café.
When the question is one of forgery vel non *98and it is evident that the interest of several parties are in conflict on the subject, then all parties interested in the result of the determination should be brought before the court, to the end that the controversy may be settled contradictorily with them all in the same suit. The rule is necessary not only in the interest of justice but to prevent a multiplicity of suits. Lauterbach v. Seikmann, 125 La. 839, 51 So. 1008; New York Life Ins. Oo. v. Dorsett, 152 La. 67, 92 So. 737; Cassard v. Woolworth, 165 La. 571, 115 So. 755. There is another reason. City Café is, under the law, but a surety for the plaintiff as to prior indorsements. The law provides that “the creditor may include in the same suit, both the debtor and the surety.” Civ. Code, art. 3051. The course pursued 'by the bank on the return of the case is supported by Peretz v. Peretz, 1 Mart. (O. S.) 219, and Lafonta v. Poultz, 6 Mart. (N. S.) 391, cited in plaintiff’s brief. Amendments are favored when they tend to accomplish justice and prevent a situation' such as will exist if the amendment is rejected.
For these reasons I take the position that the amendment should be allowed, the judgment appealed from set aside, the exception overruled, and the case remanded, to the end that it may be put at issue by City Café as warrantors of the indorsement in question, and the question of forgery determined contradictorily with all interested therein.