This is an action for damages alleged to have been caused by the wrongful institution and prosecution of the suit of the five Erskine heirs against the present plaintiff, in which a writ of injunction was obtained by the plaintiffs and was afterwards dissolved by the decree of this court. See Erskine et al. v. Gardiner, 162 La. 83, 110 So. 97. The present suit was brought against the five Erskines and two other parties, both of whom signed as sureties the bond given by the Erskines for obtaining the temporary restraining order, and one of whom signed also the injunction bond, in the suit of Erskine et al. v. Gardiner. It is alleged in the petition in the present suit that the two defendants, other than the Erskines, were the instigators and the real prosecutors of the injunction suit which is alleged to have caused the damages *Page 216 claimed in this suit. The prayer of the petition is for a judgment against the seven defendants in solido.
This suit was brought in the parish in which the Erskines have their domicile. The two other defendants, being domiciled in another parish, filed a plea to the jurisdiction of the court, ratione personæ. The plea was sustained and the suit dismissed as to these two defendants; and the plaintiff has appealed from the judgment of dismissal.
The only question is whether a suit for damages against two or more persons who reside in different parishes, and who are sued as joint tort feasors, and who, therefore, if they are liable at all for damages, are liable in solido, may be brought at the domicile of any one of them. If either of the two defendants, who excepted to the jurisdiction of the court, in this case, is liable at all for damages, the other defendants, the Erskines, who reside within the jurisdiction of the district court, are liable in solido with him. The liability of one who aids or encourages another to do a wrongful act, if there is any liability for damages resulting from the wrongful act, is a liability in solido with the one who committed the act. Rev. Civ. Code, art. 2324.
The sixth paragraph of article 165 of the Code of Practice provides: "When the defendants are joint or solidary obligors, they may be cited at the domicile of any one of them."
In Joseph Rathborne Lumber Co. v. Cooper et al., 164 La. 502,114 So. 112, which is the latest ruling on this subject, it was held that the sixth paragraph of article 165 of the Code of Practice was applicable to an action for damages against joint tort feasors, as well as to a suit on a contractual obligation, and that an action for damages, ex delicto, against two *Page 217 or more cotrespassers residing in different parishes, might be brought properly at the domicile of any one of them, even though it was not in the parish in which the trespass was committed. The court had held previously, in King v. Wm. J. Burns International Detective Agency, 151 La. 211, 91 So. 681, that the sixth paragraph of article 165 of the Code of Practice was applicable only to suits on conventional obligations, and not to suits against joint tort feasors for damages arising ex delicto; but that decision was overruled by the decision in the Rathborne Lumber Company's Case, as shown by the reason for which one of the justices dissented (another concurring in the decree only) in the latter case. It is true that, in Lagrone v. Brown et al.,161 La. 784, page 787, 109 So. 490, it was said that it might be conceded that, if the action could be regarded as one for damages arising ex delicto, it would be governed by the ruling in King v. Burns Detective Agency; but, as the majority of the members of the court did not then regard the Lagrone Case as an action for damages arising ex delicto, the reference to the King Case was not decisive of anything on the subject.
Article 2324 of the Civil Code, which was article 2304 of the Code of 1825, was originally translated erroneously from the french text, so that it made joint tort-feasors liable in damages only jointly, and not in solido. The error was corrected by Act 20 of 1844, p. 14, declaring: "That the Article two thousand three hundred and four of the Civil Code be and it is hereby so amended as to make the English of said Article correspond with the French, and so as to make co-trespassers liable in solido." The correction was carried out in the revision of the Code of 1870. In the case of Loussade v. Hartman et al., 16 La. 117, decided in 1840, the question was whether the provision in the Code, which *Page 218 was then article 2080 and is now article 2085, requiring that, in suits against joint obligors, all parties to the obligation should be made parties defendant, was applicable to a suit against joint tort-feasors; and the ruling was that, as the Code made no distinction in that respect between joint obligations arising ex contractu and joint obligations arising ex delicto, the court could make no such distinction.
We shall abide by the ruling made in Joseph Rathborne Lumber Co. v. Cooper, which is the most recent decision on the subject. If we are wrong in construing the sixth paragraph of article 165 of the Code of Practice literally, in connection with article2324 of the Civil Code, the Legislature will soon have an opportunity to amend the law on the subject.
The judgment appealed from is reversed, the pleas to the jurisdiction of the district court, ratione personæ, are overruled, and the case is ordered remanded to the district court for further proceedings. The costs of this appeal are to be borne by the appellees, Perez and Shilstone. The question of liability for other court costs depends upon the final judgment to be rendered in the case.