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ATCHISON et al. v. GULF REFINING CO. et al.

No. 12621.

United States Court of Appeals Fifth Circuit.

May 20, 1949.

Rehearing Denied June 22,1949.

Sam Monk Zelden, New Orleans, La., for appellants.

Marian Mayer, New Orleans, La., Frederick E. Greer, Melvin Evans, Shreveport, La., for appellee.

Before HUTCHESON, SIBLEY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This is an action in tort by appellants against appellees for the alleged wrongful acts of their employees. One of the appellees is sued as the surety of the sheriff, who'was not made a party defendant. We agree with the court below that the surety on a sheriff’s bond cannot be sued without joining the principal if the latter has not been sued, is solvent, and is accessible to suit; but the court not only dismissed the action as to the surety but as to the other alleged tort-feasor, who was jointly and severally liable, and we think this was error.

It is tru'e that the appellants had the choice of forum and the right to sue the appellees jointly, but this did not deprive the appellees of their right to make separate defenses. When the separate defense of the surety was upheld, it warranted the dismissal of the action as to the surety but not as to the other defendant. We have been cited to no statute or decision which shows that there is any special rule in Louisiana on this subject, and the general rule is that joint tort-feasors may be held jointly or severally liable.

The judgment appealed from is affirmed as to the American Employers’ Insurance Company, but reversed as to the Gulf Refining Company and remanded for further proceedings not inconsistent with this opin ion.

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