Opinion
No. 3265.
January 6, 1969.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 101-421, DIVISION "B", JOHN C. BOUTALL, J.
Milling, Saal, Saunders, Benson Woodward, F. Frank Fontenot, New Orleans, for plaintiff-appellee.
Greenberg Cohen, Nathan Greenberg, Gretna, for Ipik Door Company, Inc., defendant-appellant.
Before YARRUT, CHASEZ and REDMANN, JJ.
Plaintiff sues Ipik Door Company, Inc. and Ipik Plywood Company, Inc., for labor and materials allegedly furnished them. On January 10, 1967, Plaintiff confirmed a default against both Defendants, and judgment was rendered against Ipik Door Company, Inc. and Ipik Plywood Company, Inc. for $10,029.16, plus interest and costs. Only Ipik Door Company, Inc. has appealed.
The basis of the appeal is that, attached to Plaintiff's petition were invoices sent to both Ipik Door Company, Inc. and Ipik Plywood Company, Inc. Six of the invoices, totalling $5,162.43, were made to Ipik Door Company, Inc.; and two invoices, totalling $4,866.73, were made to Ipik Plywood Company, Inc. The judgment was rendered against both Defendants for the total obligation.
Ipik Door Company, Inc. correctly contends that, according to the allegations of the petition, this was a joint obligation; hence, the judgment must be rendered separately against each Defendant for its proportion of the debt. LSA-C.C. Art. 2086. Because the invoices form part of the pleadings, Ipik Door Company, Inc. contends that the most the judgment against it should be for is $5,162.43, the amount itemized in the invoices.
Ipik Door Company, Inc. correctly contends that, on confirmation of a default, a Plaintiff is bound by the allegations of its petition. Craver v. Gillespie, 148 La. 182, 86 So. 730; Harris v. Womack, La. App., 83 So.2d 541; Castellon v. Nations, La. App., 186 So.2d 708.
Plaintiff answered the appeal praying that, if the judgment is not affirmed, that the case be remanded to enable it to amend its pleadings. We think this request is well taken. Although the transcript is not in the record, plaintiff offered testimony at the trial of the confirmation of the default, and introduced a bill charging Ipik Door Company, Inc. with the entire $10,029.16 amount. If Ipik Door Company, Inc. had appeared, the Trial Judge could have allowed an amendment of the pleadings to enable Plaintiff to prove Ipik Door Company, Inc. owed the entire amount. LSA-C.C.P. Art. 1154.
Accordingly, the judgment appealed from is set aside, and the case is remanded to allow Plaintiff to amend its petition, and to allow Ipik Door Company, Inc. to file an answer; with the right of both parties to introduce any admissible evidence; costs of this appeal to await the final outcome of the case.
Remanded.