35 So. 296 | La. | 1903
Lead Opinion
Plaintiffs seek in this action to make an amount subject to their claim for which a judgment had been pronounced in ease of Robert E. Rivers v. Oak Lawn Sugar Company.
In due time, before the suit brought by A. Lehmann & Co. against Robert E. Rivers in the case here was filed, a writ of attachment was issued. This was on the 13th day of February, 1900. It was posted on the same day.
Robert E. Rivers was an absentee. A curator ad hoc was appointed to represent him, and on the 6th day of February, 1900, he was served with citation and copies.
In June, 1900, Rivers was, it is alleged by defendant, adjudged a bankrupt in the United States District Court for the Southern District of New York.
The notice of seizure sets forth that by vir
This notice of seizure was signed by the sheriff by whom the service was made. Notice was also served upon his attorneys on February 14, 1900.
The return of one of the deputies shows that the notice was served as before mentioned. The notice was indorsed on the return. The sheriff’s return on the writ of attachment states that the notices of seizure are annexed, that the property has been seized, that notices have been posted as required. He chose to add that, “Nothing came into my hands or under my control.”
Robert E. Rivers, through his counsel, appeared in the court, and filed an answer setting up a general denial.
On the 6th day of June, 1900, the district court pronounced judgment in favor of plaintiffs for the sum of $3,299.38, with legal interest from February 13, 1900, subject to a credit of $202.50, maintaining the attachment, and recognizing plaintiff’s lien and privilege on the property attached.
This judgment was signed on the 12th of June.
A garnishment process subsequently issued, and interrogatories were propounded to the Oak Lawn Sugar Company, Limited.
In July, 1901, plaintiffs, through counsel, sued out a rule upon the parties defendant to show cause why the amount before mentioned should not be paid by the Oak Lawn Sugar Company, Limited. The rule was made absolute. From the judgment making the rule absolute, defendant prosecutes this appeal.
We should have mentioned before in our statement of the facts that defendant urges that plaintiffs acquired no lien or privilege four months before the judgment adjudicating Rivers a bankrupt in New York, and that this contention is in part based upon the fact that the sheriff made the following return, which is indorsed upon the writ of attachment on 13th February:
“And on the same day seized the within-described property, as will more fully appear by reference to notice of seizure and return thereon, annexed to writ, and made part thereof. From such seizure nothing came-into my hands or under my control.”
The act of Congress of July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], invoked by defendant, provides that attachment or other means obtained through legal proceedings against a person who is interested, at any time within four months prior to the filing of a petition in bankruptcy against him shall be null and void in case he is adjudged a bankrupt, and the property affected shall be deemed wholly discharged and released from the attachment, and lien-shall pass to the trustees as part of the estate of the bankrupt, unless the court shall, on due notice, order that the right shall be-preserved for the estate.
The attachment was issued and service-made prior to the four months, but defendant’s contention is that it was not valid;, that, the adjudication in bankruptcy being, entered as he asserts before the writ of fieri facias reached the sheriff, no lien whatever arose.
From this it may be fairly implied from defendant’s point of view that a seizure-can be made only by service of interrogatories on all parties concerned.
This has not always been the view taken by this court. It has been decided that there are incorporeal things which may be attached by giving notice to the keeper of the right. Mr. Cross, in his work on Pleadings, p. 330, says that “the confusion of' fundamental principles is carried to absurd results by the ruling that incorporeal rights in suit may be seized by garnishing the clerk.” Ealer v. McAllister, 14 La. Ann. 824; Estate of Mille v. Hebert, 19 La. Ann. 58.
“The garnishee process is mere idle formality, unless it can terminate in a judgment against the garnishee, and without some method of making the garnishee liable the seizure would be futile and valueless.”
The clerk is the custodian to whom it' would be useless to address garnishment process, and to propose interrogatories.
In Nugent v. McCaffrey, 33 La. Ann. 273,
The court, in answer to this objection, said:
“(2) We find no difficulty as to the manner in which the seizure was made. A tangible taking into possession by the sheriff of the right, title, and interest of Miss Nugent in the suit was a physical impossibility, because it was incorporeal. Notice to the clerk of the court in which the suit was pending, to the defendant in the suit, and to the plaintiff therein was proper, and constituted a valid and sufficient seizure.”
Here it is true that the notice was served on the debtor o'f the right, which seems to be the safe and proper practice.
In Harris v. Bank of Mobile, 5 La. Ann. 538, the court held that an instrument evidencing the debt or right not negotiable may be seized by notice to the cashier of a bank who had it in his possession and control.
To defendant’s complaint that plaintiffs must have understood that nothing was seized or attached, as made plain by their conduct in filing their supplemental petition of .June 19, 1901, wherein they made the Oak Lawn Sugar Company garnishee, and propounded interrogatories, we can only say in answer that, if plaintiffs had acquired a right as evidence by the judgment of the court, recognizing the attachment and lien, it was not made to terminate by the garnishment process.
With reference to the statement of the sheriff in his return on the writ of attachment, we may as well say here that the ex industria declaration of the sheriff that nothing came into his hands as sheriff cannot prejudice plaintiffs’ rights.
He had legal possession and control through the clerk, who was the custodian, and his •contradictory statement cannot have the effect of defeating the purpose of the notice which had been given.
While we think that in seizure of a right in suit notice should be served upon the debtor of the right, as well as upon the custodian, we do not think that we should hold that the lien recognized, as before mentioned, is lost because there ,‘,'as delay in notifying the debtor, when there was none in notifying the custodian.
In Citizens’ Bank v. Miller, 45 La. Ann. 493, 12 South. 516, this court said:
“In a pending suit, where a judgment creditor of the plaintiff seizes all his rights, title, and interest in the suit, to which seizure no opposition is made, and the suit is prosecuted to final judgment, the seizing creditor is alone interested in it, and the suit is prosecuted for his benefit. He is therefore bound by the decree, and cannot afterward set up rights adverse to the party in whose favor the decree was rendered.”
At any rate, it does not seem to us that the debtor of the right has any interest in having the date of the attachment changed, so as to defeat the lien claimed by plaintiffs.
The question is not free from difficulty, owing to the different views expressed upon the subject. Nonetheless, we do not think we should overlook the fact that Rivers himself accepted the jurisdiction of the court by his answer, and that he did not raise the objection now urged to the judgment recognizing plaintiff’s lien.
The syllabus in Mutual National Bank v. John T. Moore, Jr., 50 La. Ann. 1332, 24 South. 304, lays down the rule of law approved by the decision.
A personal judgment which has been pronounced in a chancery court of the state of Alabama against a nonresident of that state upon personal appearance therein filed was recognized and enforced as a valid decree in personam against him; a fortiori a judgment pronounced in a Louisiana court upon the appearance of a defendant here will be recognized and enforced as a valid and jurisdictional decree.
Moreover, upon another issue (relating to evidence) it appears that the documents offered to prove the surrender in bankruptcy are not authenticated as required by the act of Congress of 1790 (Act May 26, 1790, c. 11, 1 Stat. 122), relating to the required attestation of the judge and clerk.
An instrument from another state, not authenticated according to the act of Congress, is not admissible in evidence. The documents admitted, to which objection was made and reserved by bill of exception, are in consequence not proof. They do not bear attestation of the clerk as to the fact, nor attestation of the presiding judge that the attestation is in due form.
Eor the reason of the law and the evidence
Rehearing
On Rehearing.
(Nov. 16, 1903.)
Statement of the Case.
The plaintiffs herein seized by attachment the interest of the defendant in the suit of Robert B. Rivers v. The Oak Lawn Sugar Co., Limited, then pending in ■the civil district court, and subsequently obtained judgment maintaining the attachment and recognizing the lien and privilege resulting therefrom. The suit referred to was, in the meanwhile, prosecuted by the attorneys originally employed, and, although it appears that one William C. Relyea, claiming to be the trustee in bankruptcy of Rivers, had intervened therein, and that an appeal from the judgment rendered by the district court was granted upon the application of Rivers and said Relyea, a final judgment was subsequently rendered by this court in favor of Rivers alone, and against the sugar company for an amount aggregating, with interest and costs, $5,375.68. Rivers v. Sugar Co., 105 La. 783, 30 South. 160. The plaintiffs herein thereupon caused a writ of execution to issue, reading in part as follows (omitting the caption):
“To the Sheriff of the Parish of Orleans, Greeting: We command you that by seizure and sale of the property, real and personal, rights and credits of defendant, Robert E. Rivers, in the manner prescribed by law, you cause to be made the sum of thirty two hundred and ninety nine 33/i0o dollars, with legal interest thereon from February 13th, 1900, until paid and costs, subject to a credit of $202.50; maintaining the attachment herein issued and recognizing plaintiff’s lien and privilege on the property attached, or the proceeds thereof. * * *”
Under this writ, as under the writ of attachment, notices of seizure were served on the Oak Lawn Sugar Company; on the counsel by whom the judgment against that company had been obtained, and who had also represented Rivers in the attachment suit; on the curator ad hoc, who had been appointed to represent Rivers for the purposes of said attachment; and on the clerk of the court by which the judgment seized was to be executed. The plaintiffs also filed' a supplemental petition, praying that interrogatories, which they annexed, be served on the Oak Lawn Sugar Company, but, in view of the fact that the liability of that company to Rivers had been fixed by the judgment of this court and of the additional fact that said company had paid the full amount of said judgment into the hands of the counsel by whom it had been obtained, subject to the judgment of the court as to the conflicting claims thereto, the service of the interrogatories was unnecessary, and plaintiffs proceeded by rule to require the parties interested to show cause why they should not be paid from said funds the amount of their claim.
To this rule Rivers answered that on June 14, 1900, he had been adjudged a bankrupt, and that William C. Relyea, who had been appointed trustee of his estate, had become the owner of the claim from which the funds in question had been realized, subject to the privilege of his attorneys, and had prosecuted the same to final judgment. The counsel who hold the funds, answering for themselves, set up a claim for professional services and for costs and charges amounting to $2,726.24, and, answering for William O. Relyea, calling himself trustee, (who had not, however, been made a defendant in the rule), alleged that the balance of the funds in question, amounting to $2,649.44, should be turned over to him.
Upon the trial of the rule the plaintiffs conceded the claim of the defendant counsel for attorney’s fees and charges in the obtention of the judgment against the Oak Lawn Sugar Company, and insisted only upon their right to recover the balance of $2,649.44, and, opposing the recognition of such right, the defendants in rule offered certain documents purporting to be copies of orders and proceedings in the District Court of the United States for the Southern District of New York showing that upon June 14, 1900, Rivers had been adjudicated a bankrupt, and Relyea appointed trustee of his estate. Thereupon counsel for plaintiffs in rule objected on the ground that the documents offered were not certified as required by the act of Congress, and were therefore inadmissible in evidence, the fact being that the alleged copy of the order or judgment of ad
Opinion.
The objection to the introduction in evidence of the documents referred to in the foregoing statement should have been sustained. Rev. St. U. S. § 905 [U. S. Comp. St. 1901, p. 677]; Bankr. Act July 1, 1898, c. 541, § 21, subd. e, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3430]; United States v. Bank of United States, 11 Rob. 418; Heard v. Patton, 27 La. Ann. 542. Disregarding those documents as improperly admitted, there is nothing in the record to show at what time, if at all, the defendant, Rivers, was adjudicated a bankrupt, and the appellant Relyea, appearing as the trustee of his estate, has no standing in court to question the validity of the attachment sued out by the plaintiffs, or of the judgment maintaining the same and recognizing the lien and privilege resulting therefrom.
It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered in this case be now reinstated and made the final judgment of this court.
