| La. | Jun 15, 1866
The plaintiffs brought this suit on the 23d December, 1864, claiming of the defendants who are non-residents, the sum of $1,950, with interest, and garnisheeing at the same time, Bower, Garner & Harrison; citation, copy of petition, order of attachment and interrogatories were duly served on A. Bower, a member of said firm, on the 24th day of December, 1864, at twenty minutes after nine o’clock, A. M. On the 5th of January, 1865, in answering the interrogatories, they say :
“At the time of service of process herein, on our firm, to wit: on the 24th of December, 1864, we had no moneys, goods, property or merchandize belonging in whole or otherwise, to the defendants, Smith, Bullins & Co., except the sum of $776 74, and a balance of $446 51, on 100 barrels of flour, making a total of $1,222 25. Both the cash, viz : $776 74 and the flour were garnisheed in our hands, and seized in the suit of Baur & Bohle v. Smith, Bullins & Co., No. 13053, of the Sixth District Court of New Orleans, on the 23d December, 1864, and before we received any notice of seizure and garnishment in this suit. At the same time we received notice of seizure and garnishment process in this suit, we also received them from the suit of Mahoney & Stutz v. Smith, Bullins & Co., No. 18861 of the Third District Court * * * * We further state : at the time of the seizure and garnishment was made, we had nothing else belonging to Smith, Bullins & Co., but we had’ previously received and did then hold two bills of lading, one for 685 barrels of flour, and the other for 146 barrels of flour, shipped by Smith, Bullins & Co. to us, and to be delivered to us to secure advances and charges made by us on said flour to them, amounting to about $7,900. The exact amount is not stated, because the transaction and accounts are not fully complete; the flour is of the value of $9,547 51, which will leave abalance of not over $1,647 51, should the balance differ, respondents will pray leave to state hereafter the exact balance; the 1,005 barrels of flour were received by us on the 2d January, 1865, after the seizure made in this suit, and were seized by Baur & Bohle in their suit against gmith, Bullies $ Qo, Sfo, 13053 of the £>ixth, District CQurt,”
The garnishees first pleaded to the jurisdiction of the Third District Court, on the ground that the Sixth District Court was the proper one to distribute the proceeds of property attached among the creditors, but that exception has been abandoned in this Court. But they contend that the notice of seizure in the suit of C. & T. Schindler, served on the garnishees, on the 23d December, 1864, at half-past three o’clock, P. M., by having the same at their counting-room in the hands of a clerk, being the bookkeeper, was illegal and should have been served personally on the garnishees. We know of no law requiring a personal service of such a notice; the law requires a personal service of the interrogatories as an exception to the general rules, we cannot extend it to any other service. Baur & Bohle also brought a suit against the said Smith, Bullins & Co., and they garnisheed the said Bower, Garner & Harrison, and attempted to attach the same property attached by plaintiffs, and the question arises as to who has priority between these two attaching parties. Both suits were filed on the same day, 23d December, 1864; before the filing of the suit of Baur & Bohío vs. Smith, Bullins & Co. Bower, Garner & Harrison, the garnishees, accepted service as follows: Service of copies of petition, citation, order, and interrogatories received and service thereof accepted, New Orleans, December 23d, 1864. Signed, Bower, Garner & Harrison. Notice of seizure was served upon them the same day by the Sheriff, at a quarter to six o’clock, P. M. The waiver and acceptance of service are written on the petition, and were made in the office of Baur & Bohle’s attorney, before the filing and the existence of any order of attachment.
The laws of attachment must be strictly construed and applied, otherwise they will not avail the attaching creditor.
The 4et approved March 18, 1858, p. 176, provides that no seizure shall bind any property or effects, rights or claims in the hands of garnishee, either under process of attachment or fieri facias, unless service of the interrogatories has been personal upon such garnishee.
Now the question arises : can a garnishee voluntarily accept or waive service of the proceedings which are directed by law, to be served by an officer of Court ?
We are of opinion he cannot, and if he do, it is not binding, either on another attaching creditor or on the debtor. The garnishee, in the eyes of the law, is a mere stakeholder, a custodian of the property attached in his hands; he has no pecuniary interest in the matter; he has no cost to pay, and therefore none to save; his business is to let the law take its course between the litigants; he has no right to accept or waive service of the proceeding, thereby favoring one party at the expense of
Baur & Bohle, by a supplemental petition, took other proceeding in attachment on the 2d January, 1865; the same garnishees were duly served with the necessary proceedings, and the Sheriff took actual possession on board of the steamer Pauline Carroll, of the flour comprised in the two bills of lading, which were in the hands of said garnishees when they were duly served, on the 24th of December, 1864, with all the necessary proceedings in garnishment, in the suit of C. &T. Schindler; the control and legal possession of the flour were then in the garnishees’ hands under the bills of lading, and out of the power of the debtors, and the carrier held the flour for said garnishoes as holders of the bills. After shipment, the carrier holds the property for the lawful holder of the bill of lading; if it be drawn in the consignee’s favor, the consignee’s possession and control are gone, and with them his privileges as vendor. Fetter v. Field, 1 An. 80; see also 4 An. 452, 9 L. 322. Therefore the process of attachment served on the 24th December, 1864, by C. & T. Schindler, on Bower, Garner & Harrison, consignees and garnishees attached the flour in transitu, subject to the claims of said consignees; and when Baur & Bohle attempted to attach the same flour on its arrival in New Orleans, and on board the steamer, they could not affect the previous attachment of C. &T. Schindler.
But we think the judgment rendered below upon the rule, against the garnishees, must be modified. There are two concurrent attaching creditors; the plaintiffs in this case, who have obtained a judgment for $1,950, with interest, and Mahoney & Stutz v. the same defendants and garnishees, for $1,760, with interest, and it seems by their answers that tho garnishees have in their hands only about $2,869 76, subject to distribution between the said two concurrent attaching creditors.
It is therefore ordered and decreed that the judgment appealed from, be so modified as not to make the said garnishees liable for more than they have in hand, say $2,869 76; to be proportionably distributed between said two concurrent attaching creditors, and that as amended the said judgment be affirmed, the appellees to pay the costs of appeal.