72 So. 742 | La. | 1916
The Continental Bank & Trust Company filed executory proceedings against W. E. Coleman, on two promissory notes of $750 each, secured by a mortgage on the residence of Coleman and his family,
A few weeks after tbe seizure and before tbe day of sale, Coleman was adjudged a bankrupt in tbe United States District Court, and tbe property described as fractional block 14 E. of the McCormick Annex to Bossier City was set aside by the referee as tbe homestead of tbe bankrupt Coleman.
Thereafter, before tbe day on which the property seized in the suits of the bank was to be sold by the sheriff, Coleman filed the present suit against the bank and the sheriff to have tbe property occupied by him and his family as their residence recognized and decreed to be his homestead, exempt from seizure, and, in tbe alternative, to be paid $2,000 if it should sell for more than that sum. By an error, instead of describing fractional block 14, on which the plaintiff and his family resided, the petition described lot No. 8 of block No. 8 and lots No. 1, No. 2, and No. 3 of block 11 E. of the McCormick Annex to Bossier City; and instead of alleging that the homestead was seized in tbe suit numbered 6242, it was alleged that the property was seized in the suit numbered 6241. On tbe morning of the day on which tbe sheriff was to sell the property, Coleman’s attorney discovered that be bad made tbe mistake in tbe description of the property in his petition, and requested that the sale be postponed until he could amend tbe petition. Counsel for the bank objected to a postponement of the sale; and, at the appointed hour, the sheriff proceeded to sell the property seized in both suits. Lot No. 8 in block 8, seized in the suit No. 6241, was sold by tbe sheriff for $250; and fractional block 14, seized in tbe suit No. 6242, was adjudicated to the bank for $2,500. The attorney for the bank immediately tendered to the sheriff $300, to pay the costs in the suit numbered 6242, and requested that the bank be allowed to retain the balance of the purchase price in satisfaction of the debt due the bank. The sheriff refused the tender, and notified tbe attorney for the bank that he would not make a deed of tbe property to the bank unless the entire purchase price was paid into his hands. The attorney for the bank then called tbe sheriff’s attention to tbe fact that the suit filed by Coleman referred not to the property described as fractional block 14, that bad been seized in tbe suit No. 6242, but referred to the property seized in the suit No. 6241. The sheriff and the attorney for the bank then proceeded to ascertain the amount of costs to be paid by tbe bank; but before they completed their calculation, that is, about 20 minutes after tbe property had been adjudicated to the bank, Coleman’s attorney appeared with an amended petition correcting the error made in the original1 petition in Coleman’s suit, and requested the sheriff to accept service on the amended petition. The sheriff accepted service, making note of the fact that the service was accepted 20 minutes after the adjudication to the bank. Tbe attorney for the bank then deposited with the sheriff the amount the bank had bid for fractional
When the attorney for Coleman filed the amended petition in the clerk’s office, he discovered that the clerk had not docketed the original petition as if it were the beginning of a new suit, but had indorsed upon it the title and number of one of the suits of the bank against Coleman, viz. Continental Bank & Trust Co. v. W. E. Coleman, No. 6241. The attorney immediately had the clerk docket the original and supplemental petition as a new suit, entitled W. E. Coleman v. Continental Bank & Trust Co. et al., No. 6274.
Answering the original and supplemental petition of Coleman, the bank admitted the seizure of lot 8 in block 8 in suit No. 6241, and alleged that it had been sold under the writ of seizure and sale; denied that the property was exempt as a homestead; denied that fractional block 14 was seized in the suit No. 6241; denied that the mortgage securing the note of $2,000 was secured by a mortgage on any property occupied by the plaintiff or his family as a residence; alleged that the petition in the suit entitled W. E. Coleman v. Continental Bank & Trust Co. et al., No. 6274, was originally filed and indorsed as a petition of intervention in the suit No. 6241, entitled Continental Bank & Trust Co. v. W. E. Coleman, and so remained filed and indorsed until after the property was sold by the sheriff; and alleged that the sheriff had accepted service on the amended petition after the property was sold at public auction. The defendant denied the sheriff’s right or authority to retain $2,000 or any part thereof to satisfy the plaintiff’s demand, and averred that lot 8 of section 8 was sold by the sheriff for only $250.
The defendant did not taire exception to the first amendment of the petition, because it is well settled that the plaintiff may file as many supplemental or amended petitions as he sees fit before the defendant has appeared to answer or except to the original petition. See Lehman Dry Goods Co. v. Lemoine, 129 La. 382, 56 South. 324.
Judgment was rendered in favor of the plaintiff, recognizing fractional block 14 E. of the McCormick Annex to Bossier City to be the plaintiff’s homestead and ordering the sheriff to pay to the plaintiff $2,000 out of the proceeds of the sale of the property. The defendant, Continental Bank & Trust Co., has appealed.
The decision in Johnson v. Agurs, supra, was quoted with approval in Abbott v. Heald, 128 La. 722, 55 South. 28, where it was again held that the debtor could claim the $2,000 reserved to him as a homestead exemption, in case of a judicial saie of the homestead, as long as the proceeds of the sale remained
The defendant’s counsel contends that, as the bank had the right to retain the proceeds of the sale in satisfaction of its .mortgage, the proceeds of the sale were absorbed by confusion, the bank being both debtor and creditor for the same sum, and that there was therefore no fund in existence to represent the proceeds of the sheriff’s sale when the plaintiff filed his first amending petition, correcting the error in the original petition, as to the description of the homestead. There might be some merit in that contention if the sheriff had completed the sale by collecting the costs from the adjudicatee, pet-mi'tting the latter to retain the surplus of the proceeds of the sale in satisfaction of the mortgage debt, and making a deed to the bank. But the sheriff had been notified of the error in the description of the property in the plaintiff’s original petition, and he therefore refused to complete the sale, demanding that the purchaser pay the entire proceeds to him, the sheriff, under the order that had been obtained to hold the proceeds on the petition containing the error in the description of the homestead. And, before the sale was completed by the sheriff, the error in the description of the homestead in the original petition was corrected by filing the supplemental or amending petition. We are not called upon to decide whether the sheriff was or was not justified in delaying matters until the plaintiff’s attorney could correct the error and assert his demand on the proceeds of the sale of the homestead. Assuming that the adjudicatee had the right to take advantage of the error in the original petition and to insist that the sheriff complete the sale and disburse the proceeds before the error could be corrected, as a matter of fact the sheriff did not complete the sale and disburse the proceeds. That he might have done it does not alter the fact that he did not. Our conclusion is that the plaintiff’s demand for recognition of his homestead exemption was asserted in time to avail him if he was entitled to the exemption.
The plaintiff and his family, consisting of his wife and four children depending upon him for support, occupied the property in dispute as their home at the time he gave the mortgage; they had lived there 16 years, up to the day before this suit was tried, when the sheriff ordered them to vacate.
It is contended' by the defendant’s counsel that the plaintiff abandoned the homestead by moving out of the house and renting it to a tenant. The facts in that regard are that the plaintiff left his home and went to another town about 30 miles away, where he engaged in a small grocery business, in August, 1911, and returned to his homestead in January, 1912. After having moved to the town where he engaged in business, he brought his wife and children there, and they returned with him to the homestead. Plaintiff testified that he did not intend to abandon his homestead, and his testimony is corroborated. When he left his home, a neighbor proposed renting it, but the plaintiff refused to rent it for more than a month, saying that he intended to return and did not know how soon he would return. The tenant refused to rent the house under those conditions, but, with the permission of the plaintiff, occupied it less than a month and was not charged any rent for the occupancy. The plaintiff left some of his furniture and household furnishings in the house, and kept one room completely furnished for his own use, which was occupied by the plaintiff’s father-in-law, during the plaintiff’s absence, and a part of the time by another man, with the plaintiff’s permission. The circumstances, in our opinion, show that the homestead was not abandoned.
The judgment appealed from is affirmed, at the cost of the appellant.