40 La. Ann. 796 | La. | 1888
The opinion of the Court was delivered by
Plaintiff, a creditor of George Peuser, an absconding-defaulter, took out a writ of attachment against him under which Gustave Peuser was made a garnishee.
In answer to interrogatories, Gustave Peuser disclosed the facts-that, on the eve of his flight, bis brother, George Peuser, had transferred to his name certain shares of city railroad stock, which he had sold and received therefor the price of thirty-three hundred dollars. This sum, he says, “I subsequently deposited in the Germania Savings Depository in my name, under an agreement with George Denegre, attorney of plaintiff herein, subject to tbe decision of my mother’s rights thereto in this case.”
He admits that the money is thus in Ms hands, that it was placed iu Ms hands by George Peuser, who at the time owned the stock from the-sale of which it was realized, and he does not pretend to have the slightest claim upon it in his own right.
But he denies that it is due to George Peuser, and says that it was placed in Ms hands for their mother to whom, he says, it belongs.
Mrs. Peuser has intervened in tbe case and is championing her own rights.
Accordingly a traverse was filed. The issue was tried exclusively between the plaintiff and the garnishee. When Mrs. Peuser, the intervenor, attempted to take part therein, objection was made on the ground that the question of her right was not involved and that the decision upon the traverse could not affect her, which objection was sustained by the court.
The traverse was tried before a jury and resulted in a verdict and judgment in favor of plaintiff, but simply ‘‘ordering said Gustave Peuser to turn over to the sheriff the said $3,300 in currency, to be held by said sheriff to await the final decision of this suit, etc.”
The only possible effect of this judgment is simply to maintain plaintiff’s seizure of the fund and to hold it iu court subject to the final decision of the rights of the claimants thereon. A contrary decision Would have liberated the fund and have thrown plaintiff out of court. It would, in effect, have been a decision in favor of Mrs. Peuser without trial or hearing.
As the matter stands, no one is prejudiced. Mrs. Peuser’srights are perfectly .preserved. She is not, in any .degress, affected by this decision. Her intervention is before the court and must be determined before any disposition of this fund can he made. Moreover, she has not appealed. The only appellant is the garnishee, and what possible right ho can have to complain is not apparent. He claims no interest in the fund. He admits that he received it from George Peuser, and he suggests no claim that anybody else has upon it except his mother. She has asserted her own claim judicially, and that is the issue upon which-depends the disposition of the fund.
The garnishee also filed an exception to the effect1 that, as plaintiff’s claim against George Peuser appeared on its face to be secured by a pledge of amply sufficient property for its payment, the petition set forth no cause of action.
Without discussing the questien whether, under the circumstances of this case, an exception of this kind lies in the mouth of the garnishee, the exception, as such, has no merit. The mere fact that a creditor holds collateral securities, does not prevent the principal debt from becoming due nor debar him from pursuing his legal remedies
In this case, it is in evidence that the title to the securities origin■■ally pledged is in contest before.the courts. The rights of the defendant or others interested to require the surrender or application of the ■original securities are not here involved. The garnishee has no right or interest in the premises.
Judgment affirmed.
