144 So. 271 | La. Ct. App. | 1932
This case is before us on rehearing. In our original opinion, reported in
Defendants appellants moved for a rehearing alleging in effect:
(1) That the court erred in holding that the exception to the jurisdiction of the court was not good;
(2) That the court erred in recognizing a carrier's privilege upon the rig hauled, without a carrier's privilege having been expressly alleged as such, since privileges are strictly construed, and must be specially alleged;
(3) That the court erred in affirming the judgment of the lower court which granted a judgment in solido against the individual members of the defendant partnership, inasmuch as this is an ordinary partnership in which each partner is bound only for his virile share.
We shall discuss these grounds in the order stated.
Exception to the Jurisdiction of the Court.
It appears from the record and also from the statement of counsel, which we fully accept, that the exception to the jurisdiction of the court was fixed for trial in the district court in advance of the trial on the merits, but that it was not actually tried because the lower court at that time, due to the character of writ obtained by plaintiff, assumed that Act No.
In view of the recent decisions of this court to the effect that the said act (No. 171 of 1928) does not create a privilege in favor of laborers working upon the well if it is a dry hole, we would unhesitatingly remand the case for the purpose of receiving testimony on this plea, if it really had any bearing on the case; but, in our opinion, the district court of Sabine parish did have jurisdiction to try the case, because the petition alleges and the facts show that the defendants Hawkins Antoon comprise a copartnership operating in the parish of Sabine, engaged in the business of drilling oil and/or gas wells. The facts further show that plaintiff, in the parish of Sabine, engaged to perform work for which this suit is brought to recover compensation.
Of course, the general rule is that a defendant must be sued at his domicile, but there are exceptions to this general rule. Article 165 of the Code of Practice of Louisiana, par. 2, in dealing with these exceptions, provides:
"Partnership. In matters relative to partnership, as long as the partnership continues, in all suits concerning it the parties must be cited to appear before the tribunal of the place where it is established, or if there are several establishments, before that of the place where the obligation was entered into."
In the case of Hayes Machinery Company v. Eastham et al.,
Continuing, the court said: "Thus our law of procedure specifically requires that suits of the present character must be brought either at the domicile of the partnership, or, if it has two or more places of business, at the place where the obligation was entered into."
The case of Rester v. Moody Stewart,
It is clear, therefore, that, since Hawkins Antoon constitute an ordinary partnership, doing business in Sabine parish, La., and having made the contract sued on in that parish, and the partnership and the individual members composing it having beer personally served in that parish, the district court of that parish clearly had jurisdiction in this case.
In our opinion plaintiff sufficiently alleged in paragraph 2 of his petition a carrier's privilege, for in that paragraph he avers, in effect, that the sum sued for is to pay for labor performed in hauling material and supplies to and from certain wells drilled and being drilled in Sabine parish. After making the allegations as to the nature of the labor performed, plaintiff avers that he has a first lien and privilege on the standard rig and equipment of the defendant, located on certain wells, which was the property or equipment he did haul. True enough, plaintiff may have sought to bring his case within the provisions of Act No.
While, with the dissolution of the writ of provisional seizure, the property on which plaintiff asserts his lien ceases to be in the custody of the court, yet plaintiff's lien may be recognized in the judgment of the court rendered in this case and enforced against that property, if it is available.
We have reached these conclusions upon an analysis of plaintiff's pleadings, notwithstanding the fact that counsel is correct in his view that privileges must be clearly alleged and proved and strictly construed.
Accordingly, the judgment of the lower court is amended by dissolving the writ of provisional seizure issued in the case, and by making each member of the defendant partnership responsible only for his virile share of the sum decreed to be due plaintiff, and, as thus amended, it is affirmed; plaintiff, appellee to pay all costs of appeal. *274