142 So. 742 | La. Ct. App. | 1932
Upon this statement of facts he alleges that he is entitled to a writ of provisional seizure to have all of said property on which he has a lien and privilege seized and held subject to the further orders of the court.
No allegation was made by the plaintiff that he believed that the leases or wells, or either of them, is or are about to be discontinued, or that the rigs, machinery, appurtenances, and appliances thereto attached are about to be sold or removed from the place where his service was performed, so as to deprive him of his lien and privilege.
In accordance with the prayer of the petition, a writ of provisional seizure was issued, and under it there was seized the following property, to wit: Two oil wells; 2 derricks; 1 standard rig and all equipment; 120 joints of six-inch pipe; 1 drilling rig complete, including pump, engine, rotary, and bailer.
Defendants filed an exception to the jurisdiction ratione personæ. based on the allegation that they were residents of the parish of Natchitoches and that therefore the court of Sabine parish could have no jurisdiction over them to try the suit. This exception was overruled, and the defendants then filed an answer in which they reserved all their rights under the exception.
In their answer the defendants admitted that the plaintiff did some hauling for them, but that it all had been paid for except $170, and that under the terms of their contract with the plaintiff this sum was not to be paid except out of one-fourth of seven-eighths of the oil produced and sold from one of the wells. It is then alleged that no oil had been produced and/or sold from the said well, and that therefore the said debt is not yet due and payable under the terms of the contract.
Upon trial in the district court there was judgment in favor of the plaintiff for $170; his first lien and privilege on and against all the machinery, including the drilling rig and standard rig and the drill stem pipe and casing seized under the writ of provisional seizure, was recognized; the writ was sustained and the property ordered sold to satisfy the judgment. It is from this judgment that the defendants have appealed.
On the question of the payment for the moving of the standard rig being dependent upon the production and sale of oil, the testimony is very unsatisfactory. This is a special defense, and in order to be established there must be a preponderance of evidence supporting it. We do not find this to be true, and we therefore sustain the lower court in rejecting the defense. *744
When the plaintiff brought this suit he evidently was relying upon Act No.
While, as we said above, it is evident that plaintiff initiated this suit under Act No.
Counsel for defendants take the position that since plaintiff based his demand upon the privilege provided in Act No.
Plaintiff can have no lien on anything except that which he actually hauled and which has not been paid for. The judgment appealed from is for $170 for the hauling of a standard rig. Under the testimony and the finding of the lower court, all the other stuff that was hauled was paid for. Plaintiff has not appealed, nor has he answered defendants' appeal. He is, therefore, bound by this finding and judgment of the lower court.
For the reasons assigned, it is ordered, adjudged, and decreed: (1) That the judgment appealed from be and the same is hereby reversed and set aside in so far as it may have sustained the writ of provisional seizure, which is hereby dissolved; (2) that it be amended by confining and restricting plaintiff's lien and privilege to the standard rig hauled by him; (3) that as thus amended the said judgment is affirmed; (4) that the costs of the lower court, except that incurred in connection with the issuance of the writ of provisional seizure, be paid by the defendants; and (5) that the costs of this court be paid by plaintiff. *791