Hefferman v. Brenham

1 La. Ann. 146 | La. | 1846

The judgment of the court was pronounced by

Kins, J.

This suit was commenced by a petition addressed to the Commercial Court, in which the plaintiff alleged that Charles J. Brenham and-James, who resided out of the Stats, were indebted to him for supplies furnished to the steamboat Ambassador, of which they were the joint owners,-and concluded by praying for a judgment in solido against those parties, with a privilege upon the boat. The return upon the citation is, that it was served “upon the defendants through Captain Brenham, one of them, in person.” There was no personal service upon James, nor was any counsel appointed to represent him. Brenham appeared and confessed judgment “according ftr the prayer of the petition,” and, on the same day, a judgment was' rendered against Charles J. Brenham„ part owner of the steamboat Ambassador,, and-against the steamboat Ambassador,” for the sum claimed. An execution issued' upon this judgment by virtue of which the entire steamboat was seized, when John JET. James, one of the defendants named in the petition, against whom no judgment had been rendered, took a rule upon the plaintiff, to show cause why the execution should not bo set aside, or so reformed as to direct the sale of the interest of Brenham only in the boat. This rule was discharged. James then intervened in the suit, by a third opposition, in which he alleged that be was the owner of three-fourths of the steamboat Ambassador, that he had not been cited in the suit,. and that no judgment had been rendered against him; that there was no allegation in the petition, nor proof exhibited, that a commercial partnership existed between himself and Brenham, and that although the judgment was in ■rem, the proceedings neither authorized nor contemplated such a decree. He further alleged that the confession of Brenham had been fraudulently and eollusively made, with a view of causing a sacrifice of the interest of the opponent in the boat, and concluded by a prayer that the execution of the fieri jadas should be restrained to the share of Brenham in the boat, to the sale of which no objection was made, and that the sheriff1 be injoined from selling the opponent’s interest.

Uefferman excepted to this petition, on the ground that James could not avail himself of a third opposition to resist the execution of his judgment, having been a party to the oidginal proceedings. The judge below.sustained the exception, and dismissed the opposition. From -this judgment James has appealed.

The question presented is, whether the opponent can legally use the remedy to which he has resorted, to protect his interest in the boat from seizure and sale under the judgment of Uefferman against Brenham.

The plaintiff .contends : 1st. That an opposition can only be made by a person not originally, a party to the suit, and that James was a party defendant in the original proceedings. 2d. That if-there be error in the proceedings or judgment in the original cause, it cannot.be corrected by a third opposition; but that relief should have been sought by an-appeal, or by an action of nullity.

I. The suit was instituted against the defendants, who were alleged in the petition to be owners of a steamboat. On one of them there was personal service of citation; on the other no service was made. It is contended that the defendants were commercial partners, and that the citation of one of them brought both before the court. Persons associated.together for the purpose of carrying personal property for hire in vessels are commercial partners by our law, and may be cited in the form prescribed for the citation of such associations. But it is only where they are associated together under a title or firm, that the service, made on one of the members only, of a citation addressed to the partnership in its social name, is sufficient. Code of Pract. art. 198. Civil Code, art. 2796. The goneral rule is that there -must be service of citation upon every party defendant, -to which this is one of the exceptions expressly ordained by law. There is neither allegation nor proof that the defendants had a social name, and service upon each was necessary to bring them into court. Code of Pract. art. 181. The proceedings were avowedly not in rem, and none of the steps required for bringing James, or his property, before the court in that form, were taken. He was not -cited in any of the modes provided by law, made no appearance, and must be considered to have been an entire stranger to the proceeding at the date of the judgment. He was so considered by the court below, and no judgment was rendered against him, notwithstanding the confession of Brenham.

The object of the opposition was not to revise, set aside, or correct the judgment of the Commercial Court, but to arrest its execution upon property of which James claims to be the owner, and which he contends is not liable to seizure under it. This is one of the purposes for which third persons may resort to this proceeding. Code of Pract. art. 395. It was not necessary that James should notice a judgment which was not rendered against him, and to which he was no party. Pie might well disregard it, until the plaintiff attempted to execute it upon his property; the law then furnished him adequate means of resistance by way of injunction, or opposition, and to the latter of these he had recourse.

We think the court erred in refusing to hear the party upon the merits of his opposition.

It is therefore ordered and decreed that the judgment of the Commercial Court be reversed, and the cause remanded for further proceedings ; the appel-lee paying the costs of this appeal.