Matthews v. Crescent City Mutual Insurance

26 La. Ann. 386 | La. | 1874

Wyly, J.

Plaintiff alleges that he is the owner of certain insurance scrip of the Crescent Mutual Insurance Company, of the full value of six hundred and forty dollars and dividends accrued thereon to the sixth of July. 186t3, viz: one hundred and ninety-two dollars, with interest; that he made due application to said insurance company for said scrip, dividends and interest, and they refuse to deliver the same to him, and that they have been duly placed in default therefor.

Issi.e was joined by defendants, who admitted that they held such scrip and dividends, but that the same were, on the sixth day of July, 1868, garnisheed in their hands by one Daniel Hillman, a judgment creditor of plaintiff in suit No. 17,817 of the docket of the late Fourth District Court of New Orleans; that subsequently judgment was rendered in favor of said Hillman against respondent, said insurance company, as garnishee, and that thereunder they have paid the said scrip and dividend to said Hillman, and they therefore deny any liability to said Matthews.

The court gave judgment for the plaintiff and the defendants appeal. There are two insurmountable difficulties in the way of the defendants:

First — Plaintiff’s assets or property in their hands was. not seized by the garnishment process, because the fieri facias was not in the sheriff’s hands when the interrogatories were answered ; and the judgment against them in that proceeding was a consent judgment, not binding on the plaintiff nor in any manner divesting his title to the property in question.

Second — The judgment upon which the pretended garnishment process issued was an absolute nullity, because there was no citation served on Matthews, against whom it was rendered; and a seizure or sale under a judgment, void for want of a citation, neither confers a right nor divests a title.

It is therefore ordered that the judgment herein be affirmed with costs.