35 La. Ann. 759 | La. | 1883
The opinion of the Court -svas delivered
Moses Lobe & Co., who are called intervenors,,the adjudícateos of valuable property at sheriff’s sale.made.under executory process in this case, file a petition called an intervention, in which they, allege that fact, and' further' aver, substantially, that various named; persons claim mortgage and other rights upon said property,, and “all; are claiming from petitioners the .proceeds of said property, and' claim priority.” They, therefore, prayed that said parties be cited to appear- and contest their claims to the fund contradictorily with each other,- and that after hearing, the price in .their hands be decreed to he paid; to such party or parties as shall effectually disburden the property .of all claims, mortgages, liens and 'privileges, and free petitioners from any claim 'whatever, and that the .property p.ass to them with a title, clear, clean and unburdened, and for all such general relief as the, na-,ture and circumstances of the ease may require. , , \
The various parties named were duly cited; and appeared and filed, exceptions óf no cause of aotion. Morris, in addition, excepted to the; ”
1. As to exception of no cause of action,
"■ The proceeding is in the nature of a bill of interpleader in chancery practice, which is a bill exhibited by a third person, who, not knowing to whom he ought of right to render a debt or duty, fears he may be hurt by some of the claimants, and therefore prays they may interplead, So that the court may judge to whom the debt is due, and he be thereby safe on the payment.
It may be admitted, that the textual provisions of our Code of Practice do not provide for such a remedy ; but under Art. 21 C. C., and on' general principles, this Court has often held that the Code of Practice does not exclude all other remedies than those therein provided for, and that the courts will afford other appropriate remedies where not prohibited, and they have repeatedly enforced remedies identical with the one here invoked. Fortier vs. Slidell, 7 Rob. 398; Clark vs. Saloy, 2 An. 987; Lizardi vs. Gossett, 1 An. 138; Trustees vs. Dupuy, 3l An. 305.
When this identical case was formerly here, we indicated very clearly our own opinion that the petition of Lobe & Co. presented a good and substantial cause of action, though we threw doubt upon the propriety of his urging it otherwise than by a direct and independent action. The latter question however was not before us, and we distinctly declined to decide it. Morris vs. Cain, 34 An. 657.
■ The record, as well as the allegations of the petition, satisfies us that Lobe & Co., who owe only afixed sum, and are entitled to pay but once and receive a clean and unincumbered title, are harrassed by conflicting claims separately urged, exceeding together very largely the amount due by them, which they cannot be required to decide at their own risk, but are entitled to have settled by the Court in a manner final and conclusive upon all. Fortier vs. Slidell, 7 Rob. 398. Independent of the question of the modus of proceeding, we hold, therefore, that the petition discloses a good cause of action.
. 2. As to the mode of proceeding.
If the fact that the petition styles itself an intervention rendered it essential for its maintenance, that it should be an intervention within the definition and rules regulating that proceeding provided by C. P.Arts. 389 elseq., obviously it could not be supported. There exists a radical inconsistency between our intervention, and the chancery inter-pleader, which last is substantially the action at bar, viz: in the inter-pleader, the tertius disclaims interest in the subject, and calls on those
But courts concern themselves with things, not with names. Having decided that the petition sets forth a cause of action against the parties cited, the substantial matter left for our consideration is, whether it was properly filed in this proceeding, and if we should determine that it was, the fact that it is erroneously styled an intervention will be of • little consequence. Succession of Triclie, 35 An.
This proceeding possesses every element of a direct and independent action, except the single one that it is filed, docketed, and numbered as part of the former suit. The parties defendant are regularly cited, and; have in every respect the same opportunities of defense which would have been afforded by an independent action.
“The adjustment and ranking of conflicting mortgage claims fall, within the jurisdiction of the court from which the process issued, under which the sale of the mortgaged property was made, and would not be cognizable originally in any other tribunal.” Factors vs. DeBlanc, 31 An. 100; Adams vs. Dannis, 29 An. 320.
The same principle is affirmed by the express provision of Rev. Statutes, Sec. 1942. Therefore, it appears that the demand was brought before the only Judge who could have had cognizance thereof. Then, on general principles, to the exception under consideration the question might well be opposed, cui bono ? But a yet more conclusive objection' exists.
•Under the peculiar constitution of the Civil District Court, if Lobe’ & Co. had filed an independent suit, it might well have been allotted to different Judges or division of the court from the one under whose process the sale had been made, and who would have been entitled to exclusive jurisdiction thereof. To meet this very difficulty,* the Court had adopted the following appropriate rule :
“ All suits or proceedings not in their nature original, but growing out of suits or proceedings previously pending, such as actions of nullity of judgment, to restrain or regulate the execution of process, mesne or final, in suits previously pending, shallnotbe docketed as separate suits, but shall be treated as part of the original suit out of which they arise and be docketed and numbered as part of the original suit, and follow the allotment or assignment to the respective divisions of the Co'urt which shall have been made of the original suit.”
■ Under this rule, it seems apparent that Lobe' & Co.’s petition, even5
VUnder these circumstances, we must regard the exception as too insubstantial and objectless to merit further consideration.
: 3. The exceptions of Wiltz, concurred in by Roos, manifestly pertain to the merits of the case, and have no foundation as exceptions. What effect the pendency of Wiltz’s suit to annul the entire mortgage may have upon the settlement of the rights of the parties in and upon the fund, and what provision for the protection of Lobe & Co., the pendency of that suit may require, are matters to be determined in the final decision of-the cáuse.
< -It is, therefore,- ordered, adjudged and decreed that the judgment appealed from be reversed, the exceptions overruled, and that the casé be remanded-to the lower court-, to be proceeded with according to law, appellees to pay the costs of their exceptions in’ the lower court, and those of this appe'al.
