197 So. 307 | La. Ct. App. | 1940
Plaintiff, for his own account, and as assignee of H.B. Lawrence, F.A. Estes and B.F. Abbitt, sues J. Thomas Driscoll, Inc., and Driscoll Drilling Company, Inc., to recover amounts due them respectively for labor performed and services rendered in connection with the drilling of a well in Caddo Parish in search of oil and/or gas; and for the penalties and attorney's fee recoverable under Act
A writ of provisional seizure, under appropriate allegation therefor, issued. The well and lease referred to in the petition, together with the drilling equipment, etc., thereon were seized by the sheriff.
The Driscoll Drilling Company, Inc., did not answer. Issue as to it was joined by default. J. Thomas Driscoll, Inc., admits that plaintiff and the other named laborers were employed by it to render services in drilling said well and that each did so for different numbers of days and at daily wages set out in its answer. This defendant denies that either claimant was discharged from work, but, on the contrary, avers that all were "temporarily laid off due to weather conditions and other unfavorable circumstances." It also denies that they are entitled to recover the penalties and attorney's fee sued for, or that the property seized was about to be abandoned, sold or removed.
By way of reconvention, this defendant denied the truth of the allegations employed to procure issuance of the writ of provisional seizure, and averred that said writ illegally issued and should be dissolved with judgment in its favor for attorney's fee and damages for the loss of the use, depreciation in value, etc., of the drilling rig and equipment seized.
Judgment was rendered for plaintiff and against J. Thomas Driscoll, Inc., for $336.50, with legal interest thereon from February 9, 1939; the writ of provisional seizure was maintained with recognition of *309
lien and privilege on the property seized, as provided by Act
There was also judgment for $100 as attorney's fee; for $12.50 per day from January 17, 1939 to February 7, 1939, and for $15 per day thereafter as penalty under Act
J. Thomas Driscoll, Inc., which will be hereinafter referred to as the defendant, applied for a rehearing and prayed therein, if granted, that the judgments be amended and modified by rejecting plaintiff's demands in toto, save for the labor claims and the recognition of the lien and privilege securing their payment.
Defendant also filed application for a new trial, alleging as a reason therefor, that the judgment is erroneous in that it is in personam whereas it should have been in rem only. Both applications were denied and defendant brings this appeal. By answer to the appeal, appellee moves us to increase the attorney's fee to $500, but in all other respects, prays that the judgment be affirmed.
In this court appellant tenders and argues only two questions, both of law, viz.:
1. That the judgment should have been in rem only, since its domicile is in Bossier Parish.
2. That penalties and attorney's fee should not have been imposed.
Appellee does not dissent from this position, therefore, our labors will be confined to the agreed gauge of battle.
Appellee, in brief, challenges the jurisdiction of this court, ratione materiae, to pass on the appeal, and cites to support this position, Page v. Pinckard et al.,
In the present case, plaintiff prayed for judgment for $415, plus $20 per day penalty (the aggregate of the alleged daily wage of the claimants) from January 16, 1939, until paid, and for $500 attorney's fee. The case was tried, submitted and judgment therein rendered on March 10, 1939. Therefore, at date of judgment the total accrued amount, on the basis of the petition's allegations, was considerably less than $2,000, but at the present time, on the basis of plaintiff's theory, and also under the terms of the judgment, more than $2,000 has accrued. This fact motivated the suggestion of our lack of jurisdiction.
If we deemed the Page case controlling of the issue, we would have to decline jurisdiction of the appeal. It seems that this case stands alone in our jurisprudence so far as the jurisdictional question therein discussed and passed upon is concerned. We find no specific reference to the case, favorable or unfavorable, in subsequent jurisprudence.
There is, at least, one subsequent case which conflicts with the jurisdictional principle announced in the Page case. It is Madison v. Prudential Insurance Company of America, reported in
We are of the opinion that this court has jurisdiction of the appeal.
Plaintiff contends that as defendant filed no plea to the jurisdiction in limine litis or otherwise, but answered without *310 reservation, the right to decline jurisdiction was waived. He cites Art. 93 of the Code of Practice to support this position. This article reads as follows: "If one be cited before a judge whose jurisdiction does not extend to the place of his domicile, or of his usual residence, but who is competent to decide the cause brought before him, and he plead to the merit, instead of declining the jurisdiction, the judgment given shall be valid, except the defendant be a minor."
Also several cases which enforce this article as written, are cited and relied upon, among which are the following: Bernstein v. Dalton Clark Stave Co.,
Appellant contends that in cases of this character, the court is absolutely barren of jurisdiction ratione personae; that the proceeding is exclusively one in rem and its character, in that respect, may not be altered.
Art. 163 of the Code of Practice, as amended by Act
In Tupery v. Edmondson, supra, it was squarely held that by answering to the merits before pleading to the jurisdiction, defendant waived the right to decline jurisdiction and that a judgment in personam under such circumstances was valid and binding on him. The court so ruled after considering and discussing Act
The most recent case dealing at length with this question is Franek v. Turner,
The administratrix of Franek's succession instituted suit in Orleans Parish to revive the original judgment. Personal service was made upon Turner, still a resident of Calcasieu Parish. Again he made no appearance and again judgment by default went against him. In October 1923, over ten years after rendition of the original judgment, Turner instituted suit against the administratrix in the Parish of Orleans to annul both judgments on the ground that the court had no jurisdiction to render a personal judgment against him. He was successful. The administratrix appealed. Chief Justice O'Niell clearly states the issues, and, in passing, said: "The defendant contends that Turner, as defendant in the original suit, tacitly subjected himself to personal liability for the judgment prayed for by the plaintiff in that suit, by failing to plead to the jurisdiction of the court ratione persona. As a general rule, a defendant who is sued in a court that has not jurisdiction over him personally becomes liable to have a personal judgment rendered against him if, being cited personally, he does not take exception in limine litis to the jurisdiction of the court. But that rule is not applicable to this case, because the court in which Turner was sued did have jurisdiction over the case, to the extent of the value of the property that was provisionally *311 seized. If he had excepted to the jurisdiction of the court, the plea would have been overruled. It was not incumbent upon him to plead — or to remind the court — that, according to the act of 1876, amending article 163 of the Code of Practice, the judgment which the court had jurisdiction to render against him would `only be operative up to the value of the property proceeded against, and not binding for any excess over the value of the property in personam against the defendant.'"
Thompson v. Calcasieu Trust Savings Bank,
Merchants' Farmers' Bank v. Fischer Lumber Company,
In Canal Bank Trust Company v. Greco et al.,
Such also was held in Carroll v. Bancker et al., 43 La.Ann. 1078, 1194-1196, 10 So. 187.
When a plaintiff avails himself of the provisions of Act
The lien and privilege asserted by plaintiff is established by Act
For the reasons herein assigned, the judgment appealed from is amended by expunging therefrom the award for penalties and attorney's fee, and, as thus amended, said judgment is affirmed with costs; plaintiff's suit, in so far as recovery of penalties and attorney's fee is sought, is dismissed as of non-suit. *312