32 La. Ann. 290 | La. | 1880
The opinion of the court was delivered by
This case was before this court in January, 1876, and ■ ■will be found reported in 28 An. 97.
Subsequently to the proceedings therein described, plaintiff filed two supplemental petitions. In the first the claim of ownership and for sequestration was restricted in amount, in the second an alternative demand was made for judgment for amount of the coupons, with recognition of privilege, on the funds. This court, as will be seen by the reported case, affirmed the judgment dissolving the sequestration.
On trial of the merits below there was final judgment against the plaintiff, and in favor of defendant on all demands. Plaintiff appeals.
We have not been favored with an oral argument or a brief by the city. Plaintiff abandons its pretensions to judgment against the defendant bank or its directors, as also its claim of ownership of the funds •sequestered.
It claims, however, a judgment against the city for the amount of •the coupons, and with privilege on the funds aforesaid.
We are unable to see upon what ground plaintiff was denied a judgment against the city for the coupons sued upon. There is no pretense that they are not just debts of the city, now long since due.
There is no doubt that the law required these funds to be applied primarily to the payment of the interest coupons of the consolidated ■bonds of the city, and secondarily to the bonds issued under act 49 of 1869, coupons of which two classes of bonds constitute those sued upon by plaintiff. We are not prepared to say, however, that plaintiff has a “ privilege ” on said funds over other holders of similar coupons; nor, indeed, that it has any “privilege” at all. It doubtless had'such •right as would have supported a proceeding to compel the city authori•■ties to apply the funds to the purposes specified by law, i. e. to the payment of the coupons in question. But that is not the nature of this proceeding. It is a simple demand for a money judgment, with recognition of a privilege upon the fund. We shall give plaintiff a judgment.
It is therefore ordered, adjudged, and decreed that the judgment, appealed from is affirmed in so far as relates to the defendants, the-Louisiana National Bank and its directors. Also,, in. so'far as it rejects-plaintiff’s claim of ownership of the funds in question. That in other respects said judgment is avoided and reversed ; and it is now ordered! and decreed that plaintiff have and recover of the defendant, the city of New Orleans, the following sums with interest as follows, to wit: For the sum of twenty-three thousand seven hundred and thirty dollars,, with legal interest from July 1,1875, until paid ; also for the sum of' fifteen thousand four hundred and twenty dollars, with like interest from first January, 1876 ; also for the sum of four thousand three hundred and seventy-five dollars, with like interest from, first March, 1875 ;. also for the sum of two thousand eight hundred and seventy-eight dollars, with like interest from first November, 1875* and costs of suit. It is further ordered that plaintiff’s right, by proper proceeding,.to-corn-pel the application of the funds in question to the payment of the sums-aforesaid in whole or part, and as provided by law; is- specially reserved.
