17 La. Ann. 79 | La. | 1865
Plaintiffs, residents of New Orleans, brought suit against defendant, residing in Brookhaven, Mississippi, and attached property in the hands of a garnishee, who answered that he had in his warehouse several packages of merchandise belonging to 'defendant, which was taken into the possession of the sheriff.
Subsequently, one George P. Harrison intervened, claiming said goods ]by virtue of a deed of trust, executed in this city, and alleged to be duly
Several of said creditors in New York also intervened as vendors, setting up said deed of trust, and asked judgment for their resioeetive claims, to be paid out of the proceeds of the properly attached.
The intervenors, claiming the goods as trustee and as vendors, with the right of stoppage in transitu, then took a rule on the plaintiffs, the defendant and the sheriff, to show cause why they should not be allowed' to bond said property in conformity to law.
On this rule jugdment was rendered, dismissing the interventions and the rule, from which defendants have taken a devolutive appeal.
In the case of Hughes v. Klingender, 14 A. 52, it is said: “The law con-' fers upon the defendant only the right to set aside the attachment by giving bond. C. P. 259 ; Acts 1852, p. 165. It is not conferred on the creditors.
“It is true the courts have allowed, under an equitable construction of the Article, an intervenor, having possession and claiming to be owner to bond, in order to avoid the great injury which third persons might suffer by the unjust seizure of their property. ”
The intervenors in this case have not brought themselves within the application of this equitable construction of this. Article 'of the’ Code of-Practice.
They are not shown to have been in actual or constructive possession,. as owners of the property, at the time it was attached. The one claimed simply as trustee, for the purpose of paying the creditors, and not as real-owner. The others claimed as vendors, with the right of stoppage in transitu, which, when exercised, does not operate to rescind the contract of sale, but only enables him to enforce his lien.
They are, then, without the right to bond; but there is error in the judgment in dismissing the interventions on a motion to bond. The intervenors may be able to establish their rights, if any they have.
It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, so far as it dismisses the interventions herein, and that this cause be remanded to be proceeded in according to law, the appellees paying the costs of appeal, and appellants the costs of the proceedings in the lower court, on the rule to bond the property attached.
