Walker v. Creevy

6 La. Ann. 535 | La. | 1851

The judgment of the court was pronounced by

Preston J.

A. W. Walker obtained judgment on the 23d of May, 1849,. and issued an execution against William Creevy. He accompanied the execution with a petition and interrogatories to Messrs T. and G. Forbes, and an order to answer the same ; making them garnishees, and seizing all rights of Creevy against them.

They answered, that they were defendants in a suit of W. Creevy against them, pending in the Fifth District Court of New Orleans, and that, whenever a final judgment is rendered therein, it will fix the position and liability of the parties. In that case, a judgment was rendered in favor of Creevy against them, for $1066 70.

Walker then took a rule on the garnishees, to show cause why they should not pay him the amount of the judgment of Creevy against them.

Woodruff Co. intervened, and claimed the judgment as having been assigned to them by Creevy. The controversy between the parties was tried, and the court gave judgment for Walker against T.-and G. Forbes, declaring that his seizure took precedence of the transfer to Woodruff Sf Co., whose intervention was dismissed in January, 1851.

Notwithstanding this decision, Woodruff 8f Co., by virtue of their assignment from Creevy of the judgment, issued execution on it against T. and G. Forbes. Walker also issued execution against them, and they applied to deposit the money in court, subject to the controversy between Walker and Woodruff Co.

During the pendency of their rule to deposit the money in court, there being executions against them issued by both parties, T. and G. Forbes paid the amount of Creevy’s judgment into the hands of the sheriff, the proper place of payment for their discharge.

The parties again contended for it, and contested each others’ right by pleadings and evidence ; and the court again decided by judgment that it belonged to Walker, from which judgment Woodruff 8f Co. have appealed.

Independently of the exception, rei judicata, to this, their second claim for the same thing, the judgment against it is clearly correct. Walker seized the claim on the 23d of May, 1849, and made T. and G. Forbes garnishees, in the most formal manner. As far as we can discover, the act of the 20th of March, 1839, was strictly pursued. He issued execution on his judgment against Creevy, seized his rights in the hands of T■ and G. Forbes, propounded interrogatories to them, obtained their answers as garnishees, left the execution in the sheriff’s hands to hold the rights seized, and when the claim of Creevy against them was reduced to a judgment, took a rule upon them to pay it to him, and issued execution against them, not against Creevy, to enforce the payment.

Thus, he' did not, as contended, abandon his seizure ; but pursued it in the most formal manner.

It is urged, that.it was invalid, because Creevy was not notified of it.

We find no law rendering it necessary that notice should have been given of the seizure to Creevy. If the sheriff had been directed to sell the claim, it would have been necessary to have given notice to Creevy, that he might appoint an appraiser. But having seized an incorporeal right, the proper and legal mode of realizing it, was to cause it to be collected. The act of 1839 expressly directed the debt to be levied or collected by the sheriff, from the garnishees. It was transferred from Creevy to Walker, as to the garnishees, by the seizure; and no one could acquire rights upon it, to the prejudice of the seizure.

The supposed transfer of the debt by Creevy to Woodruff S¡- Co took place afterwards, on the 14th of June, 1850, and could produce no effect against the seizure on the 23d of May, 1850. The first attachment must necessarily have the effect to supersede those which are subsequent.

The judgment of the district court is therefore affirmed, with costs.