79 So. 217 | La. | 1918
This is a suit on a fire insurance policy for $4,000 on a residence that was totally destroyed by fire. The plaintiffs are the assured and á mortgage creditor, the latter claiming $1,500, secured by the New York standard mortgagee clause. They obtained judgment for the amount of the policy, with legal interest after 60 days from the date of the fire, and with $480 statutory damages and $400 attorney’s fees.
Of the several defenses made to the suit, only two are urged on appeal, viz.;
(1) That before and at the time of the fire, the property was under seizure by the sheriff, in the execution of a judgment against the assured, operating a change of possession, and thereby annulling the policy, according to its terms.
(2) That, in any event, there is no authority for imposing upon the defendant the penal
The plaintiffs’ reply to the main defense is that there was no actual seizure of the property, but only a fictitious or constructive seizure, which was null, not only because there was no notice of seizure, but because the judgment purporting to authorize the seizure was an absolute nullity, rendered without citation, on a debt of the husband of the assured.
The facts relating to the alleged seizure are as follows: The property alleged to have been seized to satisfy a judgment against the assured belonged to her separately, not to the marital community. Suit was filed against her and her husband for a grocery bill amounting to $182.40. The petition disclosed no cause of action whatever against the wife, the allegation being merely that the petitioner had sold goods and merchandise to the defendants at various times as shown by the itemized bill annexed to the petition. The itemized bill, covering a period of seven months, showed more than 700 small purchases of groceries, the largest single item being 80 cents. There was a small purchase on almost every day — not a skip of two consecutive days. The account showed plainly, therefore, that the groceries were bought for consumption, not for resale by a merchant. It was not alleged that Mrs. Whiteside was a public merchant; nor was there any allegation of fact that would make her liable for a bill of groceries sold to the husband and wife. In fact, it was not even alleged that the husband and wife were liable in solido, although the prayer of the petition was for a judgment against them in solido, and the judgment was rendered accordingly. There was no prayer nor order that the wife be authorized, either by her husband or by the judge, to defend the suit or stand in judgment. Two citations were issued, one addressed to the husband and the other to the wife; and both were served upon the husband in person, not even at the domicile or residence of the wife, as far as the return shows. As neither defendant answered or appeared in court, the plaintiff got judgment by default. A notice of judgment was served only upon the. husband, addressed to him alone.
Mrs. Whiteside’s property being situated in the parish of Jefferson, the sheriff undertook to levy a constructive seizure, according to the provisions of sections 8625 to 3629 of the Revised Statutes, for making seizures in the parishes of Orleans and Jefferson. In those parishes the sheriff is not required to take actual possession of property to make a valid seizure. The method of seizure is for the sheriff to serve a notice of seizure upon the owner of the property; cause a copy of the notice to be recorded in the office of the recorder of mortgages; enter in what is called the “Seizure Book,” in the sheriff’s office, a description of the property, making note of the day and hour of recording the notice of seizure in the mortgage office; and make a return on a copy of the notice of the service and date and hour of recording the notice. Section 8629, R. S., declares that the recording of the description of the property and notice of seizure shall be deemed and considered as the seizure and possession by the sheriff, and that it shall be unnecessary to appoint a keeper.
Of course, that section of the law means that the recording of the notice of seizure shall have that effect provided it has been preceded by the other formalities required, such as the service of a copy of the notice of seizure. In this case service of the notice of seizure addressed to Mr. and Mrs. Sidney Whiteside was made by delivering a copy to Mr. Whiteside alone — not even at the domicile or residence of his wife, as far as the record
The defendant here contends that service of the notice of seizure upon the husband gave constructive notice to the wife; and in support thereof the learned counsel cite articles 182 and 192 of the Code of Practice, referring to service of citation upon a married woman. Artj.de 1S2 declares that, if the defendants in a suit be husband and wife, it is sufficient to ■deliver one citation and one copy of the petition to the person representing the defendants ; and article 192 declares that, if the petition and citation be directed against a married woman not separate from bed and board from her husband, service may be made by delivering the citation and copy of the petition to either the husband or the wife.
Whatever may be said of the effect of an actual, but illegal, seizure, or of a valid, though only fictitious, seizure, of property insured, we find no authority nor reason for holding that a policy of insurance should be annulled by an illegal and fictitious seizure. It is sufficient to say in this case that there was neither an actual nor a valid seizure of the. property insured. The judgment appealed from in that respect is correct.
~The plaintiffs have prayed, in answer to the appeal, for damages for a frivolous appeal; but the ability and industry with which the appeal has been presented and prosecuted convince us that the learned counsel for the appellant were very much in earnest, and that the appeal was not taken merely to delay payment of the judgment.
The judgment appealed from is affirmed, at the cost of appellant.