Woodworth v. Lemmerman

9 La. Ann. 524 | La. | 1854

Spojtord, J.

The plaintiff appeals from a judgment discharging a rule which he had taken upon three successive Sheriffs of the Parish of Orleans and upon one Eugenie Joublanc, to show cause why he should not be paid the amount of a certain judgment he had obtained against Lemmerman, by preference out of the rents and proceeds of the sale of the property seized in the suit of Lemmerman, use of Eugenie Joublanc v. H. B. Moëller.

The record presents a melancholy waste of attachment suits, insolvent proceedings, orders of seizure and sale, injunctions and rules, through all of which the plaintiff has been seeking his money in vain.

We regret that we cannot relieve him. But he has not placed himself in a position to complain of either of the defendants in the rule.

He has no personal judgment against his debtor, Lemmerman. He sued him as an absentee, and only brought him into court constructively by a pretended attachment of his property and service of citation, upon a curator ad hoc. His judgment, if of any validity, is merely a judgment in rem, and could not be executed to the prej udice of third persons upon any other property than the specific property attached.

But in this case nothing was attached. The return of the deputy Sheriff is in these words: “ Seized in the hands of Prosper Le Blanc., clerk of the Eifth District Court of New Orleans, by leaving a written notice of seizure at his office in the hands of J. S. Bacon, his deputy, (he being absent at the time,) informing him that I seize in his hands all the goods, chattels, &c., &c., which he might have in his possession, or under his control, belonging to the defendants, and especially all the right, title and interest, of said defendant, in and to a certain suit entitled 0. Lemmerman, for the use of Eugenie Joublanc, v. Martin H. Moëller, &c., and also the right, title and interest of said G. Lem-merman, in and to the notes filed in, said suit, from which seizure nothing came into my hands; and on the 26th, &c., I seized in the hands of Martin H. Mo-eller, by handing him in person a written notice similar to the one above described, in which I informed him that I seized in his hands especially, all the right, title, and interest of 0. Lemmerman, in the suit above mentioned, as also the notes filed in said suit, from which seizure nothing came into my hands.” No one was cited in garnishment.

An attachment so purely imaginary as this, can confer no real rights. The Code of Practice makes it the imperative duty of the Sheriff in serving a writ of attachment “ to seise and detain the property of the debtor, whether it consist of goods, effects, rights, credits, or right of aetions. C. P. Art. 256. He must take charge and keep possession of all the goods and effects which he may have attached, with the exception of such sums as may be due by the garnishee, and he must make, in the presence of two witnesses, an exact and minute inventory of the same, to be returned with all his doings to the court. C. P. 257.

Written evidences of debt, like all corporeal movables, must be reduced to manual possession by the Sheriff, to constitute a valid seizure of them. If they cannot be thus laid hold of because they are in the hands of a third person who cannot or will not deliver them up, the only mode of procedure is to cite such person as a garnishee. A debt not evidenced by writing, is attached by making the debtor a garnishee. Without an actual seizure, or a citation in garnishment, there can be no attachment. Service of a mere notice on the clerk, who is the legal custodian of the records of his court, or even on the debtor against whom a suit is ponding, is no more effective than publication in a newspaper would be. It is not a mode of attaching property pointed out by law. See Stanborough v. McCall, 8 An. 10. Goodrich v. Pattingall, 7 An. 665. Price v. Emerson, 7 An. 237. Hanna v. Bry, 5 An. 666, Stockton v. Downey, 6 An. 584, and the cases there cited.

We conclude, that the plaintiff is without interest to inquire whether Eugenie Joublanc has forfeited her right of pledge in the Moeller notes ; whether she has diligently prosecuted her order of seizure and sale; or whether the Sheriffs have squandered the rents.

In coming to this conclusion, we have not overlooked the fact, that two of the Moeller notes appear, at. one time, to have been actually attached at the suit of Woodworth v. Lemmerman. But that attachment was sued out from another tribunal, in a totally different suit, of which we get only a glimpse in the record before us. The plaintiff bases his claim in the rule primarily upon an attachment and judgment obtained in the Fifth District Court. Of the validity of that attachment alone, are we called upon to speak.

There is no error in the judgment complained of. It is therefore affirmed with costs.