Anticich v. Michalfevich

5 Pelt. 719

• Court: Louisiana Court of Appeal
• Decided: November 13, 1922
• Docket: NO. 8330
• Status: Published

Opinion

Dinlcelspiel; J.

_ In s suit between plaintiff and defendant, who v/ere .partners in tr‘-de prior to ths institution of the suit for the appointment of a. receiver and liquidation of its effi-irh, and when a written agreement was entered into die.-olving the oo-y rtn.-rshio in question ■ nl defendent agree-'ng to y-y pi- intiff the sum of One. Thousand Doll-rs, end they •debts were to collect outstanding/1 due them of some eight thou»cnd dollars, e-.ch one to do ths collecting of accounts^ in the course cf the lioig- ticn for the appointment of receiver; and subsequent thereto there w;s filed by plaintiff, proceedings preying for a writ cf attachment ag-inst ths property of the defendant, demanding the sum of One Thousand Dollars, tnd alleging: "Th! t the defendant fa h-e mortgaged, assigned or disposed of or is bout to mort-g¡ ge, assign or dispose of his property rights or credits or seme p'-rt thereof, with in'rent tc isfr ud his creditors or upfair preference to some of them, ‘-nd th- t he has ponvertea conv.rt or is about to/ this property into money or evidences of it, with the in bent to ;.l>-cs it beyond the re; oh of his creditors, end th=t writs of astachmsnt ere necessary to protect petition r in ths premises."

The affidavit necessary for the iesuanoe of the writ ■together with the bond r;.paired by lew h.-ving been given, the o;urt ordered Chat the writ of attachment issue, and th-'t plains Iff1s property or a p rt thereof be ceizsd by the Civil Sheriff end held by him ewaiting the furth-.-r cations of the court.

Subsequently o motion wss made by the attorney of the defendant in this suit, alleging th-.t the writ of attachment eg--inst the defendant end ths affidavit were false end untrue. Alleging further that suit h-d sire- dy been brought by Meintiff ag'in3,t defendant for the recovery of the amount due, if any, on the same contract therein sued, upon, v/hioh is tis Pendens, and now pending before thi3 court for decision; alleging further that-in the suit now'pending.before this court between the seme parties praying for the liquidation of the firm and asking that a reo elver be appointed, to thke charge of the business end assets, that the receiver alone íralú w'-s authorized to institute the suit. Alleging further th»t a portion of the property herein seized consisting of shucking shed , Shell pile, boxes and oarriers, and the building, ell located on the Vnk of the o'-nal bilonging to the Louisiana ’uvigation end Company was 30ld by mover in good faith on the 18th day of April 1913, to one John G&oe, who immediately took possession of same; therefore the true owner and in possession. Finally praying that the writ of fcstaohnent issued in this matter he dissolved, reserving his rights for damages.

The only question before this Court is on the rale to dissolve the attachment, and we ere not concerned with the merits of the dase at all.

Plaintiff in our opinion being the acknowledged creditor of the defendant in the sum of One thousand dollars, under a written agreement undisputed in this esse, h.ad a perfect legal right to collect this sum, but whether or not he had the right to the writ of atteohment in order to collect this money is the only matter we e.re now concerned with. It would serve no useful purpose to quote pt length any portion of the . evidence found in this record, most of it goes into the merits of this controversy, to which at this time and under this rule We have no right to enter.

Aa in all eases of this character the evidence is more or less contradictory, but an attachment is a harsh proceeding and one where plaintiff in the attachment suit mUst make the facts clear, showing his right thereto and if he falls in this, the attachment *a*t;: be dissolved.

Sha authorities are numerous and. are■summarized in the 1st La. Digest Annotated, page 702, commecning with Lacy vs. Kenly 3rd La. 16.

1st. National Bank of Natchez vs. Moss, 41 327.

If. has S3.SO been held:

"The intent to defraud is the essential ingredient ■' to .ataiaitain a writ of-Attachment."

Abney vs. Whitted, 28 La. 818.

Auge vs. Variod, 31 La. 865.

Steinhardt vs. Lemann 41 La. 835,

"An ftttaohment based upon 0. P. Noa. 4 and 5, Artiole ¿40, .oahnot be maintained without satisfactory proof of some aot Showing the fraudulent intent of defendant to plaoe property- beyond the reaoh of his creditors or give an unfair preference to some of them. The dally selling of his goods in the .usual ooiirse of his business by a paint dealer is not suoh an aot,. although he be financially embarrased,"

Lehman vs. McFarland, 35 Ann, 636.

Standard Cotton Seed Oil Co. vs. Matheson, 48 Ann. 1358.

Proof that the debtor is offering his property for sale in order to realize funds for the payment of all his debts snd liabilities, aooompsaled by a declaration of suoh purpose to the attaching creditor, himself, will not justify an attachment.

Poitevant Lumber Co. vs. Standard Planing Mills, 49 Ann. 79,

When the proof does not disclose an intention on the part of the defendant either to defraud their creditors or to give an unfair preference to some of them, the Judge of the District Court is authorized tr dissolve the attachment.

Palmer vs. Hightower, 47 Ann. 17.

We ere convinced from the testimony that ttye áefendfc-nt did not sell all of his property, but that he had oth-r property, more than euffioient to satisfy the olaima of plaintiff and all his other creditors.

.for the reasons assigned the judgment of the Court aequo is dissolving the writ of attachment in this case, is maintained, and affirmed, and it is now ordered that the rule decided dissolving the writ was properly«stáfifefc&ffi&ás oosts of this rule to be paid by the plaintiff and appellant,

-Judgment affirmsd-