Armstrong v. Ellerslie Planting Co.

83 So. 830, 146 La. 559, 1920 La. LEXIS 1766

• Court: Supreme Court of Louisiana
• Decided: February 2, 1920
• Docket: No. 22398
• Status: Published

Opinions

DAWKINS, J.

Having previously obtained judgment against the defendant, Ellerslie Planting Company, Limited, for several thousand dollars, plaintiff issued a.writ of fieri facias thereon, accompanied with interrogatories in garnishment, and had them served upon Charles F. Borah as garnishee.. The garnishee answered on May 6, 1916, denying that he held any funds or property belonging to the defendant, but stated that he held in his possession two notes of the Bayou Salle Planting & Drainage Company for $36,-666.66 each, which had been given by the maker as part of the purchase price of certain plantation property bought of the defendant company; that the said notes were the property of the heirs of Mrs. Fannie M. Todd, deceased, and were held by him in pledge to secure a personal indebtedness of some $2,000, and under an agreement with the law firm, of Borah, Himel, Bloch & Bo-rah, of which he was a member, by which it was to endeavor to collect said notes on a contingent fee of 35 per cent, of whatever might be realized thereon. On July 12, 1916, notice of the filing of the answers to the interrogatories in garnishment was served on the plaintiff, and on July 27th following, his counsel prepared and forwarded to the clerk of court at Franklin, Ea., where the proceedings were pending, a motion for a rule to traverse those answers. This motion was actually received by the clerk, according to an admission in the record, on July 28th, but not indorsed as filed until August 9, 1916, more than 20 days subsequent to the service of notice of the filing of the answers.

Thereupon the garnishee filed a plea of prescription of 20 days, and claiming that the seizure had been ipso facto released. This plea was overruled, the issues were tried on the answers and rule to traverse, and resulted in a judgment in favor of plaintiff, making the rule absolute, and ordering that the garnishee deliver the notes to the sheriff, as the property of Ellerslie Planting Co., limited, to be sold in execution under the writ.

The garnishee prosecutes this appeal.

Opinion.

[1] It is contended by the garnishee that the failure of the clerk to indorse the filing mark upon the motion for the rule to traverse, before the expiration of 20 days from the notice of the filing of the answers, had the effect of releasing the seizure, according to Act No. 73 of 1884. We quote from the statute relied on as follows:

“That hereafter in all cases in which a party has been garnisheed, as soon as the answer of the garnishee has been filed, the clerk of the court shall give the plaintiff, or seizing creditor, notice in writing of the answers of the garnishee, which notice shall be served on the plaintiff, or seizing creditor, in the same manner that citations are served in ordinary suits, and in all eases where the plaintiff, or seizing creditor, desires to disprove or traverse the answers propounded to a garnishee under a writ of attachment or of fieri facias, he shall, within twenty clear days after service of the notice of the filing of the answer by the garnishee has been made upon him as aforesaid, file a rule in court or institute other proceedings against the garnishee for the purpose aforesaid, and upon the failure of the plaintiff or seizing creditor to file a rule or institute other proceedings as aforesaid, any property, rights or credits in the hands of the garnishee shall, by the mere fact of said failure, be considered as released from seizure under said writ of attachment or of fieri facias, and no proceedings of any nature in said suit shall thereafter be allowed to subject such property, rights or credits in any manner to said writs, except after a new seizure and the service of new interrogations. Provided, that nothing in this act shall be so construed so as to deprive the plaintiff or the seizing creditor of the right, at any time, to hold the garnishee liable under the answers made by him to the interrogatories.”

Plaintiff, on the other hand, takes the position that he had done all that could be required of him under this statute, when he placed the rule to traverse timely in the hands of the clerk, and fhat' he should not be held to the necessity either personally, or through counsel, of following the matter up to see that the clerk performs his plain ministerial duty.

No explanation is furnished by the record of why the clerk held this pleading from the 28th of July to the 9th of August, without indorsing the filing mark thereon. It would also seem that if counsel for plaintiff had filed a motion in the court below, requesting that the rule be filed nunc pro tunc, as of July 28th, the date on which it came into the clerk’s hands, on the showing made by this record, the lower judge would have been justified in so disposing of the matter. State v. Daniels, 49 La. Ann. 954, 22 South. 415. .If this could have been done, it was because the plaintiff had reasonably complied with the statute, in so far as he personally or his counsel were called upon to act. It could hardly be contended that, if a litigant presented a pleading such as this, which he was required to file within a given delay, in ample time and accompanied with all of the requisites under the law, and the clerk should arbitrarily decline to indorse the filing mark thereon, thereby compelling the party to apply to the judge for a mandamus, and before such application could be passed upon the delays should expire, such litigant would be thereby deprived of the benefit of having his pleading filed within such delay. But it seems to us that the position of the garnishee in this case would lead logically to such unreasonable conclusion; and, if we were to hold that this were the law, it would be to permit the clerk, through his failure or refusal to perform his plain legal duty, to deprive litigants of substantial rights' accorded them under the law. Such could not have been the intention of the framers of this statute. Its purpose was to require those seeking to bring third persons into litigation by the speedy process of garnislrment, to determine promptly whether they were willing to abide the answers of the garnishee, and, if not, to be seasonably advised of such conclusion in a matter in which otherwise they have no interest. In this case, if the garnishee had applied to the clerk at any time after July 28th, he would have found that the plaintiff had questioned his answers. Again, if the garnishee’s contention be correct, even if .the clerk had timely indorsed the file mark upon the rule, and had failed to issue the notice (since a rule implies a notice of some kind), or if the sheriff had failed to serve it within the 20 days, plaintiff would have been no better off.

We deem it unnecessary to engage in any extended discussion of the large number of authorities cited on either side, but suffice it to say that under the circumstances of this case we think that plaintiff has reasonably complied with the law, and shall treat the rule as filed on July 28th, the date it actually came into the clerk’s hands for that jjur-pose.