Econo-Car International, Inc. v. Zimmermann

201 So. 2d 188, 1967 La. App. LEXIS 5018
CourtLouisiana Court of Appeal
DecidedJuly 5, 1967
DocketNo. 2705
StatusPublished
Cited by2 cases

This text of 201 So. 2d 188 (Econo-Car International, Inc. v. Zimmermann) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Econo-Car International, Inc. v. Zimmermann, 201 So. 2d 188, 1967 La. App. LEXIS 5018 (La. Ct. App. 1967).

Opinion

CHASEZ, Judge.

This is an appeal from a judgment dissolving writs of sequestration and attachment, which writs had been issued at the instance of the plaintiff herein, Econo-Car International, Inc. The facts involved are set forth in plaintiff-appellant’s brief, which was stipulated as correct for purposes of this appeal by the defendants in their brief. We quote at length:

“Plaintiff-Appellant, Econo-Car International, Inc., by agreement dated April 3, 1963, granted to one of the defendants herein, Mrs. Grace Zimmermann, an exclusive automobile rental franchise. * * * Although defendant Kenneth J. Zimmermann, husband of Mrs. Grace Zimmermann, was not a party to the franchise agreement, plaintiff has averred that he acquiesced and assisted his wife in the operation of the business, ratified the obligations which she undertook therein and accepted it as a community obligation.
“The Plaintiff further averred that subsequent to the execution of the agreement, defendants formed a closed corporation called Three Ninety-Nine Econo-car of New Orleans, Inc. to which they assigned all of their right, title and interest in and to the franchise agreement.
“For the above reasons the suit herein was instituted against Mrs. Zimmermann, Kenneth J. Zimmermann, and Three Ninety-Nine Econocar of New Orleans, Inc.
“In order to provide its franchise holders with automobiles, plaintiff, as a stand[190]*190ard business procedure, would lease new model automobiles from Chrysler Corporation, and would in turn sublease the automobiles to its franchise holders.
“This standard business practice was carried forth between the parties to this suit and from the period November 19, 1964 through March 26, 1965, plaintiff delivered and defendants accepted thirty-four (34) 1965 model automobiles, * *.
“The agreed rental for the sublease of the vehicles is set forth in Paragraph 8 of plaintiff’s petition and represents a total monthly rental of Four Thousand Five Hundred Seventy-Six and 56/100 ($4,576.56) Dollars.
“At the time suit herein was instituted, plaintiff averred that defendants breached their lease obligations and franchise agreement by defaulting in payment of the agreed lease rentals, by failing to return the vehicles despite demand and that as of the date of filing of suit, defendants were in default on lease rentals in the amount of Eighteen Thousand and no/100 ($18,000.00) Dollars. (Paragraph 9, plaintiff’s petition)
“On these facts, plaintiff averred that it had a lessor’s privilege on the vehicles, that the vehicles were being depreciated considerably from day to day, and that its privilege would be lost unless a writ of sequestration issued. Accordingly, a writ of sequestration did issue, without bond.
“Additionally, plaintiff averred that defendants were about to dispose of their property, or some part thereof, with the intent to defraud plaintiff, and prayed for and obtained a writ of attachment against certain checking accounts which defendants had with the National Bank of Commerce. Under these allegations, a writ of attachment issued with bond in the amount of Eighteen Thousand and no/100 ($18,000.00) Dollars.
“Under the writ of sequestration based on the lessor’s privilege, the Civil Sheriff for the Parish of Orleans proceeded to seize the subject automobiles. Between the dates of August 23, 1965 and September 10, 1965 the Sheriff succeeded in seizing thirty-one (31) of the automobiles. Following the lapse of ten (10) days from the respective dates of seizures of the automobiles, plaintiff, * * * acquired possession of the vehicles by bonding the sequestration.
“Under the writ of attachment, the Civil Sheriff for the Parish of Orleans seized a checking account in the name of Kenneth J. or Grace H. Zimmermann with a balance of Twenty-Six and 55/100 ($26.55) Dollars, another checking account in the name of Three Ninety-Nine Econocar of New Orleans, Inc. with a balance of Seven Hundred Sixty-One and 35/100 ($761.35) Dollars, and a savings account in the name of Mrs. Grace Zim-mermann with the balance of Two and 82/100 ($2.82) Dollars, all of the said accounts being with the National Bank of Commerce in New Orleans.
“On June 24, 1966, some ten months following the date of issuance of the writ of sequestration and attachment, defendants moved for dissolution of the writ of sequestration and attachment.
“Following the hearing of the motion, the Lower Court recalled and dissolved both writs, and plaintiff perfected this appeal from the latter judgment.”

We will first inquire into the judgment dated July 28, 1966 as regards the writ of sequestration. The grounds for the issuance of a writ of sequestration are set forth in Article 3571 of the Louisiana Code of Civil Procedure:

“When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power ■of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from [191]*191the parish, during the pendency of the action.”

In addition, C.C.P. Article 3575 provides that “A writ of sequestration to enforce a lessor’s privilege shall issue without the furnishing of security”, as was done in this case. The writ was issued pursuant to the following allegations:

“10.
“Plaintiff has a lessor’s privilege on the vehicles.
“11.
“Petitioner avers that the automobiles are being depreciated considerably from day to day, and has good reason to believe that defendants will remove the vehicles on which petitioner has a lessor’s privilege and that your petitioner will be deprived of his privilege unless a writ of sequestration issues herein.”

And the plaintiff prayed for the issuance of the writ in accordance with C.C.P. Article 3575, quoted above, and C.C.P. Article 3572, which reads:

“A sequestration based upon a lessor’s privilege may be obtained before the rent is due, if the lessor has good reason to believe that the lessee will remove the property subject to the lessor’s privilege. If the rent is paid when it becomes due, the costs shall be paid by the plaintiff.”

The point argued below and here is the question: Does the sublessor of movables have a privilege over the movables which are the object of the lease for the rent due on the lease of the movables? The question is res nova, and the Court below decided that no such privilege existed. In this conclusion we entirely agree. The articles of the Civil Code which grant a privilege to the lessor for rent due are:

“Art. 3217. The debts which are privileged on certain movables, are the following:
‡ ‡ ‡ sjc ije
3. The rents of immovables and the wages of laborers employed in working the same, on the crops of the year, and on the furniture, which is found in the house let, or on the farm, and on every thing which serves to the working of the farm.”
“Art. 3218.

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Bluebook (online)
201 So. 2d 188, 1967 La. App. LEXIS 5018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/econo-car-international-inc-v-zimmermann-lactapp-1967.