Flash, Lewis & Co. v. L. Schwabacker & Co.

32 La. Ann. 356

• Court: Supreme Court of Louisiana
• Decided: March 15, 1880
• Docket: No. 7224
• Status: Published

Opinions

The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sued for the recovery of $2,473.80 and took out process of attachment, under which a package of gold coin, in amount $235, was seized. A curator was appointed to the defendants who excepted to the jurisdiction, which was overruled, and the general issue was then pleaded. Levy intervened claiming the owner-ship of the gold ; the plaintiffs had judgment against all parties. The Intervenor appealed. The defendants did not appeal.

The defendants’ curator has not filed an answer to the appeal, nor prayed the amendment of the judgment. In his brief he asks for its reversal. He cannot be-heard to do this. He is appellee. If he desired the reversal of the judgment he should have appealed from it.

The intervenor is not interested in the judgment on the principal demand, and we are not therefore to consider it. The right to the gold •coin is the only question before us, and our jurisdiction of the principal demand carries with it jurisdiction of this smaller sum. Colt v. O’Callaghan, 2 Ann. 189 and cases there cited.

The following bill of lading or receipt was given by the captain of the vessel for the coin ;

Beceived Buatan Nov. 24,1875, from Mr. g. Bernstein one package ■said to contain two hundred and thirty-five dollars in gold, to be delivered to Mr. A. Levy care Hoffman, Marks, & Co. New Orleans. Wm. W. Byan Capt. Schooner Anita.

Levy had received this bill of lading before the attachment was levied, and urges that hence the property of the consignment was vested in him. The plaintiffs concede “ there is but one question before the court, and that is, to whom did the gold seized by the plaintiffs belong. If to the defendants, then the judgment of the lower court must 'be maintained ; if to the intervenor, then'it must be reversed.”

The object of a great part of the testimony was to prove that Levy was but an agent of the defendants, and that the shipment was to them, =and the property of the gold was in them continuously. The package lhad written on it, “ can be delivered to Mr. Bideau,” and he was a clerk ■of the firm in New Orleans. The testimony is too voluminous to be recited. We have drawn from it the conclusion that on the receipt by Levy of the bill of lading the property of the gold vested in him, and .neither the defendants nor their creditors could seize or attach it to his prejudice.

It is indisputable that creditors cannot attach the property of their .debtor after he has lost all control over it. The package of gold had been consigned to Levy, and the bill of lading was in his hands when-the creditors of the consignors attached it. Whether the consignment, was to pay a debt due Levy or some third party, it is equally true that the consignors could not have changed the destination of the gold after the bill of lading had reached the consignee. If a consignor direct his goods to be sold for the payment of one of his creditors, and the consignee promises to do so, the goods are not liable thereafter to be attached for another debt of the consignor. Armor v. Cockburn, 4 Mart. N. S. 667. This is a stronger case. It was money sent to pay certain debts of the consignors.

This principle has received the assent of this court in numerous: decisions which may be consulted -to shew the different circumstances in which it has been applied. Babcock v. Malbie, 7 Mart. N. S. 137. Hepp v. Glover, 15 La. 461. Bank v. Morton, 12 Rob. 409. Oliver v. Lake, 3. Annual, 78. Hill v. Simpson, 8 Annual, 45, and cases there cited.

It is therefore ordered adjudged and decreed that the judgment of the lower court against the intervenor A. Levy is avoided and reversed,, and that he now have judgment against the plaintiffs upon his demand and for the costs of his intervention in the lower court and the costs of' appeal.

Marr, J.

Under the writ of attachment issued in this case, a>, package of gold coin, containing $235, and another package containing-three drafts, each for $400, were seized. Intervenor claimed the ownership of both packages ; and he alleged in his petition that the package-containing the’drafts exceeded $500 in value. He appealed from the judgment rejecting his intervention; and gave bond in the sum of' $3000.

In the oral argument in this court it was stated by plaintiffs’ counsel, in good faith, we have no doubt, that the only matter in dispute was-the package of gold coin. This was not denied, at the time; and the-impression of every member of the court was that, by some agreement-between the parties the title to the drafts had been eliminated from the-controversy; and that it was an admitted fact, disclosed by the record,, that the dispute was narrowed down to the ownership of the gold coin.. Our original decree, and the order dismissing the appeal, proceeded’ upon this hypothesis, which we did not consider it necessary to verify by searching through the pages of the three large transcripts containing the history of this litigation.

Counsel for intervenor has called our attention to the facts that the judgment rejecting the intervention necessarily passed upon the title to the drafts as well as upon the title to the coin ; that the bond, of appeal presupposes a value in controversy far beyond that of the coin; and that the title to these drafts is in dispute on appeal.

After a final decree on the merits, and the granting of a rehearing-a motion to dismiss an appeal could not be entertained, as such. But every court is compelled, ex officio, to take notice of its want of jurisdic-tion, ratione materice, at any stage of the cause, and whenever the-suggestion is made; and while, after the granting of a rehearing, motion to dismiss could not be entertained, the court would be compelled, of its. own motion, to dismiss the cause, if it had not jurisdiction. We dismissed the appeal, in this ease, as of our own motion, upon the fact assumed in the original opinion, that the amount in dispute was only $235.

By a rule of this court a second rehearing is not granted ; but all' the orders and decrees of this court are subject to the control of the court until they have become irrevocable by the lapse of six judicial days, or by the issuing of the mandate to the court of first instance, where this delay is not required. What the court may do, on the application of parties litigant, and what it may do of its own motion, in order to correct manifest error in its own proceedings, are things wholly different. As we dismissed the appeal in this case of our own motion,, without regard to the merits, for supposed want of jurisdiction, it is. our province now, of our own motion, to revoke, vacate, and annul the ■ order of dismissal, upon the suggestion that we have proceeded upon-a misapprehension of the facts upon which the jurisdiction depends, in. order that we may ascertain from the record what the amount in dispute actually was at the time the appeal was taken ; and may deal with the case, on the rehearing, as the facts may require.

It is therefore ordered that the opinion and order dismissing the-appeal for want of jurisdiction be revoked, vacated, and annulled ; and; that this cause be re-instated, and restored to the position which it-occupied by the submission on the rehearing, as if the opinion and5 order of dismissal now revoked, vacated, and annulled had not been, rendered.