Lemann v. Truxillo

32 La. Ann. 65

• Court: Supreme Court of Louisiana
• Decided: January 15, 1880
• Docket: No. 7505
• Status: Published

Opinions

The opinion of the court on the original hearing was delivered by Marr, J., and on the rehearing by Spencer, J.

Marr, J.

Elorentin A. Truxillo died, at his domicile, in the parish of Assumption, on the 15th October, 1877, leaving a widow and one child, a minor. The widow caused an inventory to be taken, the property consisting entirely of movables, such as household furniture, stock, implements and utensils, and the crop of cane then growing on the plantation which the deceased had occupied and cultivated as lessee.. She also qualified as natural tutrix of the minor; and she caused the crop to be gathered and manufactured into sugar and molasses, part of which was shipped to New Orleans for sale.

The creditors of the succession were not willing that she should continue to administer without giving security; and they required an administrator to be appointed. By public notarial act of 4th January, she formally renounced the community which had existed between her and the deceased; and this act was recorded on the 7th January, 1878.

On the 5th of January she prayed the parish court to appoint her administratrix, on her giving the requisite bond. Her application was opposed by Joachim Ruiz, on the ground that she was incapable of administering, in the existing condition of her mind, caused by the harassment to which she had lately been subjected by the creditors, and he claimed the right to administer as a creditor. She waived her right of preference as natural tutrix, and withdrew her application in favor of Ruiz. He was appointed, gave bond, qualified, and obtained letters on the 16th January ; and he entered immediately on his duties, and provoked the sale of the property of the succession to pay the debts, which Widow Truxillo had not attempted to do.

On the 29th December, 1877, Bernard Lemann, of the parish of Ascension, brought this suit in the Sixth District Court for the parish of Orleans, against Widow Truxillo as survivor in community, and as natural tutrix of the minor, to recover $600, balance alleged to be due for advances and supplies furnished to the deceased, and after his death to his widow, to enable them to make and gather the crop, for which he claimed a privilege. On proper affidavit he obtained an order of sequestration, and under the writ the sheriff seized in the hands of Lanaux & Sons and Lehman, Abraham & Co. $1281 39, proceeds of sugar and molasses.

On the 5th of January, a week after this seizure, plaintiff filed a supplemental petition, alleging that the balance due him was $890 78, for which he prayed for judgment with privilege, instead of the $600 claimed in the original petition; and on the 14th January he filed another supplemental petition, claiming the additional sum of $121 39, with like privilege. Neither of these petitions was sworn to; and there was no new order on them, no new writ, no new seizure.

Citations were issued on these three petitions, and they were served on Widow Truxillo, in person, at her domicile in Assumption, by the sheriff of that parish, on the 18th January, 1878, two weeks after she had renounced the community, two days after her administration as natural tutrix had terminated by the appointment of Ruiz.

When this suit was brought plaintiff’s attorney handed the affidavit, and a bond filled up for $1500, to a deputy clerk of the court, and requested him when he presented the papers to the judge for the •order of sequestration to inform him that the property to be seized was worth about $1000, and that the bond was for a sufficient amount. The order was written by this deputy, and it was afterward signed by the judge,as follows : "Let a writ of sequestration issue herein as prayed for, upon petitioner furnishing bond and security conditioned according to law.” A few days after the seizure was made plaintiff’s attorney discovered that the amount of the bond was not stated in the order ; and at his suggestion, he and the deputy considering this a mere clerical error, the deputy inserted the words [in the sum of fifteen hundred dollars] between the words “security” and “conditioned” in the order.

On the 17th January, the attorney for defendant took a rule on plaintiff, in which the facts just stated are set forth, to show cause why the sequestration should not be dissolved and the suit dismissed, on the grounds that there had been no such bond given, and no such order for sequestration, as the law requires ; and that, as defendant resided in the parish of Assumption, the jurisdiction of the court depended upon the existence and maintenance of the sequestration.

On the 17th January defendant filed exceptions to the jurisdiction of the court. She gave the history of her connection with the succession, except that she stated that her application to be appointed administra-trix was pending. It had been decided the day before ; but, probably, there had not been time for her to communicate that fact to her attorney in New Orleans. She plead that the property of a succession, in course of administration, cannot be sequestered by a creditor; that the supplemental petitions had not been sworn to; that the additional amounts claimed on them were not covered by the sequestration ; and that the debt sued for was not privileged.

The rule to dissolve was tried and submitted ; and on the 5th February it was discharged. “ And, further, it is ordered by the court that all words in the mandate of sequestration after the words ‘ issue herein as prayed for’ be stricken out, excepting the date and signature.”

On the same day, on motion of plaintiff’s attorney, “ It was ordered that nunc pro tunc, the amount of said bond be stated to be for fifteen hundred dollars.”

Shortly after the exceptions were fixed ; and after having been under •advisement for more than two months, they were overruled on the 14th May.

In the meantime, on the 9th April, the plaintiff obtained an order of court permitting him to bond the property sequestered; and the money, $1281 39, was delivered to him by the sheriff, on his giving-bond for $1500.

On the 15th May, the day after her exceptions had been overruled, Widow Truxillo, reserving the benefit of her pleas of domicile and want of jurisdiction, answered by general denial. She also plead that she was without interest in the property sequestered; that she had renounced the community; and that her administration as natural tutrix had terminated by the judgment of the parish court of Assumption, appointing an administrator.

On the 25th May, Joachim Ruiz, the administrator, filed his petition-of intervention, in which, after stating his appointment, and the facts material to his right, he alleged that he intervened, not for the purpose of giving the court jurisdiction over him, but solely for the purpose of obtaining possession of the funds in the hands of the court, in order that he might administer the same under the orders of the only court having jurisdiction, the probate court of Assumption.

He also alleged that he “ declines any controversy with plaintiff in this forum as to his pretended privileged claim upon the proceeds of the sugar and molasses; ” and he prayed that the sequestration be 'dissolved, and that he, in his capacity as administrator, be declared the-owner of these proceeds, and be put in possession of the same.

Widow Truxillo answered this intervention by admitting the right oi Ruiz; and she joined in his prayer. Plaintiff excepted that inter-venor could not contest his right to sue in the manner and in the court he resorted to; that the funds sequestered having been, on the 9th April,, released to him on bond, they were no longer in court, and the intervention could not be allowed; and that as intervenor declined to litigate with him, and only claimed the possession of property no longer in court, his demand should be dismissed. Without waiving his exceptions, he plead the general denial.

By judgment of 10th February, 1879, the exceptions were maintained, and the intervention of Ruiz was dismissed.

On the 6th March, on motion,of plaintiff’s attorney, and on suggesting that defendant had, in her answer, declared that she had no-interest in the case, and had thereby put herself out of court, it was ordered by the court that plaintiff be allowed to make proof of his. claim, and to submit the case for adjudication. Accordingly, on that day, on the testimony of plaintiff alone, final judgment was rendered in his favor “ against defendant, Widow F. A. Truxillo, as widow in community and natural tutrix,” for the sum of $1012 17, * * *

with privilege on the property sequestered, the judgment to be operative only against the property, up to its value, “and not binding for any excess over the value oí said property, in personam against defendant.”

Widow Truxillo and Ruiz appealed ; and their appeal brings up for review the judgment dismissing the intervention of Ruiz, apd the final judgment.

We premise that, if the court had acquired jurisdiction by the original petition and the sequestration, it would have been only to the extent of the amount claimed in that petition and sworn to. The court was without jurisdiction touching any demand against Widow Truxillo-personally, because of her domicile in Assumption ; and it could have acquired jurisdiction with respect to the property only by the seizure of that property. The supplemental petitions set up the new and important fact that some $400 more were due plaintiff than the amount claimed in the original petition. These petitions should, therefore, have been sworn to ; and new orders and new writs granted, and new seizures made under them. No such thing having been done, the demands set up in those supplemental petitions, in excess of the original demand, should have been dismissed for want of jurisdiction.

The final judgment is manifestly a nullity. The court held that defendant had put herself out of court; and yet a judgment was rendered against her with privilege on the property. If a defendant could put himself out of court, he would thereby put the case out of court, so that no judgment could be rendered against him. It is only in a proceeding purely in rem that .a judgment can be rendered with respect to property otherwise than contradictorily with some person either in possession, or claiming title or possession. This is not a proceeding purely in rem.

Moreover, Widow Truxillo was not capable of standing in judgment with respect to this property, at any time after the 16th January, 1878. She administered temporarily as tutrix; and if it be conceded that, as widow in community and natural tutrix, she was capable of standing in judgment on the 29th of December, 1877, when the suit was brought, she ceased to have any right as widow in,community by her renunciation of 4th January, and she ceased to have any power to administer, as natural tutrix, on the 16th January, when Ruiz was appointed and qualified as administrator.

The court erred in dismissing the intervention of Ruiz. It has been decided that where property has been released on bond, it is no longer in castodiam legis; that the bond represents the property only as between those who were parties to the suit at the date of the bond ; and that no subsequent intervention could be allowed. All the decisions to this effect, prior to that in Burbank vs. Taylor, 23 An. 751, were in cases of attachment. See Dorr vs. Kershaw, 18 La. 57 ; Beal vs. Alexander, 1 ; Same vs. Same, 7 Rob. 349 ; McRae vs. Austin, 9 An. 360 ; Wright vs. White, 14 An. 583 ; White vs. Hawkins, 16 An. 25.

The release-bond in attachments differs widely from the release-bond in sequestration. In the attachment the plaintiff has no right to bond; and the obligation of the defendant who exercises that right is that he will pay and satisfy such judgment, up to the value of the property attached, as may be rendered against him in the suit. On giving this bond the attachment is dissolved; and the defendant resumes the possession of his property, with all the rights, power, and control touching it which he had before the attachment. R. C. P. Art. 259.

In cases of sequestration the defendant has the exclusive right to bond, for ten days. On his failure to avail himself of this right, the plaintiff may have the property delivered to him on bond. In either case the condition of the bond is that the party thus obtaining possession, if the property be movable, will not send it out of the jurisdiction of the court; that he will not make an improper use of it; and that he will faithfully present it after definitive judgment, in case he should be decreed to restore the same to the adverse party. R. C. P. Arts. 279, 280.

The object of the attachment is to enforce the payment of a debt, without any pre-existing right to the property attached ; the object of the sequestration is to enforce some pre-existing right to the property, whether the plaintiff claim the possession, or the ownership, or some lien or privilege. These differences would justify the conclusion that the release on bond of property attached takes the property out of the custody of the law, and substitutes, for the purposes of the suit, the bond with security; while, by its very terms, the release-bond in a sequestration keeps the property under the control of the court, in order that the decree, in reference to it, may be enforced against the property itself.

Nevertheless, in Burbank vs. Taylor, 23 An. 751, Carroll vs. Bride-well, 27 An. 239, and Phifer vs. Maxwell, 28 An. 862, the previous decisions in eases of attachment were applied to cases of sequestration; and it was decided that after the release on bond of the property sequestered, neither one claiming to be the owner, nor a creditor asserting a privilege, could be allowed to intervene. If this be true, as a general rule, it cannot be true in a case in which the original defendant is without interest, and without capacity to stand in judgment in the suit; and the person seeking to intervene is the only one with whom the plaintiff could litigate his demand.

After the 16th January, 1878, there was no party to the suit representing or capable of standing in judgment for the owner of this property, that is, the succession of Truxillo. Plaintiff could not have ob-•fcained a valid judgment on his demand without first having made the 'legal representative oí the succession of Truxillo a party; and the sole representative of the succession was Buiz, the administrator. It was the business and the duty of plaintiff to have caused Buiz to be cited •as defendant. But plaintiff did not choose to do this. He had obtained on the release-bond a sum of money more than sufficient to satisfy his demand; and it is not probable that he would ever have taken any steps to make Buiz a party, or to have a definitive judgment rendered. But Buiz, mindful of his duty as administrator, and of his interest as aa creditor, came into court voluntarily, and sought, byway of intervention, to make the precise issues with plaintiff, in that form which he could have made as defendant, if plaintiff had chosen to afford him an opportunity to do so by citing him to answer.

In Tucker vs. Musselman, 6 An. 226, it was decided that where the plaintiff in sequestration obtains possession under a release-bond, he ■cannot be sued for that property in another court, on the ground that it was improperly bonded, while the suit in which it was sequestered is still pending. This decision proceeds upon the plain proposition that property sequestered, delivered to the plaintiff on bond, is in gremio legis; and that the right of plaintiff to retain possession under the bond until 'definitive judgment cannot be questioned in any other court of original jurisdiction. The contrary doctrine would lead to inextri- ■ cable confusion and complications.

In this ease, Widow Truxillo, the only defendant, had striven in vain to have the sequestration set aside, and the suit dismissed. She had informed the court that she was not the representative of the succession; and the plaintiff,, having the money of the succession in his possession, had failed to cite the administrator. The administrator could not have made himself a defendant in the suit; nor could he have sued plaintiff in any other court for the money which plaintiff held under the order and by authority of the Sixth District Court. He was ■compelled to proceed in that court; and it was wholly immaterial whether he preferred to bring a separate suit, which would necessarily have been cumulated with the original suit, or to intervene in the original suit. In either case, the question to be determined was the right of plaintiff to retain the money delivered to him on his bond. If the court was without jurisdiction, the sequestration could not be maintained ; and the plaintiff would be bound to restore the money. If the court had jurisdiction, and the sequestration was not valid, the detention of the money under the bond was not lawful; and the administrator was entitled to the possession.

Waiving any expression of opinion now as to the right of a creditor to sequester the property of a succession under administration, we shall consider the question of the validity of the sequestration upon the hypothesis that the court had jurisdiction to the extent of the value of the property sequestered.

The law requires aá a prerequisite to the issuing of the writ of sequestration, that the judge shall fix the amount of the bond to be given by the plaintiff. If the judge should grant the order, without fixing the amount of the bond, he might supply this omission by supplemental order; but no other person could. In such case, if the writ had been issued, and seizure made, under the original, defective order, a new writ should be issued, and new seizure made on the corrected or supplemental order. • A writ and a seizure under an invalid order cannot be validated by a subsequent valid order. The record in this case shows that the original order was fatally defective; and as there was but one writ, that which was issued under the original invalid order,-and the only seizure was under that writ, on the day that it was issued, the detention of the money seized by the sheriff, under that writ, and the subsequent release and delivery of it to the plaintiff, were equally illegal.

Jurisdiction cannot be acquired by the illegal seizure of property; nor by the citation of a person not amenable to the process of the court, and not capable of standing in judgment in the suit. But every court is competent to determine the right to the possession of property held and detained under its orders and by its authority; and the Sixth District Oourt alone had jurisdiction to determine, on the demand of the administrator, whether he, claiming in his representative capacity, or plaintiff, claiming under the sequestration and release-bond, was entitled to the money seized. It had no jurisdiction whatever of the money demand of plaintiff against the succession of Truxillo.

We do not think it necessary to remand the case, because the record contains all the evidence and issues requisite to the final determination of the controversy; and justice requires that it should bo determined without further delay.

It is therefore ordered, adjudged, and decreed that the judgments appealed from be annulled, avoided, and reversed ; that the exceptions taken by plaintiff to the intervention of Joachim Ruiz, Jr., administrator, be overruled, and the intervention be reinstated; that the demand of plaintiff against the succession of Florentin A. Truxillo be rejected, as in case of nonsuit, with reservation of his right to proceed against the succession in the proper tribunal, as if this suit had not been brought; that Joachim Ruiz, Jr., in his capacity as administrator, be decreed to be the lawful owner and entitled to the immediate possession of the money, to wit, the sum of twelve hundred and eighty one dollars and thirty nine cents ($1281 39), sequestered in this suit, and by the sheriff released on bond and delivered to Bernard Lemann on the 9th April, 1878 ; that there be judgment in favor of said Ruiz, administrator, against said Bernard Lemann, for said sum of twelve hundred and eighty one dollars and thirty-nine cents ($1281 39), with interest at the rate of ñve per cent per annum from the ninth day of April, 1878, until paid; and that the said Bernard Lemann pay all the costs of this proceeding in this court and in the district court.

Mr. Justice White having been of counsel takes no part in this decision.