Ludeling v. Garrett

23 So. 94, 50 La. Ann. 118, 1898 La. LEXIS 418

• Court: Supreme Court of Louisiana
• Decided: January 24, 1898
• Docket: No. 12,694
• Status: Published

Opinions

The opinion of the Court was delivered by

Breaux, J.

This was an injunction. In her petition for a writ of injunction plaintiff complained of a seizure made of her property under a writ of fieri facias issued on a judgment rendered in a suit entitled Bonecaze Shoe Company, Limited, vs. Succession of John T. Ludeling. She alleged that no judgment was rendered against her, and that the writ of ft. fa. under which her property bad been seized was directed against the succession of John T. Ludeling and Maria 0. Ludeling, and that the writ of fieri facias was not a writ under which it was possible to seize and sell property of a succession.

She alleged that she had suffered damages in one sum of five hundred dollars, occasioned by the unlawful seizure, and in similar amounts in counsel fee for obtaining the injunction.

In September following the date of the seizure made on defendant’s, the seizing creditor’s order, the seizure was released, and afterward the creditor answered plaintiff’s petition for an injunction, pleading a general denial and averring specially that Mrs. Ludeling’s individual property had been seized.

The judgment of the District Court sustained the injunction, but rejected plaintiff’s demand for damages.

Plaintiff appealed to the Circuit Court. On appeal that court determined ex proprio motu that it was without jurisdiction of the issues involved; that in addition to damages claimed there was a question of title to the property seized which brought the amount in dispute within the jurisdiction of this court.

Plaintiff then appealed to this court.

Here the defendant appellee moved to dismiss the appeal on the ground that this court is without jurisdiction ratione materia.

The question of jurisdiction is the first before us for determination.

The Circuit Court, in the opinion dismissing the suit, said: “ After carefully reviewing the record we did not find that defendant had judicially admitted that the property seized belongs to Mrs. Ludeling, nor can the inference be drawn from the fact that the seizure was released. It was necessary that the court should decide the question of ownership first in order to perpetuate the injunction, for if Mrs. Ludeling was not the owner she had no cause of action.”

Defendant’s answer especially denies her ownership.

In our view the foregoing statement of facts is correct. With reference to the law in the nature of things plaintiff could not recover damages for the illegal seizure of property she claimed, without proof that she was the owner, as alleged.

The defendants have denied her allegation. As to the ownership of the property, her ownership vel non became an issue. Evidently, prior to a determination of that issue, she could not stand in judgment. The release of the seizure, as relates to the jurisdiction of the court, did not affect the question involved. The defendant had denied the title. The abandonment of the seizure did not have the effect of admitting that the property was owned by the plaintiff; nor did it have the effect of admitting that plaintiff was entitled to damages, notwithstanding she did not prove that the property which had been seized was hers.

As against a seizing creditor, one seeking to arrest a sale by injunction on an allegation of his ownership, is bound to make out his title by clear written evidence. Jones vs. Lake, 43 An. 1024.

In the manner the controversy is before us, title to the property seized and the damages growing out of the seizure are inseparable issues and are considered together in determining the value of interests involved, and the jurisdiction of this court.

The court declined to dismiss the appeal.