Margot, Inc. v. Pearson

336 So. 2d 280, 1976 La. App. LEXIS 4472
CourtLouisiana Court of Appeal
DecidedJune 30, 1976
DocketNo. 10765
StatusPublished
Cited by2 cases

This text of 336 So. 2d 280 (Margot, Inc. v. Pearson) 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
Margot, Inc. v. Pearson, 336 So. 2d 280, 1976 La. App. LEXIS 4472 (La. Ct. App. 1976).

Opinion

COVINGTON, Judge:

Margot, Inc. has appealed from a judgment dissolving a writ of sequestration which had been issued pursuant to the repairman’s privilege on automobiles and other machinery provided for in LSA-R.S. 9:4501, and from a judgment awarding damages for the wrongful issuance of the writ of sequestration. Paul Pearson, the defendant, and Nora Byrd, Jr., the interve-nor, have also appealed the judgment complaining of the amount of damages and attorney fees awarded.

This suit arises out of a writ of sequestration issued at the instance of Margot, Inc., the plaintiff who was seeking to collect an amount allegedly due on an open account for parts and labor used to repair defendant’s vehicles by defendant, Paul Pearson. The plaintiff’s original petition set forth the indebtedness as amounting to $4,013.72. Annexed to this petition was an accounts receivable ledger sheet which [282]*282showed the balance owed by Pearson was $1,982.03. Defendant’s motion to dissolve and answer admitted he owed the sum of $1,982.03. Then, the plaintiff filed an amended petition setting out the corrected amount owed as $1,982.03.

Pursuant to the writ of sequestration, the sheriff seized a tractor truck and a gravel dump trailer purportedly belonging to Pearson. Defendant admits the dump trailer was owned by him, but contends .that the tractor truck was owned by Nora Byrd, Jr., who has intervened in the proceedings.

Subsequently, Pearson moved to dissolve the sequestration on the grounds that the amount sued for was not the amount owed, that Margot had never worked on the dump trailer, and that the tractor truck was owned by Byrd. On the same date Byrd, who was represented by the same counsel who was representing Pearson, intervened to have the writ dissolved as to the tractor truck, claiming that he was the owner of the tractor truck, and for damages for the wrongful issuance of the writ.

After a hearing on the motion to dissolve, Judge Claiborne dissolved the writ of sequestration, finding that “the affidavit attached to the original petition was incorrect; and further that someone other than plaintiff in rule (Pearson) owned the other vehicle seized.” Thereafter, the case was heard on the merits by Judge Engolio, who rendered judgment in favor of Margot on the open account for the sum of $1,982.03; judgment in favor of Pearson for $50.00 damages and $200.00 attorney fees for the wrongful seizure; and judgment in favor of Byrd, the intervenor, for $2,550.00 damages and $200.00 attorney fees. At the trial on the merits Pearson and Byrd were again represented by the same counsel (though a different one from that who represented them both on the motion to dissolve). All parties have appealed.

It is admitted that Pearson owed Margot the sum of $1,982.03 at the time the suit was filed and the writ of sequestration issued. The ledger sheet attached to the original petition shows this correct amount. The amended petition alleges this amount. The evidence establishes that this is the correct amount owed by Pearson. However, the original petition set out that Pearson owed Margot the sum of $4,013.72 (this figure was typed in the body of the petition from the “proof” column of the ledger sheet instead of the correct figure from the “balance” column, which is correctly shown as “1,982.03”).

Pearson contends, and the trial judge agreed, that by alleging the incorrect amount owed by Pearson in its petition Margot filed “a false affidavit” of the amount due, and consequently, the writ of sequestration “was issued without sufficient proof in the record” and was thus a wrongful issuance of the writ. We disagree.

The pertinent procedural article, LSA-C.C.P. art. 3501, provides (in part):

“A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.”

Although there was an error in the original petition in giving an incorrect figure for the amount owed, this error is of no legal consequence. No one was misled or harmed by this error. Both Margot and Pearson knew the correct figure was $1,982.03. Plaintiff’s itemized statement of accounts setting forth the debt actually owed by Pearson was made a part of the original petition. We, therefore, believe that the amount of the claim clearly appears from specific facts of the petition as required by article 3501 of the Code of Civil Procedure.

[283]*283The hypertechnical construction placed on this procedural rule by the trial judge is contrary to the purpose of our rules of procedure. All articles of the Code of Civil Procedure are to be construed liberally; they are “only a means to an end, not an end in themselves.” See LSA-C.C.P. art. 5051, and Comment thereunder. Procedural rules must be functional.

In addition, the case of E. B. Williams & Co. v. Louisiana Lumber Co., 105 La. 99, 29 So. 491, 492 (1901), squarely holds, in considering the other conservatory writ (writ of attachment), that when a person sues out a conservatory writ for a larger amount than he is entitled to, he may yet sustain the writ for the amount to which he proves he is entitled.

The Williams court said:

“The mere fact that plaintiff claimed too much, if claimed in good faith, is not to be taken as ground sufficient to dissolve the attachment, and perhaps prevent him from recovering the claim due.”

The other question raised by Pearson regarding the dump trailer was that this vehicle “has never been worked on by Mar-got, Inc., and is thus not subject to their lien or to be sequestered.” The evidence produced at the trial clearly shows that Margot did do the work which it claimed to have done on this particular vehicle. As a matter of fact, Pearson, in his testimony, admits that the work was performed by Margot on the dump trailer and that he paid for the work with a check that “bounced.” In his testimony, Pearson goes so far as to say: “I never said there wasn’t any work done on the dump trailer.” There is no merit to this contention.

We, therefore, find that the dump trailer, which was admittedly owned by Pearson and on which it was proven the repair work was done by Margot, was properly the subject of the writ of sequestration. We hold that, as to Pearson’s dump trailer, the writ of sequestration was not wrongfully issued, and the trial judge erred in dissolving the writ.

The case of Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970), relied upon by Pearson is inapposite. In the Hancock Bank case the plaintiff bank merely had an unsecured promissory note upon which it brought suit and sought a writ of sequestration. The bank’s petition did not set out the requisite grounds for the issuance of a writ of sequestration, as required by LSA-C.C.P. art. 3501. It is only when the plaintiff claims “the ownership or right of possession of property, or a mortgage, lien, or privilege thereon,” that a writ of sequestration can issue. LSA-C.C.P. art. 3571. The plaintiff in Hancock Bank only alleged “an indebtedness on a promissory note,” so was clearly not entitled to a writ . of sequestration.

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Cite This Page — Counsel Stack

Bluebook (online)
336 So. 2d 280, 1976 La. App. LEXIS 4472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margot-inc-v-pearson-lactapp-1976.