Wright, Williams & Co. v. White

14 La. Ann. 583

• Court: Supreme Court of Louisiana
• Decided: June 15, 1859
• Status: Published

Opinions

Land, J.

This is an attachment suit for the recovery of nine thousand five hundred and nine dollars and thirty-two cents, with eight per cent, per annum interest from the 9th day of June, 1855, for money advanced in payment of defendant’s draft, given on a final settlement of his account with Hill, McLean & Co., his former factors.

One hundred and fifty-four hales of cotton wore attached as the property of the defendant, on board the steamboat Sallie Robinson, at the port of New Orleans, consigned in the name of P. O’Donnell to Oalcey, Hawkins <& Co.

The consignees, Oalcey, Hawkins <& Co., intervened in the suit, and claimed the cotton as the property of O’Donnell.

On the 25th of November, 1856, Oalcey, Hawkins & Co. obtained an order of court, permitting them to bond the cotton, and accordingly, on the 21th day of the same month gave bond and security as required by order of court.

On the same day, to-wit, the 21th of November, 1856, Rebecca J. White, the wife of the defendant, and Mrs. S. C. W. Faust filed their petition of intervention in this suit, and claimed the cotton attached as their joint, undivided, separate property.

To this petition of intervention the plaintiff' pleaded, in his answer thereto, the following peremptory exception, “ that the cotton claimed had been delivered on bond, anterior to the filing of the intervention, to Odkey, Hawkins <& Co., and is not now in court,” and prayed that the intervention be dismissed.

On the 29th of May, 1851, the plaintiff filed a supplementary petition, in which he alleged, that since the institution of this suit ho had obtained a judgment in the Circuit Court of Yazoo County, in the State of Mississippi, against the defendant, for the same subject-matters stated in the original petition filed in this cause, and prayed for judgment as in said original petition, and that defendant be cited to answer thereto.

After the filing of the supplemental petition, the attorney appointed to represent the defendant filed the following exception, “ that the original cause of action, if any existed, has been merged in the judgment rendered in the State of Mississippi and the proceedings therein had, as shown by the supplemental petition and documents annexed; that this court, by the said proceedings of plaintiff’s, has been divested of jurisdiction in the matters in controversy, and this suit should be dismissed at plaintiff’s costs. Defendant further pleads res judicata.”

The intervenors alsoffiled an exception to the supplemental petition, as follows : “ that the same is a change of the original cause of action, 'and is contrary to law, and further pleaded the exception of res judicata.".

First. The intervention of Oalcey, Hawkins é Co.”is unsustained by the evidence. It does not appear Donnell wasjthe owner of the cotton^attached, or that jt was even shipped with his knowledge or consent. Nor does it appear i hat he or the consignees were ingpossession of ¡the bill of lading prior to the attachment of the cotton by the plaintiff. This intervention, therefore, must be dismissed.

Second. The peremptory exception filed by the plaintiff should have been sustained. Tli<$¿>ond given by Oalcey, Hawkins & Co. was only a substitute for the property attached, with regard togí/¿e plaintiffs,.and not as to the intervenors, or third parties'claiming jtitle thereto.

The intervenors cannot avail themselves of the bond, and their remedy was against the property itself in the hands of the party having possession of it. Dow v. Kershaw, 18 La. 57; Beal v. Alexander, 1 Rob. 5277, 7 Rob. 349.

Third. The exception filed by the attorney appointed to represent the defendant should have been overruled. The plaintiff had the right, under the law of Louisiana, to sue the defendant in the courts of this State, and also in the courts of Mississippi at the same time, and/or the same cause of action. This right necessarily carries with it the accessory right to prosecute the suits in the courts of the two different States to final judgments on the merits. This right is remedial, and is intended to secure to the creditor all possible means for the collection of his debt, in different jurisdictions. If the exceptions filed on behalf of defendant were sufficient in law to dismiss the plaintiffs’ action, the right to institute separate actions in different States, for the same debt, would be nugatory; for so soon as a judgment should be obtained in one State, it could be made the means of dismissing the suit in the other, and thereby deprive the creditor of the fruits of his diligence in the undecided suit.

Conceding that the account sued on was merged in the Mississippi judgment, the debt was not thereby extinguished, but established to be due and owing from the defendant to the plaintiff. This judgment in Louisiana is only evidence of the existence of the debt for the recovery of which this suit was instituted, the affidavit was made, the attachment bond was given, and the writ of attachment issued ; and there is no legal reason why this judgment should not be substituted, by way of amendment, as the cause of action, in place of the account, for the purpose of maintaining the attachment. The fact that the judgment is for a greater amount than claimed and sworn to by the plaintiff, is immaterial — for the reason that the attachment is only valid, as against the property, for the amount sworn to, whatever may be the amount claimed in the petition.

The supplemental petition did not change the substance of the demand. The prayer of the original petition is, that the attachment be maintained, and that defendant be condemned to pay the sum of $9,509 32, and interest, with privilege upon the property attached, and the prayer of the supplemental petition is the same.

It is, therefore,ordered, adjudged and decreed, that the interventions of Oalcey, Hawkins & Co, and of Mrs. White and Mrs. Faust be dismissed at their costs. And it is further ordered, adjudged and decreed, that the judgment be avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed, that the plaintiff do have and recover of the defendant the sum of nine thousand five hundred and nine dollars and thirty-two cents, with five per cent, per annum interest thereon, from the 9th day of June, 1855, and costs of the lower court; and that plaintiffs’ privilege upon the property attached be recognized and enforced. It is further ordered and decreed, that the defendant pay one-third of the costs of this appeal, that Oakc-y, Hawkins & Co. pay one-third, and Mrs. White and Mrs. Faust the remaining third,