text:
    No. 2601
    Second Circuit
    REED v. SHREVEPORT FURNITURE CO., INC. SHREVEPORT FURNITURE CO. v. REED (Consolidated)
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Trespass—Par. 1.
    No one has a right to usurp the functions of the courts and take the private property of his debtor without due process of law.
    2. Louisiana Digest — Trespass—Par. 13, 19.
    ■ Where the owner of a chattel mortgage illegally takes possession of the property mortgaged', without legal process and without consent of the debtor, he is liable for the damage done.
    3. Louisiana Digest — Trespass—Par. 18, 19.
    Damages will be awarded for an illegal trespass which resulted in humiliation to the other party and his family without proof of actual damage.

      Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Shreveport Furniture Company against Harry C. Reed.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Dickson & Denny, Shreveport, attorneys for plaintiff, appellee.
    C. H. Lyon, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

This is a suit on a promissory note secured by a chattel mortgage on furniture. The facts are fully stated in the opinion in the case of Harry C. Reed versus Shreveport Furniture Company, Inc., No. 2601 on the docket of this court and this day decided.

In this suit the lower court held that plaintiff had made out its case.

The evidence satisfies us that the judgment appealed from is correct and it is accordingly affirmed, with costs.

The plaintiff, Reed, purchased certain furniture from the defendant, Shreveport Furniture Company, Inc., on terms of credit. As evidence of the unpaid balance, he executed his note for $192.95 secured by chattel mortgage on the furniture. This was on December 13, 1924. He subsequently made a payment of $26.00 on the note.

On Saturday, January 24, 1925, Reed, with his family, left his home in or near the city of Shreveport and went to Oil City in Caddo parish, where he remained until the following Saturday. When he returned with his family he found that all of' the furniture which he had purchased from the defendant furniture company had been removed from his residence, and, on inquiry, he ascertained that it had been removed by defendant.

Not having bed or bedding left in his residence, he and his family took refuge for the night with a neighbor.

On the following day he consulted a lawyer and this suit followed.

He sued the furniture company, which had removed the furniture, and joined as defendant L. T. Bailes on the alleged ground that Bailes was instrumental in having the furniture company enter his residence and commit the trespass.

He alleged that the furniture company, by and through its agents, broke the locks to the doors of his residence and forcibly entered and removed therefrom not only the furniture but various other articles of value.

He claimed from the defendants the value of the property and $500.00 for humiliation to himself and family and $500.00 for damage to his credit.

The lower court rejected his demands and he appealed.

OPINION

The furniture company admitted that it, through its agents, and employees, entered plaintiff’s residence and removed .the furniture which it had sold him and on which it had a lien and privilege, but sets up as a defense that it was notified that Reed had left and that his whereabouts were unknown. to it and that he had left his house open and his property exposed; that upon investigation it was found that the back doors to the house were open and that not knowing where Reed was or when he would return to it, as a protection to Reed as well as to itself, took possession of and removed the furniture to its warehouse or storeroom in the city of Shreveport; all of which, it claims, was done in good faith and without malice or ill will toward Reed.

It further alleged and proved that, upon Reed’s return, it offered to return Reed’s furniture to him in the same condition in which it was when taken. It also alleged and proved that it neither took nor molested any other property.

We concur with the district judge in his conclusion that Reed is not entitled to judgment for the value of the furniture taken by defendant. He owed thereon practically the full amount of the purchase price, which amount had all fallen due under the terms of the note and chattel mortgage by reason of the fact that Reed had not made payments promptly.

The present suit was filed on February 3, 1925, and, on February 4, 1925, before service had been made and before defendant had knowledge of the filing of the suit, it filed suit against Reed for the full amount owing on the note and had the said furniture seized under the chattel mortgage.

Reed makes practically no defense to that suit and judgment was properly rendered against him ordering the furniture sold in satisfaction of the amount due thereon.

But we do not concur with the district judge in holding that Reed is not entitled to some redress against the furniture company for its illegal and unwarranted conduct in going upon his premises and taking possession of and removing his property during his absence.

If all that defendant alleged, and if all that its witnesses swore, is true, there is still liability, at least to some extent.

No one is permitted to enter the home of a citizen during his absence and take and appropriate his property without due process of law.

Defendant had a lien and privilege on the plaintiff’s furniture and ample legal remedy to enforce its rights. Disregarding the- due and orderly process of the courts and the laws made for the protection of its rights, it took upon itself the right to invade plaintiff’s private residence and seize and carry away his property-— acting as judge, jury and executioner.

For courts to tolerate such conduct would be to open wide the door to “frontier process” for the collection of debt.

Nor can defendant excuse its conduct upon the flimsy pretext that it acted without malice and for the protection of Reed as well as itself. Its conduct was a trespass which unquestionably annoyed and embarrassed plaintiff to some extent and for which the court can and should allow at least nominal damages.

As early as 1841 the Supreme Court, in the case of Thayer vs. Littlejohn, 1 Rob. 140, registered its unqualified disapproval of such conduct and commended the jury which—

“manifested their duty to prevent the recurrence of acts showing such disregard of the law.” »

The syllabus of that case reads, in part, as follows:

“Where a landlord, instead of resorting to the means provided by law for obtaining payment of his rent and possession of his premises, takes upon himself, without authority, to remove the property and turn out the family of his tenant, he will be liable in damages; and it will be no excuse that such removal was effected without violence or injury.”

The ruling in that case has been followed through an unbroken line of decisions of the Supreme Court down to the case of Gumpert vs. Werlein, 149 La. 840, 90 South. 215, decided in 1921.

It is true that in nearly all the cases the court was considering instances where landlords had evicted their tenants without due and legal process of law, but the principle is the same.

The principle underlying all the cases is that no one has a right to usurp the functions of the courts and take the private property of his debtor without due process of law.

Wrenn vs. Flynn, 34 La. Ann. 1158.

Jenks vs. Sewing Machine Co., 34 La. Ann. 1241.

Enders vs. Skannal, 35 La. Ann. 1000.

Johns vs. Pereira; 13 La. Ann. 148.

Fitzgerald vs. Baulat, 13 La. Ann. 116.

Walter & Edmonds vs. Cockfield, 111 La. 595, 35 South. 778.

Wood vs. Monteleone, 118 La. 1005, 43 South. 657.

John Corliss vs. Silva, et al., 1 La. App. 283.

In the recent case of Gumpert vs. Werlein, 149 La. 840, 90 South. 215, the court held that a petition alleging that the vendor of a piano on which petitioner owed a small balance who undertook to take the law into its own hands and sent men to remove the piano, resulting in nervous shock to her, charged a cause of action, which fact, if proved, would entitle plaintiff to at least nominal damages.

In the case of Bourdett vs. Sieward, 107 La. 258, 31 South. 630, the court said (p. 264):

“We have held that the violation by a person of the legal rights of another renders the violator liable for at least nominal damages, without proof of actual damages.”

Citing:

Dudley vs. Tilton, 14 La. Ann. 283.

Powers vs. Florance, 7 La. Ann. 524.

Bourdette vs. Sieward, 52 La. Ann. 1333, 27 South. 724.

“For every invasion of a right there is a remedy and that remedy is compensation for loss sustained.”

In the case at bar, plaintiff’s legal right was to be left secure in his home and to possess and hold his property until divested thereof by legal process. Defendant violated that legal right by going upon and into his private premises and taking possession of and removing his property without his consent.

We are not impressed by defendant’s contention that it took possession of the furniture to protect Reed. It is true that the house was open and the furniture could have been carried away by thieves; but it is quite significant that defendant took and carried away only that part of Reed’s belongings in which it was interested and on which it had a claim. If defendant had intended to perform toward Reed a mere neighborly service it is strange that it did not go further and render secure Reed’s other personal property then in the house. It left other articles of value scattered over the house and it left the house unlocked as it found it. We are therefore impressed that defendant was looking out for itself.

Reed proved no damage to his credit, nor did he prove any other actual damage; but we can award damages for the trespass which resulted in humiliation to plaintiff and his family, without proof of actual damage.

Considering all the circumstances, we think an award of $50.00 is sufficient. We would not be warranted under the facts and circumstances of the case in holding the defendant Bailes liable.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the plaintiff, Harry C. Reed, have judgment against and recover from the defendant Shreveport Furniture Company, Inc., the sum of fifty dollars, and all costs of both courts.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    Nos. 2988 and 2989
    Second Circuit
    MRS. CHILDERS v. FORD, BACON & DAVIS, INC. MR. CHILDERS v. FORD, BACON & DAVIS, INC. (Consolidated)
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4, 4b, 4d.
    The driver of an automobile who, in turning from a cross street at an excessive rate of speed, drives on the left-hand side of the street, colliding with another car, is guilty of gross negligence.
    2. Louisiana Digest — Automobiles—Par. 7.
    One who drives his car on the right-hand side of the street at a moderate rate of speed is not contributorily negligent in a collision with another car driven in the opposite direction at an excessive rate of speed oh his left-hand side of the street.
    3. Louisiana Digest — Automobiles—Par. 9.
    A judgment of five thousand, five hundred and fifty-two dollars and seventy-three cents is adequate quantum of damages for expense for loss of time, medical and surgical fees, hospital bills, damage to automobile, pain, suffering, and temporary and permanent injuries consisting of contusions about the face and head, laceration of the right leg and contusions on the left knee, fracture of the malar bone, and an incomplete rupture of the bladder.
    4. Louisiana Digest — Automobiles—Par. 9.
    Three thousand dollars is adequate quantum of damages for laceration of lower lip, abrasion of the arm, contusion of the left knee, fracture of one rib, false teeth broken, and, as a'result, stomach fallen down two and one-half inches below its normal position, making her totally disabled to do work of any rtb n flfOT
    (See Civil Code, Art. 2315. — Editor’s note.)
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by Mrs. Mary L. Childers against Ford, Bacon & Davis, Inc., and by Mr. Davis, against Ford, Bacon & Davis, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Theus, Grisham & Davis, of Monroe, attorneys for plaintiff, appellee.
    Shotwell & Brown, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs are husband and wife and brought separate suits against defendant for' damages resulting from personal injuries caused by a collision between an automobile occupied by plaintiffs and driven by John C. Childers and an automobile owned by defendant and driven by one of its employees. The twq •suits were consolidated for the purpose of trial.

Plaintiffs allege that the collision between the two cars was caused by the fault, gross carelessness and negligence of the driver of defendant’s car, and specify that he was driving at an excessive rate of speed of fifty miles per hour in violation of the municipal ordinance regulating the speed of automobiles in the city Monroe, and that when defendant’s car reached a point a short distance ahead of plaintiff’s, the two cars going in opposite directions, defendant’s driver, without warning or signal, turned from his side 'of the street and ran across to the opposite side, running into plaintiff’s car.

Defendant, in answer, denied negligence ,on the part of its employee, and alleged that plaintiffs—

“turned suddenly to the left without warning or notice and deliberately ran said automobile directly in front of the Dodge touring car belonging to defendant and made it impossible for the said Gus Brunson, driver of respondents, to get out of the way or avoid said collision; that said collision was due entirely to the gross and negligent manner in which the driver of the Ford car, plaintiff being the driver thereof, was driving.”

Each of the parties, therefore, charge the other with identically the same fault and negligence, to-wit: suddenly and without warning turning to the left and leaving his side of the street when they met. Plaintiffs, however, in addition to this negligence, allege that defendant’s driver was running at an excessive rate of speed.

On these issues the case was tried and there was judgment in favor of the plaintiff, John H. Childers, and against the defendant for $5552.73 with legal interest thereon from judicial demand, and judgment in favor of plaintiff, Mrs. Mary L. Childers, and against the defendant for $3000.00 with legal interest thereon from judicial demand.

The defendant appealed.

OPINION.

The testimony shows conclusively that plaintiff, Childers, was guilty of no negligence in the operation of his car but, on the contrary, that Brunson, the driver of defendant’s car, was not only driving his car at an excessive rate of speed but left his side of the street at the scene of the accident and the cars collided over on plaintiff’s side of the street.

The two cars collided on South Grand street near the point where it merges into what is known as “Lovers’ Lane” (“Lover’s Lane” is a continuation of Grand street). The cars were going in opposite directions, Childers going0 south and the other car going north toward Monroe.

Mrs. S. R. Humble was an eye-witness to the collision. Her testimony, in substance, is that she was sitting in an automobile parked at a filling station about twenty-five feet from the scene of the collision and was looking directly at the two cars when they collided; that plaintiff was driving very slowly, near the curb on his right-hand side of the street, his car going south; that defendant’s car, going north, whipped around another car going in the same direction, and, failing to get back to its right-hand side of the street, ran into the; Childers car on the opposite side of the street.

Jimmie Villanti, who operates a filling station on the said street, testified that the collision occurred about twenty-five feet north of his place; that he was waiting on a customer at the time, heard the crash, looked around, saw Mr. and Mrs. Childers lying on the curb on the west side of the street, and that the collision took place on the west side, Childers going south.

J. W. Wallace testified that he lived about a block from where the collision took place, was out working his flowers at the time, and says:

“I was looking mighty near right at when it happened.”

And when asked what side of the street Childers was on when the collision took place, he said:

“Right-hand side, about as far as it could be.”

W. R. Simms, Jr., testified that he talked with Brunson, the driver of defendant’s car, immediately after the ' accident, and that Brunson, in explaining how the accident occurred, said to him, in substance, that some one turned into Jimmie Villanti’s filling station and he cut around and could never get his car straight, and his brakes did not work well.

Myatt McClendon testified that he was going south, passed the Childers car a few moments before the collision, met defendant’s car going north speeding, heard the crash, looked back and saw Mr. Childers falling out of his car, and that the Childers car was on the righthand side of the street, near the curb, when he passed it, and testified positively that the collision took place on that side.

Both Mr. and Mrs. Childers swear that they were driving slowly, on the right hand side of the street, and that they did not turn to the left, and that the collision took place on their side.

Fred C. Childers, son of plaintiffs, testified that he went to the scene immediately and found his father’s car sitting on the levee west of the road; that his car was knocked out of the road, over on the west side, and that the dirt which fell from the cars when they collided was on the west side.

The eye-witnesses to the collision testify that Childers did not leave his side of the street but that defendant’s car swerved or turned to the left and that the two cars collided over on the west side.

Against this we have the testimony of two witnesses, Brunson, the driver of defendant’s car, and Cupples, a disinterested witness.

Brunson says that his recollection of “the whole matter is, I was going north on Grand street, and before the accident occurred a car or machine passed me going south, and then I saw this Ford coupe turning or attempting to turn, or did turn, as if to go into this blind street. That’s the facts as I recall them, and the cars hit. I suppose the impact made me lose control of the machine and I sorter pushed this car up on the bank.
$ * ‡ $
“Well, my foot must have been jarred aloose from the brakes, and the car continued at a low rate of speed down the street.”

He denied that he told plaintiff’s witness, Simms, that he turned to the left and lost control of his car.

While Mr. Cupples’ testimony is relied ' upon by defendant, it is of about as much value to one side as to the other. He was driving south behind the Childers car and was about three-fourths of a block back.. He says that Childers made a long swing to the left and that the collision took place on the east side of the street.

On the other hand, he was asked:

“Did the Dodge car, which was traveling in a northerly direction, or not, turn from the east side of the street?”

And he answered:

“Well, I think it did a little bit. Just right about, just before the time that it hit the Ford.”
“Q. Did the Dodge car go beyond the center of the street?
“A. Very little, if any.”

Again, he says:

“The Dodge car, the way it looked to me, the car must have been driving at a lively pace, and Mr. Childers was driving very slow; I don’t think over twelve miles an hour; and the cars hit.”

He further testified that just previous to the collision Childers was on his side of the street.

On the opposite side of the street from where Childers was driving a side or “blind” street leads off to the east and extends out about one block. It is defendant’s theory that when Childers got to that point he attempted to cross over and go into this blind street.

Mr. and Mrs. Childers deny that they intended or tried to cross over and enter this side street. Aside from their denials, we discard defendant’s theory on that point because no reason is suggested and none can be imagined why they should have wanted to enter this side street. They live south of the city of Monroe on the main public road which is a continuation of the street on which they were traveling. They were on their way home. The side street did not lead toward their home, and, in fact, led nowhere, but stopped only a short distance from the main highway.

On the question of liability, the case is with the plaintiffs. defendant’s driver was grossly negligent and careless, and plaintiffs were guilty of neither.

ON THE QUANTUM OF DAMAGE

As usual in personal injury cases, this is a difficult problem for courts to solve. The lower court awarded plaintiff, John C. Childers, the sum of $5552.73 and his wife, Mrs. Childers, $3000.00, which amounts, we infer, were intended to cover their expense for loss of time, medical and surgical fees, hospital bills, damage to car, pain and suffering, and permanent injuries.

Counsel for plaintiffs moved in this court to amend the judgments by increasing the amounts, and they cite numerous cases which they say establish precedents by which this court should be guided in the case at bar.

Counsel for defendant, on the contrary, are equally as zealous in their contention that the amounts should be reduced, and they cite a long list of cases in which awards were less for injuries which they assert were as serious as those suffered by these plaintiffs.

Reported cases are of but little assistance to the court in cases of this kind. The amount awarded in each case must depend upon the facts disclosed. The fixing of the amount. of damage in a case like this is at best but a bare estimate.

■ The plaintiff, John C. Childers, was picked up on the side of the street and sent to a sanitarium in an ambulance. Doctor French, who attended him, at once, said that he was suffering very intense pains about the head, was bleeding from the mouth and nose, had lacerations on the right leg and contusions on the left knee and other parts of the body, had contusions on the head, one eye was very much swollen and almost closed, that the patient spat blood for two or three days after going to the sanitarium, that his urine showed blood, that the x-ray showed a fracture of the malar bone, that the patient was very restless in the sanitarium, and to quiet him he used ice bags and sedatives. The patient stayed in the sanitarium about five days, when he was removed to his home.

Doctor French testified further that .blood continued to pass from the patient’s bladder, and not being a specialist on diseases of the bladder he referred the patient to Doctor McKoin who specializes in diseases of that organ.

Doctor McKoin testified that he made a thorough examination of plaintiff’s kid-neys and bladder, using the cystoscope, by means of which these organs were literally visualized. His examination was made' in October after the accident -in August, and was witnessed by Doctor Gray and one other physician.

These physicians testify that the patient had an incomplete rupture of the bladder and cystitis with hemorrhage; that the bladder was still infected and inflamed on account of the rupture; that the patient was still passing blood; that he cannot entirely empty his bladder and that there .is always a residue which causes constant pain to some degree; that when urine accumulates in the bladder beyond- six ounces he suffers intense pain.

Doctor McKoin testified that he examined the patient in 1924 and found a .stone in his bladder ah inch thick, which was removed by other physicians, and that the patient was cured. He testified further that the presence of the stone in the bladder did not cause the rupture which he found on his examination in October, 1926, subsequent to the accident. He was of the opinion that the rupture could have been caused by a blow in the region of that organ but could not say positively that it was.

Doctor Gray, who was present at this examination, testified substantially as did Doctor McKoin.

Doctor McKoin testified, as did Mr. Chil.ders, that for many years prior to 1924 Mr. Childers suffered with bladder trouble but that subsequent to the removal of the stone in 1924 he had no further trouble up to the date of the accident in August, 1926.

Experts are agreed that the patient cannot be cured of his present trouble without an operation, which is dangerous at his age.

Doctor Vaughn, a general practitioner, was of the opinion that the presence of the stone in the patient’s bladder caused the rupture found by Doctor McKoin and Doctor Gray; but Doctor McKoin, who located the stone in 1924 said it was not at or near the present rupture and was of the opinion that the stone had no connection with the rupture.

Plaintiff continues to pass blood, suffers pain and inconvenience in the bladder, cannot work as he could before the accident. His only relief is an operation, which, for a man of his age, is dangerous.

AS TO MRS. CHILDERS’ INJURIES

She had a laceration in the lower lip, an abrasion of the arm, her left knee was •contused and swollen, one of her ribs was fractured, she was very nervous and suffered intense pain, complained of pain in the region of the stomach and lower abdomen, had her false teeth broken, which had to be repaired at a cost of $75.00. As a result of the accident her stomach has fallen down two and one-half inches below its normal position and has to be held up in place with straps and bandages. Before this accident she was able to do her housework, such as cooking, washing and milking the cows. The testimony shows that she is now totally disabled and needs assistance in sitting down and rising from a chair.

Some of the physicians were of the opinion that the drop down of the stomach was due to age and natural causes and some thought that the stomach is now in its normal place.

Efforts to reconcile the testimony of the experts would be a hopeless task and we shall not attempt it. The testimony, however, as a whole satisfies us that Mrs. Childers suffered injuries as a result of the collision from which she has not yet and probably will not recover.

These plaintiffs are each over sixty years of age. Their recuperative powers are greatly diminished. It is doubtful if either will ever fully recover from the injuries which they have received.

Our examination of the testimony convinces us that the judgment of the District Court does substantial justice to both the parties and we shall not disturb it.

The judgments are affirmed.


author: REYNOLDS, J.

text:
    No. 3156
    Second Circuit
    SAMUEL v. RISER
    (November 10, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Courts—Par. 26, 88.
    The territorial jurisdiction of the City Court of Shreveport under Act No. 103 of 1898, comprising all of Ward 4, part of which was not in the city of Shreveport, cannot be extended by an ordinance of the Police Jury, after the consolidation of Shreveport with Cedar Grove, extending the limits of Ward 4 to comprise Cedar Grove also, as to matters in which the city of Shreveport is not directly concerned, such as state laws and ordinances of the Police Jury.
    2. Louisiana Digest — Courts—Par. 26, 88.
    The judge of the City Court of Shreveport, under Act No. 103 of 1898, is vested with jurisdiction of violations of the ordinances of the city of Shreveport and, therefore, became vested by the merger of the city of Shreveport with the city of Cedar Grove, with the power to enforce the ordinances of Shreveport over the added territory formerly Cedar Grove.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by David B. Samuel against S. M. Riser.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    B. F. Robert, Bryan E. Bush, of Shreveport, attorneys for plaintiff, appellant.
    J. S. Peters, of Shreveport, attorney for defendant, appellee.
   REYNOLDS, J.

In this action, D. B. Samuel, Judge of the City Court of the city of Shreveport, proceeded by rule against S. M. Riser, Judge of the City Court of the city of Cedar Grove.

Plaintiff alleged that defendant was exercising the duties and functions of judge of the City Court of the city of Shreveport, and the rule ordered defendant to show cause why it should not be adjudged that he was unlawfully holding and exercising the duties of the office of judge of the City Court of the city of Shreveport.

On trial of the rule it was discharged •at plaintiff’s cost, and plaintiff appealed.

OPINION

The pleadings and evidence establish that David B. Samuel is the duly elected and qualified Judge of the City Court of the city of Shreveport, which office was created by Act No. 103 of 1898, under which statute the office of justice of the peace in the fourth ward of Caddo parish (in which ward the city of Shreveport was situated at that time) was abolished and instead the City Court of the city of Shreveport was created with territorial jurisdiction co-extensive with ward four of the Parish of Caddo and such civil jurisdiction as was vested in the justices of the peace and criminal jurisdiction of offenses committed in said ward not punishable by imprisonment at hard labor under the laws of the state and of violations of ordinances of the city of Shreveport and of the Police Jury.

S. M. Riser is the duly elected and qualified Judge of the City Court of the city of Cedar Grove, which office was provided for under Section 2 of Act No. 96 of the extra session of 1921, being an amendment to the general municipal incorporation law (Act No. 136 of 1898) which declares that in wards containing cities of more than five thousand inhabitants a City Judge shall be elected by the voters of the ward in which the city is situated with such civil jurisdiction as is vested in justices of the peace and criminal jurisdiction for the trial of offenses under the laws of the state and violations of municipal and parochial ordinances.

As appears from the foregoing statement, the jurisdiction of the two courts, relative to their powers as to matters which they could consider, or their jurisdiction ratione materiae, was practically identical, and while the territorial jurisdiction of the City Court of the city of Shreveport, as fixed by the statute creating it, was ward four of the Parish of Caddo, the territorial limits of the jurisdiction of the City Court of the city of Cedar Grove must be determined aliunde with reference to the limits of the ward in which the city of Cedar Grove was situated at the time of the creation of the court.

The evidence as to the ward in which the city of Cedar Grove was situated at the time of the creation of the court is not clear, but it appears to be conceded that the city was situated in ward nine and that subsequently the Police Jury created out of the territory comprising ward nine and possibly territory situated within the limits of other wards, ward ten, and that the officers charged with the duty of enforcing the laws, and especially S. M. Riser as Judge of the City Court of the city of Cedar Grove, recognized the limits of ward ten as constituting the territorial limits of the jurisdiction of that court; and while the evidence is somewhat vague and uncertain, we presume that it is conceded that the limits of ward ten are greater than the limits of the city of Cedar Grove and that the territorial jurisdiction of the City Court of the city of Cedar Grove extended over the ward as well as over the city of Cedar Grove, which was situated in the ward.

Under the provisions of Act No. 35 of 1924, elections were held in the cities of Shreveport and Cedar Grove, looking to the merger of the two cities, and the election resulting favorably to the consolidation, the governor, in accordance with the .statute, on June 29, 1927, issued his proclamation declaring the two cities had been merged, the merger taking effect July 1, 1927.

Prior to the consolidation, the Police Jury of Caddo Parish (presumably having in view the consolidation of the two cities) .adopted an ordinance extending the limits of ward four so as to embrace the territory comprised within ward ten and abolished ward ten, the ordinance becoming .effective July 1, 1927.

The contention of plaintiff seems to be that by reason of the consolidation of the two cities and the ordinances of the Police Jury, his jurisdiction, civil as well as criminal, was extended over the territory formerly comprised within the limits of the city of Cedar Grove, as well as over the territory formerly comprised Within the limits of ward ten; or, in other words, that the City Court of the city of Cedar Grove, which formerly exercised jurisdiction over the city of Cedar Grove and the balance of ward ten, had been established by the merger of the two cities and .the ordinances of the Police Jury.

The position taken by plaintiff involves two questions: First, the efféct of the merger of the two cities; and, second, the effect of the ordinances of the Police Jury.

And if the latter had the effect claimed by plaintiff, it will be unnecessary to consider the former; and we shall, therefore, first consider the effect of the ordinances.

While counsel dq not press the consideration of the effect of the ordinances, yet it is suggested that if the City Court Of the city of Shreveport was vested by the statute creating it with jurisdiction over ward four of Caddo Parish and extending to matters of a civil nature of which justices of the peace' were vested with jurisdiction and of violations of ordinances of the city of Shreveport and of the Police Jury of Caddo Parish, as well as violations of state laws, necessarily when the limits of ward four were extended by the Police Jury, the City Court of the city of Shreveport became vested with jurisdiction of all such matters over the extended territory.

The City Court of the city of Shreveport was created by act of the legislature instead of the justice of the peace court a,nd it was given territorial jurisdiction over territory which was at that time defined as the fourth ward of Caddo parish, and while the Police Jury had, at that time, power to rearrange and, in that manner, to change the limits of ward four, so as to affect the territorial jurisdiction of justice of the peace courts, we are. not cited to any law or ruling holding that the Police Jury was vested with any power to change the territorial jurisdiction of the City Court of the city of Shreveport as fixed by the statute creating the court, and we are of the opinion that the territorial jurisdiction of the City Court of the city of Shreveport was not in any manner affected by the ordinances of the Police Jury extending the limits of ward four.

As to the effect of the consolidation of the two cities on the jurisdiction of the City Court of the city of Shreveport, the following questions are involved.

First: Did the merger have the effect of extending the. jurisdiction of the City Court of the city of Shreveport over the territory formerly comprising the limits of the city of Cedar Grove relative to matters of a civil nature or to the enforcement of the ordinances of the Police Jury or the laws of the state?

Second: Did the merger have the effect of extending the jurisdiction of the City Court of the city of Shreveport over the territory formerly comprising the limits of the city of Cedar Grove as to ordinances of the City of Shreveport?

(1) The City Court of the city of Shreveport, as well as the City Court of the city of Cedar Grove, as we have previously stated, were created by or under statutes which abolished justices of the peace courts in the territorial jurisdiction fixed by the statute of the respective courts which were created; and while the legislature had the power to abolish or to change the jurisdiction, territorial or otherwise, of such courts, as it might have deemed necessary, and while it may have had the power to enact laws where the jurisdiction of such courts would necessarily be affected in carrying into effect such statutes, yet it is not contended that, insofar as the jurisdiction of the respective courts is concerned, and as it relates to their jurisdiction over civil matters or criminal matters involving the enforcement of the laws of the state or the ordinances of the Police Jury, the statute under which the two cities were consolidated expressly ¡provided for the extension of the jurisdiction of the City Court of the city of Shreveport.

But it appears to be urged that it may be inferred from the statute creating the City Court of the city of Shreveport, which provided that the judge of that court shall be vested with jurisdiction of such matters in the territory comprised within the limits of the city of Shreveport, that the limits of the city of Shreveport having been extended by the merger over the territory comprised in the limits of the city of Cedar Grove, it necessarily followed that the territorial jurisdiction of the City Court of the city of Shreveport was extended on the merger of the two cities.

The City Court of the city of Shreveport as created was not, strictly speaking, a municipal court, as its territorial jurisdiction extended beyond the limits of the municipality, and it was vested with jurisdiction over matters with which the munici'pality was only incidentally concerned as one of the governmental agencies of the state; and it having been created by the legislature, we think it is a state court; and the fact of the limits of the muniei- . pality being extended did not necessarily extend the. jurisdiction of the City Court of the city of Shreveport over the added territory as to matters with which the municipality was not dirctly concerned.

The City Court of Cedar Grove was also created by the Legislature and it was also given territorial jurisdiction beyond the limits of the municipality and over matters with which the municipality was only incidentally concerned, and to hold that the City Court of the city of Shreveport became vested with jurisdiction over the extended territory comprising territory formerly within the limits of the city of Cedar Grove as to matters with which the municipality was only indirectly concerned, would be, in effect, to say that the City Court of the city of Cedar Grove had been inferentially abolished by the consolidation of the municipalities, when it does not appear and is not suggested that as between the two courts there would be any conflict of jurisdiction.

We are therefore of the opinion that the merger of the two cities did not extend. the jurisdiction of the City Court of the city of Shreveport over the territory formerly comprising the limits of Ward Ten of Caddo parish or within the former limits of the city of Cedar Grove, as to matters with which the municipality was not directly concerned.

(2) We think that the consolidation of the two cities was effected (and being of the opinion that defendant was not a municipal officer of the city of Cedar Grove, the question of the expiration of his term of office is irrelevant) and under the terms of the statute the ordinances of the city of Cedar Grove ceased to exist and the ordinances of the city of Shreveport became effective over the territory' formerly comprising the city of Cedar Grove, and the judge of the City Court of the city of Shreveport being vested by the Legislature with jurisdiction of viola-tions of the ordinances of the city of Shreveport, he became vested by the merger with power to enforce the ordinances of the city of Shreveport over the added territory formerly ■ comprising the city of Cedar Grove.

Respondent, however, denied that he was attempting to enforce the ordinances of the city of Shreveport, and there is no evidence in the record indicating the contrary, and while we are of the opinion that the City Court of the city of Shreveport has jurisdiction to enforce the ordinances of the city of Shreveport in the added territory, we do not think the rule should be-maintain,ed even to that extent, as it appears, as above stated, that respondent was not in any manner inter- • fering with the jurisdiction of plaintiff in enforcing the ordinances of the city of Shreveport; and being of the opinion that plaintiff’s jurisdiction as to civil matters or criminal matters other than violations of ordinances of the city of Shreveport has not been extended over the territory formerly comprised in Ward ten, or the city of Cedar Grove, the judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 9405
    Orleans
    UNITED SHOE REPAIRING MACHINE CO. v. COSTA AND SERIO FERRARA, Intervenor
    (October 4, 1927. Opinion and Decree.)
    (November 2, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Execution—Par. 114; Obligations — Par. 51.
    The ten days’ advertisement of the sale of movable effects under execution may be reduced to five, or waived entirely, by agreement.
    2. Louisiana Digest — Landlord and Tenant —Par. 98.
    The landlord may seize the property of third persons on the leased premises in satisfaction of his rent and, a fortiori, may seize property leased to his tenant.
    Appeal from Civil District Court, Division “C”. Hon. E. If. Skinner, Judge.
    Action by United Shoe Repairing Machine Company against J. Costa and S. Serio.
    Lucille L. Ferrara intervened.
    There was judgment for defendant dissolving the sequestration and recognizing ■claim of intervenor and plaintiff appealed.
    Judgment affirmed.
    Dufour, Goldberg & Krammer; E. C. Hollins, of New Orleans, attorneys for plaintiff, appellant.
    Weiss, Yarrut & Stich, and W. O. Hart, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, claiming to be the owner of certain shoe repairing machinery, sequestered it in the ■ hands of defendants. Lucille L. Ferrara intervened and set up title to the machinery by purchase from John L. Costa, to whom the machinery was adjudicated at a sheriff’s sale in the matter of John P. Viviani vs. Antonio Adiego, No. 148,851 of the Civil District Court. The defendants set up no title to the property. The controversy lies between plaintiff and intervenor. -

Plaintiffs attack the sheriff’s sale to ■ Costa, intervenor’s vendor, upon the ground, first, that it was preceded by advertisement of only five days, instead of ten, as the law (Art. 670 C. P.) directs, and, second, the judgment debtor was not the owner but the lessee of the machinery .arid Costa, the adjudicatee, could get no greater title than the debtor held because under Art. 2620 R. C. C, the sale under execution “transfers only the rights of the debtor such as they are”.

The proceeding (Viviani vs. Adiego heretofore alluded to) was for the enforcement of a chattel mortgage, via ordinaria. In .the act of mortgage sued on, there is a clause permitting the mortgaged property to be sold in the event of default, following three advertisements, within five days, and this privilege the seizing creditor availed himself of. There is no doubt' that the debtor could waive the ten days’ advertisement provided by C. P. 670 and could agree to five days. In Barron vs. Sallibellos, 28 La. Ann. 355, it was so held. Plaintiff’s first point, therefore, is without merit. But, it is argued, the shoemaking outfit was only leased to Viviani’s debtor and the purchaser at the sheriff’s sale could not acquire any superior title to that held by such debtor. This is good law and if it were not for the fact that Viviani’s landlord intervened in the proceeding, before the execution sale, would possibly be applicable here. But as against the landlord, third persons owning property on the leased premises can 'not complain if their property be sold by the landlord in order to collect his rent. R. C. C. 2705; Johnson vs. Lacneau, 23 La. Ann. 453. It is not disputed that Costa was a bona fide purchaser nor that intervenor, who acquired from Costa, was in like good faith. Plaintiff failed to intervene in the execution sale. It is not contended that the shoe machinery outfit was temporarily on the leased premises.

The judgment appealed from dissolved the sequestration and recognized the claim of intervenor to the seized property. We think that judgment was correct and it is therefore affirmed.


text:
    No. 10,969
    Orleans
    LE CORGNE v. GARNER
    (October 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Chattel Mortgages— Par. 3.
    ' A chattel mortgage which describes the property to be hypothecated as “all furniture and effects located in the O.K. Storage and Transfer Co. at 1901 St. Charles Ave.”,' is fatally defective because lacking in proper description of property intended to be "mortgaged and the recordation of such description in the Mortgage Office will not serve as notice to third persons, as required by the Chattel Mortgage Act, 198 of 1918.
    2. Louisiana Digest — Chattel . Mortgages— Par. 3.
    The fact that an inventory was attached to the act containing a more detailed description, and reference made to such inventory in the act itself, though not in the recordation of the act in the Mortgage Office, will not save the situation. ' A description sufficient to identify the property should appear in the mortgage itself.
    Appeal from First City Court, Section “C”. Hon. W. V. Seeber, Judge.
    Action by Earl Le Corgne against Dan A. Garner, Jr.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Charles J. Rivet, of New Orleans, attorney for plaintiff, appellant.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Dan A. Garner, defendant herein, bought a Ford automobile and rented a home (2802 Palmer Ave.) To secure the vendor of the Ford he executed a chattel mortgage on the Ford and included his household furniture. He failed to pay for the Ford and neglected to pay his rent. The landlord (plaintiff herein) provisionally seized defendant’s household effects and the assignee of the Ford vendor intervened, claiming a superior privilege upon the furniture, because of the chattel mortgage. Defendant, attacked upon both sides, surrendered and we have only to consider the conflicting claims of the landlord and mortgagee. The issue narrows itself further to the question of whether the chattel mortgage was recorded, as required by law, to affect third persons. The only reference to the household furniture contained in the act of mortgage is the following:

“All furniture and effects located in the O.K. Storage and Transfer Co. at 1901 St. Charles Ave., an inventory of which is attached hereto and made part hereof.”

The inscription in the Mortgage Office reads as follows:

Book 1316, p. 596:

“Per Act before Wm. A. Wenck N P dated December 2nd 1925 Mr & Mrs Dan A Gardner Jr Mortgages unto Jos Delery One Ford Roadster Motor No. 9789054 4 Cy 22 H P and all furniture and effects located in the O K Storage & Transfer Co. at 1901 St. Charles Ave. to secure the sum of $457.60 purchaser executed one of said amount, dated even date payable at the automobile security corp nola, in 6 installments each for the sum of $76.25 until paid.
“Interest 8% per annum from maturity until paid. Attys fees. 25% Insurance to full of note.
“NEW ORLEANS, LA DECEMBER 9th 1925 12:20.
“Marcus Tully . . . CK.”

The law (Act 198 of 1918, Sec. 2, p. 373) requires that every chattel mortgage “shall be in writing, setting out a full description of said property to be mortgaged, so that same may be identified, * * *. In order to affect third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof shall be recorded in the office of the Recorder of Mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor is a resident.”

Section 4, which grants and ranks the lien of the chattel mortgages, provides:

“* * * every mortgage shall be a lien on the property mortgaged from the time same is filed for recordation, which filing shall be notice to all parties of the existence of such mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto.”

The recorded description of the mortgaged property, as we have seen, was “all furniture and effects located in the O.K. Storage and Transfer Co. at 1901 St. Charles Ave.”

Can this be considered as a “full description” of the property mortgaged “so that the same may be identified” as required by the law?

Our answer is in the negative. It is no description at all. Only the beginning of description. When the property was seized it was not in storage at all and consequently the reference to it as all furniture, etc., located in the O.K. Storage & Transfer Co. at 1901 St. Charles Ave. was not only deficient in description but misleading and inaccurate.

In Durel vs. Buchanan, 147 La. 804, 86 So. 189, it was held that a description of the mortgaged property as “all the contents, furniture, effects and articles of every kind, situated in the premises No. 843 St. Charles street, with the exception of such articles as the vendor desires to ' retain”, was not sufficient description, because “there is nothing in this description by which any part of the property may be identified, and the uncertainty is made more uncertain still by the exception”.

In Bank vs. Succ. of McCann, 151 La. 555, 92 So. 55, the court held “as to the alleged description ‘all of the property which the mortgagor owns and now located upon the two leases’ that is entirely insufficient to comply with the statute”.

Counsel says that the recorded description should have included the inventory, which was attached to the mortgage when presented to the Recorder of Mortgages, and that, for this omission, he can not be made responsible because the fault, if fault it be, was chargeable to the recorder.

It is sufficient in this connection to say that the description should have been in the act of mortgage itself and not attached thereto in the form of an inventory.

“It is clear that the full description, sufficient to identify the property and serve as notice to all parties, should appear in the written instrument itself, so that when recorded it will serve the purpose intended by the statute.”

Bank vs. Succ. of McCann (supra), 147 La. 555, 92 So. 55.

For the reasons assigned, the judgment appealed from is amended so as to deny to the Automobile Securities Corporation, intervenors, any right, title or interest in the property provisionally seized by plaintiff and dismissing its intervention at its cost.

In all other respects the judgment appealed from is affirmed.


author: JONES, J. CLAIBORNE, J.

text:
    No. 9,998
    Orleans
    MILLIKEN & FARWELL v. TAFT MERCANTILE COMPANY
    (May 9, 1927. Opinion and Decree.)
    (October 3, 1927. Opinion and Decree on Rehearing.)

      (Syllabus by the Court)

    1. Louisiana Digest — Judgment—Par. 36.
    A default judgment where the record does not show the entering of preliminary default is invalid, as issue was never joined.
    2. Louisiana Digest — Judgment—Par. 15;
    Execution — Par. 54.
    A seizure issued under a judgment by default without preliminary default is illegal and confers no privileges.
    3. Louisiana Digest — Judgment—Par. 123, 126.
    A final judgment by default obtained without a preliminary judgment by default is not an absolute nullity and cannot be attacked collaterally.
    ON REHEARING
    4. Louisiana Digest — Execution—Par. 41, 42.
    A judgment after its sale or transfer by the plaintiff may be executed in name of the original plaintiff.
    5. Louisiana Digest — Execution—Par. 80.
    It is not in the power of the original plaintiff to arrest the execution by an ex parte order to that effect
    6. Louisiana Digest — Execution—Par. 163.
    A purchaser at sheriff’s sale who has a privilege upon the thing sold superior to the seizing creditor has a right to retain in his hands the amount of his bid up to the amount of his claim.

      7. Louisiana Digest — Execution—Par. 54, 55.
    By his mere seizure the judgment creditor acquires a privilege on the property seized which entitles him to a preference over other creditors.
    8. Louisiana Digest — .Execution—Par. 175.
    The return on a sale made by the sheriff under a fi fa may be signed by his deputy.
    9. Louisiana Digest — Appeal—Par. 568.
    Pleas and issues which were not raised in the lower court and not passed upon cannot be raised on appeal.
    Appeal from the Twenty-fourth Judicial District Court, Parish of St. Charles. Kon. L. Robert Rivarde, Judge.
    Action by Milliken & Farwell against Taft Mercantile Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wm. B. Grant, of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler and R. J. Perkins, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This is a controversy between two seizing creditors as to priority of privilege on the proceeds of the sale of a certain judgment which the Taft Mercantile Company had secured against the L. A. Blouin Company.

To clarify the issue, it is necessary to outline briefly the preliminary steps leading up to the sale.

On January 29, 1921, Milliken & Farwell obtained judgment based on confession against the Taft Mercantile Company for four thousand six hundred eighty-three and 46-100 ($4683.46) dollars, with eight per cent interest from December 31, 1920, until paid.

On May 1, 1924, the Henry Lochte Company, Ltd., obtained a default judgment against the Taft Mercantile Company in the sum of two thousand one hundred and 23-100 ($2100.23) dollars, with legal interest from demand.

On April 30, 1924, the Taft Mercantile Company obtained judgment against the L. A. Blouin Co., Ltd., in the sum of one thousand nine hundred forty-four and 88-100 ($1944.88) dollars, with legal interest from November 16, 1918.

On June 16, 1924, by notarial act, the Lochte Company sold, with all legal warranties, to the Blouin Company for six hundred ($600.00) dollars, all its right, title and interest in the judgment which the Lochte Company had against the Taft Company.

On June 21, 1924, the Lochte Company, without notice to Taft Company, issued writ of fieri facias, seized and proceeded to advertise and sell at public auction, in satisfaction of its judgment, the judgment obtained by the Taft Company against the Blouin Company, which seems to have been the only asset of the Taft Company.

On July 10, 1924, before the sale of the judgment so seized by the sheriff could take place under the writ, execution was enjoined on various grounds by Attorney Robert J. Perkins, who had a privilege on the Blouin judgment under Act 124 of 1906 for his fee.

On July 10, 1924, Milliken & Farwell issued execution on their judgment against the Taft Company and seized the judgment exclusive of attorney’s fee, which the Taft Company had against the Blouin Company.

On July -25, 1924, the Blouin Company, as the assignee and subrogee of the Henry Lochte Company, presented to the judge a petition of intervention and third opposition in the Milliken & Farwell • case, alleging its acquisition of the aforesaid judgment of Henry Lochte Company vs. Taft Mercantile Company, the issuance of the prior writ of fieri facias and seizure thereunder; the illegal issuance of the ex parte preliminary injunction and particularly the lien and privilege granted by law to the first seizing creditor. An ex parte order was granted by the court recognizing the superior lien and privilege of the L. A. Blouin Company, owner of the judgment obtained originally by Henry Lochte Company, and the sheriff of the Parish of St. Charles was , ordered to take notice of the said order and advise all bidders at the sale of the rights of the L. A. Blouin Company. The sheriff accepted service of the petition and order of court. This petition was filed in St. Charles parish on August 2, the day of the sale.

This judgment, exclusive of attorney’s fee, was duly advertised under Milliken & Farwell’s writ of sale for cash, and on August 2, 1924, was adjudicated to the Blouin Company, as the last and highest bidder, for the sum of one thousand five and 0-100 ($1005.00) dollars.

In making his return, the deputy stated that the purchase price had been credited under order of court against the judgment and claim which the Lochte Company had against the Blouin Company.

On December 27, 1924, L. C. Yial, the sheriff of St. Charles parish, filed a motion setting forth that the judgment had been adjudicated for cash, and that the L. A. Blouin Co., Ltd., had failed to comply with its bid by payment of said sum in cash as required, and praying the court to declare the sale to Blouin null and void and to order the property readvertised for sale under the writ issued in behalf of Milliken & Farwell still held by him. The judge ordered the Blouin Company to show cause why this motion should not be granted on January 9, 1925.

On January 3, 1925, Milliken & Farwell filed a similar motion, asking that the return on the writ be set aside as null and void and the sale thereunder vacated, the property readvertised and sold under their writ of fieri facias of July 10, 1924. On this motion the judge again ordered the Blouin Company to show cause on January 9.

On this date the Blouin Company filed an answer to each motion in which they claimed priority of privilege on the property sold because they had made seizure at least fifteen days before Milliken & Farwell.

Subsequently the court recognized and maintained the return of the deputy sheriff allowing the Blouin Company, as adjudicatee, to take credit on the claim of the Lochte Company (purchased by the Blouin Company) against the Taft Company, instead of paying the adjudicated price ($1005.00), and dismissed both rules. The court dismissed the rule of the sheriff but no appeal was taken.

From judgment against them Milliken & Farwell prosecute the present appeal.

One of the grounds urged by Perkins for his preliminary injunction was that no preliminary default had ever been taken in the Lochte case and, as the “whole record” in that case was offered in evidence by the attorney of Blouin & Company to disprove that and the other charges, it is presumed that the record contains the entire proceedings of the court.

This record áhows that the Lochte. suit was filed on March 28, 1921, and that the corporation was served on March 29, 1921; that a judgment by default for full amount was rendered and signed on May 1, 1924.

Although this judgment orders that “the preliminary default entered herein be confirmed”, a close examination of the “whole record in the Lochte case”, which has been brought up in this record, fails to show that any motion for preliminary default was ever made or any preliminary default ever granted as required by Articles 311 and 544 of Code of Practice.

In the case of Adler, Goldman & Siegel vs. Wolff, 36 La. Ann. 169, Justice Bermudez on application for rehearing uses the following language:

“The statements in the briefs for a rehearing that the motion for a default was made and granted is not verified by the record. Where a motion is made for a default, it should be noted on the minutes of the court. It is true that there is found in the note of evidence mention of a verbal aplication for a default, but this is irregular and void. The law authorized the plaintiff, if the defendant do not appear, after the delay allowed, to take a judgment by default, which can be obtained by moving for it in court. It suffices that such judgment appear by a statement on the records of the court that the defendant has failed to appear. The law requires that all judgments, whether interlocutory, final or definitive, shall be correctly entered on the records, that is: the minutes of the court. The same rule must be observed in relation to all orders or mandates given by the court, as well as to all motions made by the parties to the suit. C. P. 310, 311, 533, 534, 538, 544; Caldwell vs. Glenn, 6 Rob. 9; Poultney’s Heirs vs. Cecil’s Executor, 8 N. S. 339; Begley vs. Morgan, 15 La. 164.
“The case cannot be considered at issue in the absence of a judgment by default regularly entered, or of an appearance by the defendant. The joining of issue is in fact the foundation of the suit, as citation is that of the action. C. P. 360, 359.”

In this holding he was ratifying and confirming the following decisions:

Washington vs. Hackett, 19 La. Ann. 146;

Riggin vs. Bank, 19 La. Ann. 373;

Braunsdorff vs. Fay & Marston, 18 La. Ann. 187;

Huntington vs. Bank, 18 La. Ann. 350;

Taylor vs. Littell, 21 La. Ann. 665;

Brown vs. Brown, 21 La. Ann. 461;

Knight vs. Knight, 12 La. Ann. 60.

As the record fails to show the motion and entry of the preliminary default, the case was never at issue and no valid judgment was ever rendered, and consequently the pretended seizure was illegal and invalid.

The Blouin Company contends that the validity of the Lochte judgment was not properly before the court for three reasons:

(1) Because that point was not specifically raised by Milliken & Farwell in their motion to set aside the sale.

(2) Because the preliminary injunction was never tried on the merits.

(3) Because injunction was abandoned by Perkins, when he subsequently attempted, on October 2, 1924, to collect his fee from the surety on the sequestration bond in the case of Taft & Co. vs. L. A. Blouin Company.

The first reason does not seem sound because Milliken & Farwell in their motion to set aside the sale allege that the seizure and sale had been enjoined amongst other grounds for the reason that the Lochte Company had no interest in said judgment or in the seizure because the judge had on December 17, 1924, signed an order dismissing the suit. (Such order had a retroactive effect to June 21, 1924, the date of seizure.)

Furthermore, the attorney for Blouin & Company had raised the issue of the validity of his seizure in his intervention and third opposition in this case filed on July 25, 1924, and also in his answer to the two rules.

To sustain the allegations of his intervention and of his answers he introduced in evidence “the whole record in the Lochte case”. When that record is used against him as a part of the proof of the crucial issue raised by him, it is entirely too late after judgment to urge that the whole record must not be considered. The “whole record” must be considered, the favorable as well as the unfavorable parts, and he must stand or fall thereby.

The fact that the Perkins preliminary injunction has never been tried on the merits tends to support the position of plaintiff in rule, for if it had no merit presumably his opponent would have caused it to be dissolved.

The attempt by Perkins on October 2, 1924, to collect his attorney’s fee from surety on sequestration bond in the other case does not necessarily constitute an abandonment of his injunction ¡proceeding in this case, but even if it did, Blouin & Co. could not profit thereby, because in their petition of intervention they had challenged the rights of Milliken & Farwell, not those of Perkins, and the issue between them was thereby made entirely independent of any claim of Perkins.

Although the various other grounds urged against the validity of the judginent and the seizure in the injunction proceedings are properly before this court, we do not find it necessary to pass on them’, as the failure of the record to show motion for and entry of preliminary default invalidates the judgment and the seizure.

For the above reasons the judgment is reversed, and it is now ordered, adjudged and decreed that the sale made by Layoux Gassen, deputy sheriff of St. Charles parish, under a writ of fieri facias issued in this case on July 10, 1924, be vacated and annulled and the return on said writ be cancelled.

It is now ordered, adjudged and decreed that the property be readvertised and sold under the writ of fieri facias issued on July 10, 1924.

ON REHEARING

CLAIBORNE, J.

This suit is a contest over the proceeds of a sheriff’s sale.

The facts are as follows:

On May 1, 1924, in the suit of Henry Lochte Co., Ltd., vs. Taft Mercantile Co., No. 980 of the District Court for the Parish of St. Charles, judgment was rendered, on confirmation of default, in favor of the plaintiff and against the defendant for the sum of $2100.23 with interest and costs. The judgment reads as follows:

“It is ordered, adjudged and decreed that the preliminary default entered herein be and the same is hereby confirmed, and accordingly it is ordered that there be judgment herein in favor of the plaintiff, Henry Lochte Co., Ltd., and against the defendant, Taft Mercantile Co., in the full sum of two thousand one hundred and 23-100 ($2100.23) dollars, with legal interest from judicial demand until paid, and all costs of this suit.”

By a notarial act dated June 16, 1924,' the Lochte Co. sold to L. A. Blouin Co., Ltd., the above judgment against the Taft Mercantile Co. for the price of $600.00.

II.

On April 30, 1924, the Taft Mercantile Co. had obtained a judgment against the L. A. Blouin Co. for $1944.88 and interest.-

III.

On June-21, 1924, the L.-A. Blouin Company, transferees of Lochte, issued a fi fa in the suit of Lochte & Co. vs. Taft Mercantile Co., and caused to be seized “all the right, title and interest of the Taft Mercantile Co. in the suit No. 871, entitled Taft Mercantile Co. vs. L. A. Blouin Co., Ltd., and particularly the judgment rendered therein dated April 30, 1924, for the sum of $1944.88,” and caused the same to be advertised for sale.

IV.

On July 10, 1924, Robert J. Perkins, attorney-at-law, filed a petition in the above suit of Taft vs. Blouin; he alleged that in December, 1918, he had been employed by the Taft Mercantile Co. to prosecute a claim against the Blouin Co. amounting to about $12,000; that he made demand upon the Blouin Co. with the result that in January, 1919, they paid the Taft Mercantile Co. about $10,000 on account, leaving a balance due of $1944.88, for which balance the said Perkins, on July 2, 1919, filed suit and obtained judgment on April 30, 1924, with five per cent interest from November 16, 1918; that he received no. fee at the time of his employment or thereafter; that under Act 124 of 1906 he has a privilege on said judgment for the amount of his fee; “that the understanding with the late George Lorio was that plaintiffs’ fee was to be obtained from the judgment when it was paid; that thereafter, to-wit: on July 8, 1924, your petitioner reduced to writing the understanding with the Taft Mercantile Co. in which it is provided that plaintiff would receive fifty per cent of the amount collected under said judgment”; that on June 21, 1924, the Henry Lochte Co. took out a writ of seizure against the Taft Mercantile Co. predicated upon a judgment rendered in their favor against the Taft Co. on May 1, 1924; and have seized the judgment in favor of the Taft Co. against L. A. Blouin Co. and 'have advertised the same for sale for July 12, 1924; that the judgment of the Henry Lochte Co. against the Taft Mercantile Co. is null and void for the following reasons:

1st. That no preliminary default is shown in the record or in the judgment to have been obtained.

2nd. That no note of evidence appears to have been taken on the confirmation of the default.

3rd. That no notice of judgment was served on the Taft Mercantile Co.

4th. That said judgment is not final and executory under Act 45 of 1890 until ten days after the adjournment of the court for the session; and

5th. That this court has this day adjourned for the term. Plaintiff Perkins further alleged irreparable injury if the sale was allowed to proceed; that the Henry Lochte Co. has no further interest in the judgment, having parted with its interest in June, 1924. He prayed for a preliminary injunction to enjoin the sale of the judgment advertised and any further proceedings in the cause; for citation on the sheriff and on Henry Lochte Co. and that the injunction be made perpetual.

On October 13, 1924, Henry Lochte & Co., Ltd., excepted to the above petition and to the injunction, on the ground that the bond of $250 upon which the injunction was issued was insufficient and in the absence of a larger bond that the injunction should be dismissed.

On October 28, 1924, the exceptions were ordered dismissed, granting counsel for L. A. Blouin Co. permission to intervene.

On October 31, 1924, the L. A. Blouin Co. intervened.

They alleged that by an act dated June 16, 1924, above mentioned, they purchased from the Henry Lochte Co. all their rights in a judgment in their favor for $2100.23 against the Taft Mercantile Co. rendered May 1, 1924; that by virtue of said judgment they seized the rights of the Taft Mercantile Co. in a judgment in their favor against L. A. Blouin and advertised the same for sale, when the said Robert J. Perkins enjoined the sale; they admitted that the said Robert J. Perkins obtained a judgment for $1944.88, but they denied all the other allegations in his petition and prayed that the injunction be dismissed with damages.

The case on the above petition of Robert J. Perkins and on the intervention of L. A. Blouin does not seem to have been tried and no judgment was rendered thereon nor appeal taken. Therefore neither the case nor the issues thereon are before us.

Y.

On January 29, 1921, plaintiffs herein, Milliken & Farwell, obtained judgment against the ' Taft Mercantile Co. for $4683.45 and interest; upon this judgment on July 10, 1924, on the same date as the Perkins injunction, they issued a fieri facias and seized “all the right, title and interest, exclusive of attorney’s fees, of the Taft Mercantile Co. against the L. A. Blouin Co., Ltd., in the matter No. 871 of the docket of the Twenty-eighth Judicial District Court in and for the Parish of St. Charles entitled Taft Mercantile Co. vs. L. A. Blouin Co., and more particularly the judgment rendered in said matter dated April 30, 1924, for the sum of $1944.88 with 5% interest thereon from November 16, 1918, being the same judgment previously seized by Lochte & Co., Blouin transferee, and advertised the same for sale for August 2, 1924.

On July 25, 1925, the L. A. Blouin Co., as transferees of Henry Lochte Co., intervened by a petition in which they set up the judgments in favor of Lochte against the Taft Co., their purchase of the same, the issuance by them of a fi fa, under said judgment, and their prior seizure of the judgment of the Taft Co. against Blouin, and the injunction taken out by Robert J. Perkins; they further alleged that by virtue of said prior seizure they had a privilege on said Taft-Blouin judgment superior to that of Milliken & Farwell, and were entitled to be paid by preference over them; that under the law the purchaser of the judgment seized and sold would have a right to retain in his hands the amount of the privilege superior to that of the seizing creditor to be paid to him; and that the sheriff should be notified of plaintiff’s superior privilege in order that he might inform the bidders of the same. Blouin & Co. obtained an order to that effect.

On August 2 the judgment was adjudicated to the L. A. Blouin Co., Ltd., for $1005, and the sheriff in his return stated that the said amount, under order of court, was duly credited against judgment "and claim of the Henry Lochte Co., Ltd., vs. Taft Mercantile Co., Ltd., No. - — —, which judgment was purchased by the L. A. Blouin Co., Ltd.

On December 23, 1924, the sheriff filed an amended return in which he alleged all the facts above related, and he further alleged that no payment had been made by the adjudicatee and asked permission to readvertise the property seized and for an order declaring the sale null and void.

On January 3, 1925, following, plaintiffs herein, Milliken & Farwell, filed a rule on the Taft Mercantile Co. and on L. A. Blouin Co. and Henry Lochte Co. to show cause why the return in the fi fa signed by Layons Gassen on August 4, 1924, should not be set aside as null and void and tbe sale thereunder vacated and the property seized readvertised and sold for the following reasons, as we gather from the rule:

1st. That Henry Lochte Co. had no right, title or interest in said judgment.

2nd. That on December 17, 1924, an order was signed by the judge, dismissing the suit of Henry Lochte vs. Taft Mercantile Co.

3rd. That no money had been paid by the adjudicatee.

4th. That the sheriff’s return is signed by Layous Gassen, deputy sheriff, while the sale was conducted by the sheriff himself, Leon C. Vial.

L. A. Blouin Co. answered the petition of Sheriff Vial by alleging that they issued a fi fa in the suit of Henry Lochte Co. vs. Taft Mercantile Co. and thereunder seized the judgment of the Taft Co. against the Blouin Co., which seizure was enjoined by Robert J. Perkins, all as above set forth; that subsequently Milliken & Farwell seized the same judgment; that L. A. Blouin had a prior privilege on said judgment by virtue of their prior seizure; that they (purchased said judgment at the sheriff’s sale and under the law they had a right to credit their bid with their judgment, and by virtue of said judgment and prior seizure and adjudication they have become the owners of said judgment of Taft against the Blouin Co., and they prayed that the sheriff’s rule be dismissed and to be recognized as the owners of said judgment.-

To the same effect, in a more extended form, Blouin & Co. answered the plaintiffs’ rule reiterating all the proceedings leading up to the sale and asserting the validity thereof.

On the trial of the rule the Taft Co. submitted the case on the record.

On February 2, 1925, judgment was rendered on the petition of the sheriff and on the rule taken by Milliken & Farwell on January 3, 1925. It reads as follows:

“It is ordered, adjudged and decreed that the rule taken herein by Milliken & Farwell be and the same is hereby dismissed with costs. And it is further ordered, adjudged and decreed, that the L. A. Blouin Co., Ltd., be and it is hereby recognized as the owner of all of the right, title and interest of the Taft Mercantile Co. in the judgment obtained against the L. A. Blouin Co., Ltd., No. 871 of the docket of the late Twenty-eighth Judicial District Court, in and for the Parish of St. Charles; and it is further ordered, adjudged and decreed that the return of the sheriff of the Parish of St. Charles on said writ be and the same is hereby recognized as a good and valid return, and it is further ordered, adjudged and decreed that the rule of the sheriff of the Parish of St. Charles filed in these proceedings on the 27th day of December, 1924, requesting permission of the court to readvertise the property seized and described in said rule, which rule was taken up and submitted with the above rule, be and the same is refused and denied.”

From this judgment plaintiffs herein, Milliken & Farwell, have taken an appeal.

We will examine the objections made to the validity of the sale in the order presented by the rule.

1st. That the Henry Lochte Co. had no right, title or interest in the judgment executed by L. A. Blouin Co.

It is true that the Lochte Co. had sold their interest in the judgment to L. A. Blouin. But that did not prevent Blouin from executing the judgment in the name of Henry Lochte Co.

It has long been recognized good practice in this state that a judgment after its sale transfer may be executed in the name of the original plaintiff. King vs. Dwight, 3 Rob. 2; State vs. Williams, 8 R. 261; Blondin vs. Christophe, 13 La. Ann. 324; Walker vs. Villavaso, 26 La. Ann. 42; 34 C. J. 644; 23 C. J. 311.

In Zibilich vs. Rouseo, 157 La. 943, 103 So. 269, the court said:

“A judgment after its transfer may be executed in the transferer’s name.”

2nd. On October 25 and December 17, 1924, long subsequent to the sale of the judgment by Henry Lochte Co. to Blouin, an attorney purporting to act in the name of the Henry Lochte Co. procured from the judge an order, cancelling their name from any proceeding in the case of Henry Lochte Co. vs. Blouin. This petition and order were ex parte and, of course, binding upon no one except Lochte & Co. If under the law Blouin had a right to execute the judgment in the name of Lochte, neither Lochte’s petition nor the judge’s ex parte order could divest him of a vested right.

3rd. L. A. Blouin & Co., claiming a superior privilege over the Milliken & Far-well, had a right to retain their bid in their hands up to the amount of their claim.

C. P. 679:

“When there exists a mortgage or privilege on the property put up for sale, the sheriff shall give notice before he commences the crying that the property is sold subject to all privileges and hypothecations of whatsoever kind they may be with which the same is burdened and with the condition that the purchaser shall pay in his hands whatever portion of the price tor which the property shall be adjudicated, which may exceed the amount of the privileges and special mortgages to which such property is subject.”

C. P. 683:

“But if there exist on the property any privileges or special mortgages in favor of other persons than the judgment creditor and which are preferred to him, the sheriff shall announce that the purchaser shall be entitled to 1 retain in his hands out of the price for which the property was adjudictated, the amount required’ to satisfy the privileged debts and special hypothecations to which the property sold was subject, but he shall be bound to give his obligation for the surplus of the purchase money, if there be any, and subscribe his obligation at twelve months’ credit with security as is stated above.”

C. P. 706:

“But when the property sold is subject to privileges or special mortgages in favor of other persons besides the suing creditor, the sheriff shall require from the purchaser and he shall be compelled to deliver to the creditor, whether the sale be made for ready money or on credit, only the surplus of price beyond the amount of the privileges or special mortgages, if there be any surplus.”

The purchaser must retain in his hands the amount of privileges superior to the seizing creditor. 1 N. S. 603; Firemen’s Ins. Co. vs. Gillingham, 1 Rob. 305; First Municipality vs. Orleans Theatre Co., 2 Rob. 214; McRae vs. Chapman, 10 Rob. 65; Perry vs. Holloway, 10 Rob. 110; Mackee vs. Caires, 1 N. S. 603; Mullen & Co. vs. Scott, 9 La. Ann. 173; Sturgs vs. Taylor, 15 La. Ann. 285; Morris vs. Executors of Cain, 39 La. Ann. 712; Citizens Bank vs. Webre, 44 La. Ann. 336; Alford vs. Montejo, 28 La. Ann. 593; Ash vs. Southern Chemical Co., 107 La. 313, 31 So. 656; Guaranty Bank vs. Scott, 3 La. App. 673.

In Bacas vs. Hernandez, 31 La. Ann. 85, the court, commenting upon the above articles, said:

‘.‘These provisions are very clear and unmistakable. He (the purchaser) is not only permitted to retain, but he is required to retain in his hands the amount of the liens in advance of that of the seizing creditor.” Cummings vs. Erwin, 15 La. Ann. 289; 1 R. 305.

The syllabus of the case is as follows:

“The sheriff is not authorized to receive from the purchaser of property at a judicial sale the amount of the mortgage or privilege debts which rank the claim' of the seizing creditor, and hence the sureties of the sheriff cannot be held for the amount of such debts received and not accounted for by the sheriff.” Affirmed in Morris vs. Cain, 39 A. 735. See also Puertheux Co. vs. Succession of Dillie, 18 La. Ann. 65; 1 H. D. 635.

If it is the duty of the purchaser to retain in his hands the amount of privileges accruing to third persons superior to the seizing creditor, it is also his right to retain in his hands the amount of his superior privilege when he becomes the purchaser, for why should he go to the empty formality and expense • and risk of paying the price which is to be immediately refunded to him? Such is the general jurisprudence.

In Blain vs. Taylor, 25 La. Ann. 144, the court said:

“Where the plaintiff’s mortgage was in existence at the time of the sheriff’s sale, and the mortgaged property was adjudicated to him, he had the right to retain the purchase money up to the amount of his debt, and the title to the property should have been made to him.”

Affirmed in Copes vs. Guilbeau, 34 La. Ann. 1032 (1037).

The purchaser of property at a succession or insolvent sale may retain in his hands the amount of a mortgage in favor of a third person or of himself. Hobson vs. Woolfolk, 23 La. Ann. 384; Williams vs. City of New Orleans, 23 La. Ann. 507-508; 2 H. D. 1501.

C. C. 1343 (1265):

“Any heir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and he is not obliged to pay the surplus of the purchase money over the portion coming to him, until this portion has been definitively fixed by a partition.”

C. C. 2625 (2603):

“Heirs may purchase the property of the succession to the amount of their proportion, and are not obliged to pay the purchase money until a liquidation is hád, by which it is ascertained what balance there is in their favor or against them.”

It cannot be disputed that the Blouin Co. had a privilege by virtue of their seizure under the Lochte judgment. C. P. 722; 1. H. D. 623 B-5: “Under Art. 722 C. P. the creditor acquires by the mere seizure a privilege on the immovable or movable seized, which entitles him to a preference over other creditors.” Succession of Dorville, 30 La. Ann. 133; O’Hara vs. Booth, 29 La. Ann. 817; Payne & Harrison vs. Randon, 10 La. Ann. 349; Gleason & McManus vs. The Sheriff, 20 La. Ann. 266; Arick vs. Walsh & Boisseau, 23 La. Ann. 605; Huppenbauer vs. Durlin, 24 La. Ann. 360; Loeb & Co. vs. Blum, 25 La. Ann. 232.

4th. The sheriff’s return of the writ certifies that the judgment was seized, advertised and sold to L. A. Blouin, Ltd. The illegality charged is that the sheriff, Vial, made the sale while the return is signed by his deputy, Layons Gassen. We see no objection to this action. There is no evidence that Vial made the sale. But if there was there is no charge that the return is not true; on the contrary, the sheriff himself recites all the facts connected with the seizure, advertisement and sale in his petition of December 23, 1924, and prays for an order to declare the sale null and for permission to readvertise the property sold.

But the plaintiffs herein, in their rule to set aside the sale, themselves allege “that the said judgment was duly advertised for sale for cash on the spot and cried out by the sheriff on August 2, 1924, and was bid in by the L. A. Blouin Company, Ltd., through the Hon. Conrad A. Buchler, its attorney, for $1005, etc.”

Plaintiffs cannot now deny the sale to L. A. Blouin Co.

VI.

Upon the argument of the case counsel for appellants dwelt upon two points of illegality in the judgment of Lochte & Co. and in the execution thereof.

The first was that no preliminary default is shown by the record or in the judgment to have been taken, and the record shows that the judgment was prematurely executed.

Pretermitting the fact that this statement, as to the default, is. contradicted by the judgment itself, we must decline to pass upon those points for the reasons that no such objections were made in the rule taken by the plaintiffs herein, and none passed upon by the trial judge, a'nd consequently they are not before us. It is true that those objections were raised in the petition for an injunction filed by Robert Perkins, but with that case we have nothing to do as the injunction was never tried, no judgment was ever rendered therein; and consequently no appeal.

This court cannot consider, on appeal, questions that have not been passed upon by the District Court, 131 La. 196 (203).

Pleas and issues not raised in the lower court cannot be raised on appeal. Lafton’s Executrix vs. Gravier, 1 N. S. 243; Budworth vs. Hunter, 9 R. 256; Montgomery vs. Barrow, 19 La. Ann. 169; Slocomb vs. Williams, 23 La. Ann. 245; Theodore vs. New Orleans Mut. Ins. Assn., 28 La. Ann. 917; Verret vs. Bonvillian, 32 La. Ann. 29; Jackson vs. Michie, 33 La. Ann. 731; Succession of Rhodes, 39 La. Ann. 473; State ex rel. Hibernia Nat;l Bank vs. Judges, 50 La. Ann. 28, 22 So. 972; De Grilleau vs. Boehm, 106 La. 472, 31 So. 74; Nieth Lodge No. 21, I.O.O.F., vs. Vordenbaumen, 111 La. 214, 35 So. 524; Bonnin vs. Town of Crowley, 112 La. 1025, 36 So. 842; Succession of Turgeau, 130 La. 650, 58 So. 497.

“It does not appear whether the district judge ever passed upon the exception to the mode of citation, therefore we do not pass upon it.” McAlpin vs. Jones, 10 La. Ann. 552 (553).

Nor can the judgment be attacked collaterally.

In the case of Anheuser vs. McGowan, 49 La. Ann. 630, 29 So. 766, defendant had accepted service of petition and citation on January 20; default was entered January 25, and judgment rendered February 7. A creditor of the defendant attacked the judgment on the ground “that it was an absolute nullity because it was rendered on a default prematurely taken”. The court denied relief and said:

“A judgment cannot be impeached in any collateral proceeding on account of errors or irregularities not jurisdictional. In our judgment the premature entry of default is not an illegality going to the jurisdiction.”

In this court Judge Martin, for the court, held that a defect in the proceedings occasioned by the want of a judgment by default was not an absolute nullity. Seymour vs. Cooley, 9 La. 72-79.

It is therefore ordered that our previous opinion and decree herein rendered be avoided and set aside, and it is now ordered that the judgment of the District Court rendered herein on' February 2, 1925, be affirmed, costs of appeal to be paid by plaintiffs.

I concur in above opinion on the authority of Seymour vs. Cooley, 9 La. 72, Anheuser vs. McGowan, 49 La. Ann. 630, and Lindquist vs. Maurepas Land Co., 112 La. 1030.

W. CATESBY JONES, Judge.


author: JONES, J.

text:
    No. 10,924
    Orleans
    ST. ANGE v. CARONDELET REALTY CO.
    (July 14, 1927. Opinion and Decree.)
    I October 3, 1927. Rehearing Refused.)
    (November 29, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Judgment—Par. 190, 215.
    A judgment of the Supreme Court contradictorily obtained, fixing the status of parties as the legitimate child and the surviving widow of deceased, is a judgment in rem, which cannot be collaterally attacked.
    Appeal from Civil District Court Division “D”. Hon. Porter Parker, Judge.
    Action by Albertine Aubert St. Ange, individually and as tutrix, against Carondelet Realty Co., et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Ernest J. Robin, of New Orleans, attorney for plaintiff, appellee.
    F. W. Gaudin, of New Orleans, attorney for intervenor.
    J. Zach Spearing, of New Orleans, attorney for exceptor, appellant.
   OPINION

JONES, J.

Plaintiff, as widow and as tutrix of her minor child, sued defendant for compensation for the death of the deceased husband and father.

Defendant denied the marriage of plaintiff to deceased and the legitimacy of the minor child.

The trial court gave judgment for plaintiff. and defendant has appealed.

' Plaintiff was recognized as widow in community and her minor child, Regina Delorita St. Ange, was recognized as the sole and only heir of the deceased, Joseph Reginald St. Ange, in proceedings entitled Succession of Joseph Reginald St. Ange, No. 152,107, Civil District Court, and in these capacities they were sent into possesion of all the property left by deceased by judgment read and signed on April 14, 1924.

Plaintiff was appointed tutrix of the minor daughter in proceedings No. 150,993, Civil District Court.

On July 22, 1924, Clara St. Ange, wife of Remy Despeinasse; Almeda St. Ange, wife of Gus Boswell, and Herminia L. St. Ange, wife of Oscar Doucet, alleging themselves to be the sisters of the deceased, filed a petition of intervention in the succession proceedings, No. 152,107, in which they alleged that Albertine Aubert St. Ange and their brother were never married; that the judgment recognizing her as widow in community and the minor daughter as /the sole heir was null and void, because it was obtained upon fraudulent representations. They prayed that they be recognized as the sole heirs of the deceased and entitled as such to a one-third interest each in his estate.

Albertine individually and as tutrix of her minor daughter, excepted to this petition of intervention upon three grounds:

(1) Want of capacity in petitioners to sue or stand in judgment.

(2) No right or cause of action.

(3) Vagueness.

Thereafter, Henry J, Goins, claiming to be a legitimate nephew of the deceased, filed a similar petition of intervention, to which similar exceptions were filed. Later all exceptions were overruled and the case was tried upon the issues above set forth.

The lower court decided in favor of intervenors and appeal was taken to the Supreme Court, which, on June 26, 1926, reversed the lower court and dismissed the petitions of intervention and reinstated the original judgment, which recognized Albertine as the widow in community and the minor daughter as the sole and only heir of the deceased and the owner of the estate, subject to the usufruct of the widow.

In the course of the opinion the Supreme Court says:

“The sole question involved herein is whether or not appellant was the wife of deceased.”

It then proceeds to discuss and analyze the evidence and to decide the case on the merits as above outlined, though it does consider the exceptions of capacity to the extent of saying that petitioners had by no means proved their own legitimacy. The “ratio decidendi” was the well-established rule in this state that marriage is presumed when a man introduces a woman as his wife, calls her his wife and lives with her publicly as such.

On the trial of this case, after proving the accidental death, the salary earned, etc., plaintiffs offered in evidence the entire record in proceedings No. 152,107, particularly the judgment sending the widow and her child in possession and the decree of the Supreme Court just outlined. Defendants objected to this record on the ground that the judgment was “ex parte and res inter alios acta,” but the court said: “I will let the' objection go to the effect.”

Defendant then proceeded to introduce over the objection of plaintiff testimony and documents tending to show that the parties had never been married, largely if not entirely the same evidence, which had been held insufficient to sustain the identical issue by the Supreme Court.

The sole issue before this court is whether defendant can collaterally attack in a suit between different parties a final judgment fixing the status of parties which has been contradictorily obtained in the highest court of the state.

In Bonella et als. vs. Maduel et als., 26 La. Ann. 112, a case on all fours with the present, the Supreme Court held that a judgment fixing status was not a judgment “inter partes”, but a judgment in “rem”, and evidence of the facts adjudicated against the world.

In that case the defendant offered in evidence the petition in the case entitled: Succession of Jose Maria Caballero, and the judgment of the Second District Court and of the Supreme Court decreeing her to be the legitimate child of the deceased. The plaintiff objected on the ground that they were not bound by the judgment, not being parties to the suit.

The Supreme Court in maintaining the decision of the trial judge, who overruled the objection, reached the decision above set forth.

See also State ex rel. Garvis vs. Judge Twenty-second Judicial District Court, 33 La. Ann. 768.

Smith vs. Nelson, 121 La. 170, 46 So. 200.

Succession of Fortier, 51 La. Ann. 1572, 26 So. 554.

Glover vs. Heirs of Dole, 1 Rob. 130.

Haddock vs. Haddock, 201 U. S. 562.

The defendant in his supplemental brief refers us to Succession of Lampton, 35 La. Ann. 419, where the Supreme Court, without referring to the decision in the Bonella case quoted above, permitted certain Kentucky creditors of the Succession of Edw. Lampton who had been dispossessed of certain lands in Kentucky by decree of the Kentucky Supreme Court, holding the daughter, Julia Lampton of Edw. Lampton, illegitimate, to oppose the account of Julia Lampton’s executor.

In that case the executor had excepted to the opposition on the ground that Julia Lampton had been recognized as the sole heir by the District Court of Plaquemines Parish in the Succession of Edward Lampton.

In referring to this decree of the Plaque-mines court, the Supreme Court of Louisiana uses the following language:

“* * * the experts order, recognizing the mother and daughter as entitled to the estate and putting them in possession thereof, cannot form res judicata as to anyone. It lacks the essential elements for such plea. It was made in a proceeding, not a suit in its legal sense. There was neither proper parties nor issue joined. It was made without notice to anyone, without proof, and without hearing. Baillio vs. Wilson, 8 Mart. N. S. 348; Sue. Dunford, 1 La. Ann. 92; Marchand vs. Gracie, 2 La. 147; Gillespie vs. Day, 14 La. 289; Verret vs. Aubert, 6 La. 353. The order is prima facie evidence of their capacities as widow and heir, but their recognition cannot preclude other heirs nor creditors from showing the contrary. Glover vs. Doty, 1 Rob. 13. The transcript of the proceedings of the Plaquemines probate court in Edward S. Lampton’s Succession, therefore, prove rem ipsam, and nothing more. Remy vs. Municipality, 8 La. Ann. 27; Wells on Res Ad judicata, Sec. 14.”

In other words, the basis of the decision was the fact that the order in the Succession of Lampton was purely ex parte, without notice to anyone and without joining issue.

The decree of the Supreme Court, referred to above, in the Succession of St. Ange, was rendered after a bitter contest, where all the purported heirs were before the court and where issue was joined on the very point in contest here, namely as to the legitimacy of the widow and child of the deceased.

Defendant also refers us to the Succession of Jos. Lorenz, 41 La. Ann. 1091, 6 So. 886; Dalton vs. Wickliffe, 35 La. Ann. 355, and Succession of Cahunburg, 34 La. Ann. 21, but in each of these cases the judgment was purely ex parte, without notice and without joining issue.

Defendant also refers to the case of Gajon vs. Patout, 135 La. 155, 65 So. 16, in which title to real estate was involved, and to the case of Smith vs. Little Pine Lumber Co., 150 La. 720, 91 So. 165, in which priority of privilege on a motor truck was involved. In both these cases the Supreme Court held that a person, is not bound by a judgment determining title to property claimed by him where he was not a party to the action.

We do not consider these decisions controlling, where a question of status is involved, and where that status has been fixed by the highest court of this state after prolonged litigation.

In Ennis vs. Smith, 14 Howard Reports, p. 430, the U. S. Supreme Court said:

“The decree of the department of Gradno is an exemplification of that made on the 7th of May, 1843, in the case of the heirs of Kosciusko, and contains the genealogical chart of the descendants, his sisters. It is not a judgment inter partes, but a foreign judgment in rem and is evidence of the facts adjudicated against the world.”

"This case, the Bonella case, and others cited above, seem to us controlling, for litigation must end.

For above reasons the judgment is affirmed.