First Nat. Bank & Trust Co. of Vicksburg v. Drexler

• Decision Date: 11 December 1936
• Docket Number: 5326
• Citation: 171 So. 151
• Parties: FIRST NAT. BANK & TRUST CO. OF VICKSBURG v. DREXLER
• Court: Court of Appeal of Louisiana — District of US

171 So. 151

FIRST NAT. BANK & TRUST CO. OF VICKSBURG v. DREXLER

No. 5326

Court of Appeal of Louisiana, Second Circuit.

December 11, 1936

Hudson, Potts, Bernstein & Snellings, of Monroe, for appellant.

Thompson & Thompson, of Monroe, for appellee.

OPINION

HAMITER Judge.

The parties litigant in this proceeding are nonresidents of the state of Louisiana. Plaintiff is a national banking corporation, domiciled and doing business in Vicksburg Miss., while defendant is a resident of Houston, Tex. The suit is on a promissory note. Jurisdiction of defendant is sought by means of a writ of attachment.

According to the allegations of the petition, defendant's uncle whose name was identical with that of defendant, died in Franklin parish, during the month of September, 1935, leaving a large estate. The will of said decedent was probated in the district court of that parish, and a testamentary administration of his succession followed. Mrs. Katie Lum, of Vicksburg, Miss., and Mrs. Eula Trezevant, a resident of Richland parish, qualified as executrices of the estate. Defendant Drexler possessed an undivided one-eighteenth interest in such succession, by reason of his being a testamentary heir and legatee.

Under the above-mentioned writ of attachment, plaintiff attempted to seize and attach defendant's said succession interest. The procedure resorted to for the effecting of that seizure was as follows:

1. Curators ad hoc were appointed to represent the defendant Drexler and the executrix, Mrs. Katie Lum, both of whom were nonresidents of this state.

2. Service of the attachment and citation was made on the defendant by affixing copies of same on the front door of the courtroom where the district court is held in Franklin parish, and also by delivering copies thereof to the curator ad hoc appointed to represent him.

3. Notice of seizure under the writ of attachment was given the defendant by posting upon the courtroom door and by service on his curator ad hoc.

4. Copies of the original petition and notices of seizure were served on the executrix, Mrs. Katie Lum, through her curator ad hoc, and on her coexecutrix, Mrs. Eula Trezevant, by means of personal delivery.

Defendant Drexler and the two above named executrices filed pleas to the jurisdiction of the trial court. These were sustained, after due hearing, and plaintiff's suit was dismissed at its cost. This appeal resulted.

It is contended that the court was without jurisdiction for the reason that:

1. The law of Louisiana does not accord the privilege of attachment proceedings to nonresident creditors.

2. No attachment can legally issue against a succession or against succession property.

3. Jurisdiction in this case is dependent upon the actual and physical seizure of property under the writ of attachment, and no such seizure has been made.

The first above-mentioned contention must be held to be without merit under the authority of Act No. 220 of 1932, and the case of Jackson State Nat. Bank of Jackson, Miss. v. Merchants' Bank & Trust Co. of Jackson, Miss., 177 La. 975, 149 So. 539, 540. The above-mentioned act provides: "That in all suits instituted in any of the courts of this State in which the demand is for a money judgment and the defendant is a non-resident of this State, or when the defendant is not domiciled in this State, whatever may be the nature, character or origin of the plaintiff's claim, the plaintiff shall have the right to sue out a writ of attachment against the defendant's property, whether the claim be for a sum certain or for an uncertain amount, and whether the claim be liquidated or unliquidated, upon making affidavit and giving bond as now required by law in suits against non-resident defendants, provided that the provisions of this Act shall not apply in cases in which the defendant has a duly appointed agent in the State of Louisiana upon whom service of process may be made." Section 1. It is to be noticed that the writ of attachment is authorized by the provisions of such statute, "whatever may be the nature, character or origin of the plaintiff's claim," and that a nonresident plaintiff is not therein denied the use of said process. In the Jackson Case, supra, plaintiff caused a writ of attachment to issue, and certain funds belonging to defendant were seized thereunder. The suit involved a demand for a money judgment. Both parties to the proceeding were nonresidents of Louisiana. Defendant excepted to the jurisdiction of the trial court on the ground that both plaintiff and defendant were domiciled in Mississippi; that neither was engaged in doing business in this state; and that the cause of action set forth in the suit arose entirely in the state of Mississippi. The Supreme Court upheld the trial court's jurisdiction of the case, and overruled the exception. In the course of the court's opinion, written by Mr. Justice Overton, the provisions of Act No. 220 of 1932 were quoted and interpreted, and the following was said:

"The crucial clause in the foregoing act to be considered is the clause enacting that, "In all suits (3)5C in which the demand is for a money judgment and the defendant is a nonresident of this State, or when the defendant is not domiciled in this State, whatever may be the nature, character or origin of the plaintiff's claim, the plaintiff shall have the right to sue out a writ of attachment. (3)5C'

"This clause, we think, couched, as it is, in language which approaches being all-inclusive, gives a plaintiff a right to attach, in the courts of this state, on a claim or cause of action for money against a non-resident corporation, or against one not domiciled and not represented in this state by an agent for service of process."

Although no specific comment is offered in the aforementioned opinion regarding the question presently under discussion, in view of the issues raised under the exception and of the conclusion reached in the case, it is obvious that the Supreme Court was of the opinion that the process authorized by the above act was available to all plaintiffs, irrespective of their residences.

It is argued by defendant, however, that, if said Act No. 220 of 1932 gives to a nonresident plaintiff the right to resort to the writ of attachment, such statute has been repealed by Act No. 8 of the Third Extraordinary Session of 1935. This last mentioned act provides in part that: "No foreign corporation doing business in this State shall be permitted to present any judicial demand before any court of this State, unless and until it has complied with the laws of this State for doing business herein, and unless and until it has paid all taxes, excises and licenses due to the State, provided that nothing in this act shall be construed to prevent the bringing of a cause of action against any such foreign corporation." These quoted provisions, as we view them, affect only foreign corporations who are doing business in this state. It does not appear from the record, nor is it contended by defendant, that plaintiff was doing business in Louisiana at the time of the institution of this suit. We are of the opinion that said Act of 1935 is inapplicable to the case at bar. It is next urged that the trial court had no jurisdiction of this case for the reason that an attachment cannot legally issue against a succession or against succession property. In support of that contention, counsel relies on and quotes from the case of Levy v. Succession of Lehman, 38 La.Ann. 9. Involved in that proceeding was an attachment of property belonging to a decedent's succession, resorted to for the purpose of aiding in the enforced collection of a debt of such decedent. The Supreme Court, in decreeing the seizure to be illegal, followed the well-established jurisprudence and held that an attachment cannot issue or be directed against a succession or succession property. One of the principal reasons prompting that decision was that:

"It is an elementary principle relating to successions, that the rights of creditors are fixed at a man's death; that succession property constitutes a common fund, the equal pledge of all the creditors except as relates to privileges and mortgages acquired before the death, and provision is made for the concurrent payment of all debts according to their rank; which precludes one creditor by superior diligence or by any device or process whatever after death, from obtaining an advantage over others."

The doctrine of the Levy Case, however, is not applicable to this controversy. Here the attachment was not issued against property of a decedent's succession, nor was it employed for the purpose of enforcing the payment of a...