Stewart v. Litchenberg

• Citation: 148 La. 195,86 So. 734
• Decision Date: 30 November 1920
• Docket Number: 24246
• Court: Supreme Court of Louisiana
• Parties: STEWART v. LITCHENBERG. In re LITCHENBERG

86 So. 734

148 La. 195

STEWART v. LITCHENBERG.

In re LITCHENBERG

No. 24246

Supreme Court of Louisiana

November 30, 1920

Application dismissed.

Claiborne & Claiborne, for applicant.

J. H Morrison and Albin Provosty, both of New Roads, for respondent.

DAWKINS J. O'NIELL, J concurs. PROVOSTY, J.

OPINION

DAWKINS J.

Plaintiff instituted in the court below an action in damages for breach of contract, in which it was alleged that he, a resident of Saunders county, state of Nebraska, Charles J. Carlson, of same residence, Gottleib Sprieck, a resident of Stanton county, said state, A. P. Olson, also a resident of Saunders county, and Charles Koran, a resident of Douglas county, said state of Nebraska, were the owners of certain lands situated in the parish of Pointe Coupe, this state; that plaintiff and the said Koran, on the one part, and the remainder of said individuals, on the other, entered into agreements by which the said plaintiff and Koran were to undertake to find a purchaser for the said lands, and subsequently for the timber thereon separate from the land; that petitioner and the said Koran thereafter found a purchaser able, ready, and willing to buy said timber, provided that of all parties were conveyed, so as to form a tract sufficiently large to justify its acquisition; that before the transfer could be made the said defendant Litchenberg revoked the agency or power of attorney under which plaintiff and said Koran were operating, and the prospective purchaser refused to buy any of it without all, and the deal fell through. Plaintiff sues for one-half of the alleged commissions upon the timber of all parties save his own, and as to that he claims the profit which he alleges he would have made.

The defendant was found and personally cited in the parish of Pointe Coupe.

Defendant's first appearance was by way of exception to the jurisdiction of the lower court, in which it was urged that, since the petition disclosed that he was a resident of the state of Nebraska and the suit was for a personal judgment, the court was without jurisdiction.

Plaintiff next filed an amended petition, alleging merely the name of the prospective purchaser to whom he claimed to have bargained the timber.

Thereupon defendant again excepted to both original and amended petitions on the ground that the court was without jurisdiction ratione personae, and in which it was suggested that both plaintiff and defendant were nonresidents, and, this being a suit for a personal judgment without seizure or attachment, the court was without jurisdiction. And, in the event of said exceptions being overruled, it was further excepted that the court was without jurisdiction ratione materiae.

All exceptions were overruled, defendant was forced to answer, and prayed for trial by jury; trial was had before a jury, which gave a verdict for defendant. A motion for new trial was filed and sustained, and the lower court ordered a second jury to hear the case beginning on August 17, 1920. Defendant at all times protested against the court's exercise of jurisdiction, and on the day the case was first called for trial, May 6, 1920, he filed further objections to court's jurisdiction, as follows:

First, that both plaintiff and defendant were residents of the state of Nebraska, and this is an ordinary suit sounding in damages;

Second, that as a general rule a party must be sued at his domicile, except in cases specially provided by law, and which did not include the present one;

Third, that under the Fourteenth Amendment to the federal Constitution, being a citizen of the United States, and of the state of Nebraska, he is entitled to the equal protection of the law, and hence is entitled to have a suit, such as this, brought before the courts of his domicile; and

Fourth, that to compel him to defend this suit would violate the laws and Constitution of the state of Louisiana.

After the lower court had ordered the drawing of a second jury and fixed the case for hearing on August 17th, defendant applied to us for a writ of prohibition, upon the ground that the court below was without jurisdiction, a rule to show cause was issued, and the matter is now before us on the answer of the district judge, in which he cites and relies upon paragraph 5 of article 165 of the Code of Practice as vesting him with jurisdiction in the premises. He also urges that the case is one in which we would have jurisdiction on appeal, and for that reason, also, prohibition should not issue.

Opinion.

We will take up first the question of whether or not a writ of prohibition should issue in a case like the present, where it is contended by the applicant that the lower court is without jurisdiction. In the case of Iberia, etc., Railway Co. v. Morgan's La. & T. Ry. & Steamship Co., 129 La. 492, 56 So. 417, we said:

"Where a court is without jurisdiction, it would impose a hardship and...