Carre, Limited v. International Car Co.

• Decision Date: 27 February 1911
• Docket Number: 18,654
• Citation: 54 So. 740,128 La. 205
• Court: Louisiana Supreme Court
• Parties: CARRE, Limited, v. INTERNATIONAL CAR CO. In re SCHNEIDAU

54 So. 740

128 La. 205

CARRE, Limited, v. INTERNATIONAL CAR CO.

In re SCHNEIDAU

No. 18,654

Supreme Court of Louisiana

February 27, 1911

Rehearing Denied March 27, 1911.

Action by W. W. Carre, Limited, against the International Car Company. Application of Oscar A. Schneidau for writs of prohibition and certiorari. Alternative writs of prohibition made perpetual.

Johnston Armstrong, for relator.

Dart Kernan & Dart, for respondent.

OPINION

MONROE J.

Relator is the holder of four notes, of $ 3,000 each, executed by the International Car Company, dated October 4, 1909, made payable in one year, and secured by mortgage (importing confession of judgment and containing the pact de non alienando) on real estate in the parish of Jefferson, which mortgage was duly recorded. In March, 1910, the civil district court for the parish of Orleans on the application of a creditor appointed a receiver for the car company, and in June the receiver attempted to sell the property in question, but the adjudication made in July was set aside, and thereafter, on October 7, 1910, relator obtained an order of seizure and sale from the district court for the parish of Jefferson, of which the receiver was notified, and from which he obtained an order of appeal. He, however, failed to furnish the bond required, and the appeal was abandoned, whereupon the sheriff of the parish of Jefferson made an actual seizure of the property and proceeded to advertise it for sale under the relator's writ, and had so advertised it up to the day preceding that fixed for the sale when he was stopped by an injunction sued out by the receiver in said civil district court. Relator then, after an unsuccessful attempt by rule to have the injunction dissolved, on the ground that the court was without jurisdiction, obtained from this court an order directing the judge of the civil district court to show cause why a writ of prohibition should not issue, and prohibiting him in the meanwhile from proceeding with the trial of the injunction. A few days later, by supplemental petition to this court, relator alleged that the receiver had advertised the property in question for sale, and that a further prohibitory order was necessary for the protection of his rights, and the order was made.

The judge a quo has sent up the papers accompanied by his answer or return in which he gives his reasons for exercising the jurisdiction of which relator complains. His position, as elaborated in the brief filed by counsel for respondents, is, in substance, as follows:

Article 133 of the Constitution confers upon the civil district court jurisdiction "in all proceedings for the appointment of receivers." Act No. 159 of 1898 confers upon the court authority "to appoint receivers to take charge of the property and business of corporations." The authority of the receiver (say the learned counsel) is not restricted to the place where the corporation may have its domicile, but extends wheresoever the business or property of the corporation may be found, and his possession in any part of the state is the possession of the court by which he was appointed, though the territorial jurisdiction of such court be confined to a particular parish. The learned counsel then refer to and construe together Code Prac. art. 736, Act No. 15 of 1894, Act No. 25 of 1902, Act No. 159 of 1898 (particularly section 11), and Act No. 44 of 1910, and reach the conclusion that the receiver's possession, constructive or actual, of the immovable property in question, situated in the parish of Jefferson, could not lawfully be ousted by the sheriff of that parish, acting under the authority of a writ of seizure and sale issued from the district court of the parish for the enforcement of a mortgage, importing confession of judgment, and containing the pact de non alienando.

Now whether that conclusion is correct or not may present a very nice question of law; but there is another question presented here which takes precedence of it, and that is, Where does the civil district court for the parish of Orleans get the right or the power to stop the district court for the parish of Jefferson from exercising in that parish any jurisdiction that it...