Cleveland Steel Co. v. Joe Kaufman Co.

Decision Date17 December 1923
Docket Number25460
Citation99 So. 428,155 La. 529
CourtLouisiana Supreme Court
PartiesCLEVELAND STEEL CO. v. JOE KAUFMAN CO

Rehearing Denied by Division A March 3, 1924

Appeal from Civil District Court, Parish of Orleans; Porter Parker Judge.

Action by the Cleveland Steel Company against the Joe Kaufman Company. From an order distributing defendant's property in accordance with a receiver's account, the Whitaker Paper Company appeals.

Affirmed.

W. O Hart, of New Orleans, for appellant Whitaker Paper Co.

H. W. Kaiser and H. W. Robinson, both of New Orleans, for appellee receiver.

Ivy G. Kittredge, City Atty., and W. Catesby Jones, Asst. City Atty., both of New Orleans, for appellee City of New Orleans.

Denegre, Leovy & Chaffe, James Henry Bruns, and Lemle, Moreno & Lemle, all of New Orleans (W. S. Horton and R. V. Fletcher, both of Chicago, Ill., and Hunter C. Leake, of New Orleans, of counsel), for appellee Railroad Administration.

A. V. Coco, Atty. Gen., and Harry P. Sneed, of New Orleans, for appellee state tax collector.

ST. PAUL, J. O'NIELL, C. J., and ROGERS and BRUNOT, JJ.

OPINION

ST. PAUL, J.

This is a controversy over a receiver's account. As we read the record, the receiver had in his hands for distribution a balance of $ 6,489.09, out of which the following two items, aggregating $ 1,237.20, are admittedly entitled to be paid first, to wit: United States government $ 1,170.24, and court costs $ 67.20; thus leaving a net balance of $ 5,251.65, which he proposes to distribute in the following order of preference, viz.: (1) Receiver and attorney, $ 1,600; notary and appraisers, $ 550 -- $ 2,150. (2) State taxes, $ 1,865.54; city taxes, $ 2,505.56 -- $ 4,371.10. (3) Mrs. W. J. Davey, lessor, $ 825. (4) Whitaker Paper Company, seizing judgment creditor, $ 1,770.11.

The state and city, Mrs. Davey, and the Whitaker Paper Company all opposed the account, each claiming a preference over all the others, and each seeking to have the other claims stricken off or reduced. The trial judge increased the amount allowed Mrs. Davey from $ 825 to about $ 1,200 (to wit, $ 1,000, with interest and 10 per cent. attorneys fees), and reduced the fees of receiver, attorney, notary, and appraisers as privileged claims from $ 2,150 to $ 800. In all other respects the account was approved and the funds ordered distributed accordingly.

So that under the judgment of the lower court the net balance of $ 5,251.65 is to be distributed in the following order of preference, viz.: (1) Receiver, attorney, notary, and appraisers, $ 800. (2) State, $ 1,865.54; city, $ 2,505.56 -- $ 4,371.10. (3) Mrs. W. J. Davey, lessor, say $ 1,200. (4) Whitaker Paper Company, seizing judgment creditor, $ 1,770.11.

The Whitaker Paper Company alone appeals.

I.

The appellant obtained judgment against defendant and seized its stock of goods, but surrendered them to the receiver, under an order of court, with which we are not now concerned. This surrender did not destroy the privilege resulting from the seizure, whatever it may be worth. Campbell v. Creditors, 3 Rob. 106; C. P. art. 722. But the privilege resulting from a seizure does not outrank privileges granted by the law itself. Campbell v. Creditors, 3 Rob. 106; Thompson v. Sheriff, 47 La.Ann. 1401, 1404, 17 So. 830; C. P. art. 301. Hence it is clear that appellant's privilege does not outrank that of the lessor upon the stock of goods in the leased premises.

So that if the state and city have a privilege for their taxes, such privilege and that of the lessor (aggregating $ 5,571.10) will absorb the whole net balance of $ 5.251.65 aforesaid, and in that case appellant would have no interest in contesting the fees of the receiver, etc. On the other hand, if the state and city have no privilege, there will be left out of said net balance, after paying the lessor and the receiver, etc., more than sufficient to pay appellant in full, and in that case appellant would again have no interest in contesting the fees of the receiver, etc. Hence we confine ourselves to inquiring whether the state and city have a privilege for their taxes.

II.

Under Act No. 119 of 1882 and section 14 of article 10, Const. 1921, all laws applicable to the collection of state taxes apply likewise to the collection of municipal, parochial, and other taxes. So that if the state has a privilege for its taxes the city has also the same privilege.

Now article 10, § 11, par. 3, of the Constitution of 1921, p. 87 (formerly paragraph 2 of article 233, Const. 1898) provides that

"Taxes on movables shall be collected by seizure and sale by the tax collector of the movable property of the delinquent, whether it be the...

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13 cases
  • City of New Orleans v. Harrell
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 12, 1943
    ...307 U.S. 635, 59 S.Ct. 1031, 83 L.Ed. 1517; American Coal Burner Co. v. Merritt, 6 Cir., 129 F.2d 314. 3 Cf. Cleveland Steel Co. v. Joe Kaufman, 155 La. 529, 99 So. 428; Morelock v. Morgan & Bird Gravel Co., 174 La. 658, 141 So. 368; Tropical Printing Co. v. Union Title Guarantee Co., Inc.,......
  • Martin v. General Am. Cas. Co.
    • United States
    • Louisiana Supreme Court
    • November 8, 1954
    ...the property to the receiver. But such surrender did not 'destroy the privilege resulting from the seizure.' Cleveland Steel Company v. Joe Kaufman Co., 155 La. 529, 99 So. 428, 429; Item Co., Ltd., v. Nu-Grape Bottling Co., Inc., 160 La. 975, 107 So. 770; Item Co., Ltd. v. Nu-Grape Bottlin......
  • Straus v. City of New Orleans
    • United States
    • Louisiana Supreme Court
    • July 2, 1928
    ... ... 10, § 11, par. 2 (which was article 233, par. 2, of the ... Constitution of 1898); Cleveland Steel Co. v. Joe Kaufman ... Co., 155 La. 529, 99 So. 428. But the immovable [166 La ... 1042] ... ...
  • Tropical Printing Co., Inc. v. Union Title Guarantee Co., Inc.
    • United States
    • Louisiana Supreme Court
    • October 2, 1934
    ... ... The city ... attorney cites and relies upon the decision in Cleveland ... Steel Co. v. Joe Kaufman Co., 155 La. 529, 99 So. 428, ... which in turn was cited with ... ...
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