Egan v. Fush

• Decision Date: 01 April 1894
• Docket Number: 11,356
• Citation: 46 La.Ann. 474,15 So. 539
• Court: Louisiana Supreme Court
• Parties: THOMAS EGAN, JR., v. CHARLES M. FUSH

15 So. 539

46 La.Ann. 474

THOMAS EGAN, JR., v. CHARLES M. FUSH

No. 11,356

Supreme Court of Louisiana

April 1, 1894

Rehearing refused.

APPEAL from the Civil District Court for the Parish of Orleans Ellis, J.

Frank McGloin, for Plaintiff and Appellee.

W. S Parkerson, Attorney for Defendant and Appellant.

OPINION

WATKINS, J.

Suit was filed on the 23d of February, 1893, upon a promissory note maturing on the 18th of March following, accompanied by a writ of sequestration.

On the 27th of February following, the defendant moved to dissolve the sequestration upon two grounds, to-wit:

First that the allegations of the petition are untrue.

Second, that the debt sued on was not due at date of suit.

On the 2d of March thereafter, defendant filed an exception of prematurity and no cause of action.

On the 9th of March the plaintiff filed a supplemental petition, setting up the maturity of the note sued on since the filing of the original petition.

On the 20th of March, 1893, the defendant filed an exception to the supplemental petition, on the ground that it changed the substance of the demand of the original petition, and was consequently inadmissible.

On the trial the exceptions were overruled as to the supplemental petition, the original petition was dismissed and the sequestration allowed to stand -- the court a qua treating the supplemental petition, in personam, filed after the maturity of the note, and several days subsequent to the making of the affidavit, as the inception of the suit.

Subsequently the defendant filed an answer, reserving the benefit of his exceptions, and the cause went to judgment in favor of the plaintiff for the amount of his debt, sustaining the writ of sequestration, and enforcing the vendor's lien upon the property seized, and the defendant has appealed.

From the foregoing analysis of the pleadings and issues in this case, it is evident that the determinative questions are, first, whether the sequestration should have been dissolved on account of the alleged prematurity of the suit; second, whether the plaintiff's supplemental petition changed the substance of his original demand.

Reference to the petition discloses that suit was filed on the 23d of February, 1893, upon an unconditional obligation of the defendant, bearing date September 1, 1892, and maturing on the 1st of March following. That the prayer thereof is, "that, after due proceedings, there be judgment in favor of petitioner and against (the defendant) in the full sum of two thousand six hundred and sixty-six dollars and sixty seven cents, with vendor's privilege on the property described, and interest as claimed at eight per cent.," etc.

Alleging his vendor's lien upon certain movable property described as being in the defendant's possession, and swearing "that affiant fears that (the defendant) will conceal, part with, or dispose of" same during the pendency of the suit to the prejudice of his vendor's lien, the petitioner claimed and obtained a sequestration.

On this showing there is no doubt that suit was filed before the debt became due, and that an absolute and unconditional judgment was prayed for before same went to its maturity. Consequently, the exception of prematurity was well grounded, and the original petition was correctly dismissed by the judge a quo.

But just here the two preceding contentions enumerated arose in the court below -- the judge maintaining the sequestration and holding the supplemental petition to be consistent with the original petition, and the inception of the suit.

I.

Was the sequestration properly issued, or correctly maintained -- the original petition having been dismissed?

The supplemental petition was filed on the 9th of March, 1893, subsequent to the maturity of the debt, and also to the filing of defendant's exception of prematurity. It does not contain the reiteration of all the averments and charges of the original petition and is unaccompanied by any additional averment to the effect that the cause for the issuance of the writ of sequestration continued to exist, and no additional affidavit was made, order obtained, or bond given in connection therewith. There is no provision of the Code of Practice which authorizes the issuance of a writ of sequestration before the debt secured becomes due, as in a case of attachment and provisional seizure. C. P. 275 et seq., 244, 287.

But in such case the code makes special allegations in the petition and accompanying affidavit necessary and essential. For instance, in reference to an attachment, its requirement is "that in cases where the debt or obligation is not yet due, such an attachment may be granted * * * and it shall be lawful for any judge * * * to order a writ of attachment to issue whenever said judge shall be satisfied * * * of the existence of said debt * * * and swears that said debtor is about to remove his property out of the State before said debt becomes due" etc. C. P. 244.

In reference to a provisional seizure its requirements are "that it shall be sufficient to entitle a lessor to obtain said writ to swear to the amount which he claims, whether due or not due, and that he has good reasons to believe that said lessee will remove the furniture or property on which he has a lien or privilege out of the premises, and that he may be thereby deprived of his lien," etc. C. P. 287.

But these provisions are restricted to the issuance of the two conservatory writs mentioned, and do not apply to the main demand for the debt of the defendant. Clearly, it is contemplated by these articles that the fact must be set out affirmatively that the debt declared upon is not due at time of filing of the suit, accompanied by the formal and specific allegation of the other facts mentioned therein as rendering the process necessary antecedent to the maturity of debt. These provisions are exceptional, and to be strictly construed, and not to be extended to any other cases not covered by them.

There is no corresponding provision of the code applicable, in terms, to the issuance of a writ of sequestration prior to the maturity of the debt sued upon; though this court has so interpreted paragraph 6 of Article 275 of the code, as to warrant its issuance prior to the maturity of the debt, in an exceptional class of cases, not including the instant case.

The language of this paragraph is as follows, viz.:

"A creditor by special mortgage shall have the power of sequestering mortgaged property when he apprehends that it will be removed out of the State before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension." (Our italics.)

In Neilson vs. Pool, 17 La. 209, this interpretation was placed upon the provisions of that article. The note sued on in that case became due on the 1st of December, 1839, and suit was commenced on the 3d of September preceding -- plaintiff alleging that his debt was not then due, and that same was secured by a mortgage and privilege on the defendant's crop, which he verily feared and believed it was his intention to "remove beyond the jurisdiction of the court, and out of the State before his debt becomes due, and deprive him of the only security he has for the payment of his debt."

And his prayer was that the crop be sequestered, and that he have judgment for the amount of his note when same fell due, recognizing his mortgage and privilege.

The court states that "on 1st of February, 1840, a supplemental petition was filed setting forth the same facts and containing the same allegations, except as to the sequestration, which had been already obtained, praying for judgment on the note with a privilege or lien on the crop," etc.

On these averments a judgment by default was taken, upon the original and amended petitions, and subsequently the defendant filed an answer, one averment of which was to the effect that the suit was premature and the sequestration without cause.

But these defences did not prevail, and judgment went against the defendant on his note and mortgage, recognizing and enforcing the plaintiff's lien on the crops sequestered.

In the instant case no mortgage is alleged, and neither the plaintiff's petition nor affidavit contains any averment that the defendant's intention was to remove the property on which he claims a privilege "out of the State before his debt became due."

The case of Gardner vs. Shipley, 4 An. 184, was predicated upon allegations quite similar to those quoted from Neilson vs. Pool, and thereto a similar exception of prematurity was urged and with like results; and the court in its opinion said:

"The argument presented by the opposite party is that the debt being unmatured could not be sued for, and the right to a sequestration, being a mere accessory right, must follow the fate of the principal demand. The text of the law does not require, in terms, that the debt secured by the mortgage or privilege should have matured; (but) certainly its spirit is conservative, and, in our opinion, embraces the present case" -- citing with approval the case of Neilson vs. Pool.

But it is necessary in order to sustain a writ of sequestration under the cited article of the code, that its requirements be rigidly and closely pursued; for it was held in Clark vs. Glover, 14 La. 266, that an affidavit stating that the plaintiff "fears (that) the defendant may remove the mortgaged stock out of the jurisdiction of the State" is insufficient to obtain an order of sequestration; that it "should state the facts which induce his apprehension."

In that case the property sequestered was a slave, and "the alleged ground for obtaining this order was their apprehension that the slave would be removed out of the...