Equity Savings & Loan Co., Ltd. v. Boisfontaine

• Decision Date: 18 December 1905
• Docket Number: 15,734
• Citation: 40 So. 241,115 La. 842
• Parties: EQUITY SAVINGS & LOAN CO., Limited, et al. v. BOISFONTAINE et al. (JUNIUS HART PIANO HOUSE, Limited, Garnishee). In re HEYMANN
• Court: Louisiana Supreme Court

40 So. 241

115 La. 842

EQUITY SAVINGS & LOAN CO., Limited, et al. v. BOISFONTAINE et al. (JUNIUS HART PIANO HOUSE, Limited, Garnishee).

In re HEYMANN

No. 15,734

Supreme Court of Louisiana

December 18, 1905

Certiorari from Court of Appeal, Parish of Orleans.

Action by the Equity Savings & Loan Company, Limited, against S. B Boisfontaine and others, in which the Junius Hart Piano House, Limited, was made garnishee, and from a judgment against it appealed to the Court of Appeal, where the judgment was reversed, and Henry L. Heymann, as subrogee applies for certiorari or writ of review. Affirmed.

Charles Rosen and Zachary Adler, for applicant.

Solomon Wolff, for respondent Junius Hart Piano House, Limited.

OPINION

NICHOLLS J.

In his application for the writ of review applicant avers: That the plaintiff obtained judgment against the defendant, Boisfontaine, in the First city court of New Orleans, in the above-entitled case on the docket of that court, for $ 45, with interest, and 10 per cent. attorney's fees, and costs. That under a writ of fi. fa. the Hart Piano House, Limited, was made garnishee, and answered, denying any indebtedness. That said answers were traversed as to materiality and what was expected to be proved, to wit: That said garnishee was indebted to said defendant in the full amount of said judgment at the date of the service of the interrogatories. The books of said garnishee, showing the state of defendant's account, were ordered to be produced in court on the trial of said rule. That, instead of complying with said order, said garnishee refused to comply with said order, and refused to produce any of its books, as evidenced by written exception and refusal filed February 14, 1905.

That by reason of said refusal the said court took for confessed the truth of the allegations of mover's affidavit and rendered judgment pro confesso against said garnishee for the amount of plaintiff's judgment against defendant.

That from said judgment the garnishee took an appeal to the Court of Appeal for the parish of Orleans, and on the trial thereof produced said books and sought to prove thereby that said garnishee was not indebted to defendant. That to this offer appellee objected, but the Court of Appeal overruled said objection, admitted said books and said evidence, and reversed the judgment in appellee's favor against the garnishee, with costs.

Applicant avers that the Court of Appeal permitted the introduction of said books for the first time on appeal before it, because it considered that a trial de novo gave to the garnishee (the appellant) that right; but he, the applicant, denied and contested the right and authority of the Court of Appeal so to do. It avers that the sole issue before the Court of Appeal on the written pleadings was the correctness vel non of the judgment of the First city court; that the exception or return of the rule was in writing, and no other defense could be considered -- citing De Grilleau v. Boehm, 106 La. 472, 31 So. 74.

The Court of Appeal, under order of this court, has sent up the record in the case to this court for our review.

The evidence shows that the plaintiff, having obtained a judgment against Boisfontaine, caused a writ of fi. fa. to issue upon the judgment, and made seizure thereunder of any amount which the Junius Hart Piano House, Limited, might owe the defendant, propounding to it, simultaneously, the interrogatories usually made in such cases. The garnishee answered, denying all liability.

Thereafter, on the 31st of January, 1905, on the suggestion of the plaintiff that the answers of the garnishee were evasive and incorrect, and not responsive to the interrogatories propounded, and on the averment that the garnishee was indebted to the defendant in the full amount of the judgment, it was ordered by the court that the garnishee show cause on Monday, the 6th of February, 1905, at 10 o'clock a. m., why said answers should not be set aside and judgment rendered against it in favor of the plaintiff in the full amount of plaintiff's judgment.

On the same day, on the suggestion of the plaintiff that it had filed a rule traversing answers of the garnishee, and that on the trial of the rule it was necessary and material to the cause of plaintiff that the garnishee should produce in open court the books (naming them) showing the state of the account of the defendant with the garnishee at the time of the service of the interrogatories on it, the court ordered that the garnishee should produce said books in open court on the trial of the rule traversing its answer to interrogatories.

The garnishee was notified to produce said books on the 6th of February, 1905, at 10:30 a. m.

The garnishee excepted to the motion for the production of the books for the reason that the court was without jurisdiction, ratione materiae, to order the books to be produced under the conditions prevailing. It prayed that the motion be denied, and that it be dispensed from producing the books.

On the trial on the 14th of February, 1905, of the rule, garnishee's exception was overruled, and the court set aside the answers to interrogatories, ordered interrogations to be taken pro confesso against the garnishee, and refused a new trial. The garnishee appealed to the Court of Appeal.

The case was tried de novo in the latter court, and on the trial the garnishee was permitted, over objection made, to introduce his books in evidence. The trial resulted in a reversal of the judgment appealed from and a judgment in favor of the garnishee, whereupon the case, on application of the plaintiff, was ordered here for review.

Counsel on behalf of the plaintiff refer the court to article 140, Code Prac., and to the decision of this court in De Grilleau v. Boehm, 106 La. 472, 31 So. 74. Counsel of the garnishee urge, in support of the action of the Court of Appeal, Saunders v. Ingram, 5 Mart. (N.S.) 647, and State ex rel. Rudy v. Justice, 49 La.Ann. 1165, 22 So. 336.

He says further:

"Nor are we without precedent in other states. In Inhabitants v. Sweeney, 118 Mass. 418, the court held that on an appeal from justice court, the trial being, as here, de novo, the appeal opens to the appellant the whole case as to the law, the facts, and the judgment.

"In Hooper v. Farwell, 3 Minn. 106 (Gil. 58), the court held the case on appeal de novo brought into the appellate court stands as it stood before trial in the justice's court. See, also, Welter v. Nokken (Minn.) 37 N.W. 947; Ser v. Bobst, 8 Mo. 506; Harper v. Baker, 9 Mo. 116; Musgrove v. Mott (Mo.) 2 S.W. 214; Barclay v. Brabston (N. J.) 9 A. 769; Allen v. Wood, 1 Head (Tenn.) 436.

"So it has been held that a defense may be made on the trial of an appeal from a justice court which was not made before the Justice. Davis v. Fitchett, 5 Fla. 261; Hall v. Mills, 11 Mo. 215.

"'An appeal to the municipal court of St. Paul from the judgment of a justice of the peace on questions of both law and fact brings up the case for a trial de novo, and gives the court the same power over the pleadings and proceedings as if the action had originally been commenced therein.' Webb v. Paxton (Minn.) 32 N.W. 749; Ill. Cent. R. R. v. Andrews, 61 Miss. 474; Swinborn v. Johnson (Tex. Civ. App.) 24 S.W. 567; Wilcox v. Holmes, 20 Wis. 307; Hall v. Doyle, 35 Ark. 445.

"In Missouri an affidavit for attachment may be amended. The plaintiff brought his attachment suit in the justice court. The attachment was maintained only because defendant failed to make proper plea. Defendant appealed, and filed the necessary plea, but plaintiff was permitted to file amended affidavit. Thus the case tried in the appellate court was decided on an issue not before the justice. Musgrove v. Mott (Mo.) 2 S.W. 214.

"Defendant failed to appear, and judgment was taken by default. On appeal, when defendant filed answer, the court said:

"'No reason is perceived why he should be denied such a defense on appeal in the county court, where the trial is de novo. White v. Johnson et al. (Tex. Civ. App.) 24 S.W. 568;

. L. S.W. Ry. Co. v. Denson (Tex. Civ. App.) 26 S.W. 265.'

"A trial de...