Florida Molasses Co. v. Berger

• Decision Date: 05 November 1951
• Docket Number: No. 39817,39817
• Citation: 55 So.2d 771,220 La. 31
• Parties: FLORIDA MOLASSES CO. v. BERGER et al.
• Court: Louisiana Supreme Court

Page 771

55 So.2d 771

220 La. 31

FLORIDA MOLASSES CO. v. BERGER et al.

No. 39817.

Supreme Court of Louisiana.

Nov. 5, 1951.

Nat B. Knight, Jr., Gretna, Montgomery, Barnett, Brown & Sessions, New Orleans, for plaintiff-appellant.

Guste, Barnett, & Redmann, Morris B. Redmann, New Orleans, for appellee.

McCALEB, Justice.

Plaintiff, a Florida partnership, brought this suit against Samuel Berger, A. H. Golodetz, General Molasses Company and J. M. Carras, Inc. to recover the sum of $57,575.70. It alleged that, on or about May 13 or 14, 1948, it owned and had on board a vessel operated by J. M. Carras, Inc., enroute from Jacksonville, Florida to Puerto Padre, Cuba, approximately 191,919 gallons of molasses having a value of 30cents per gallon; that the defendants appropriated and converted the molasses, it being taken over to the use of the defendants without petitioner's knowledge or consent; that it was subsequently commingled with molasses acquired from other sources by the defendants Berger, Golodetz and General Molasses Company and brought to the port of New Orleans where it was stored at U. S. Industrial Chemicals Inc. Tank Farm in Westwego; that all the defendants are nonresidents of Louisiana, Berger and Golodetz being domiciled in the State of New York and J. M. Carras, Inc. in England and that General Molasses Company is not organized under the laws of Louisiana nor qualified to do business in this State. Alternatively, it was averred that General Molasses Company is a trade name under which Golodetz and Berger do business.

Plaintiff prayed for and obtained the issuance of a nonresident writ of attachment and, in execution thereof, the Sheriff of Jefferson Parish seized certain molasses on the premises of U. S. Industrial Chemicals, Inc. The writ of attachment, petition and citation were also served by the sheriff on a curator ad hoc appointed by the Court and, conformable to the provisions of Article 254 of the Code of Practice, service of the attachment and citation was also made by affixing copies of the same on the door of the courtroom of the District Court.

In due course, General Molasses Company, asserting that it is a limited partnership organized under the laws of New York and that is individual partners are domiciled in that State, specially appeared and excepted to the jurisdiction of the court ratione personae and ratione materiae. Additionally, it filed a motion to dissolve the writ of attachment on the grounds that

(a) The affidavit upon which the writ issued was defective in that it did not state the amount of the alleged debt or whether it is a solidary or joint obligation,

(b) The petition and affidavit was indefinite in that it did not show which, if any, of the defendants were indebted and in what amount,

(c) The petition failed to disclose a right or cause of action, and

(d) No citation was prayed for or issued to General Molasses Company in its proper capacity as a limited partnership.

Subsequently, General Molasses Company bonded the attachment and thereafter, following a hearing, the district judge sustained the exceptions and motion to dissolve, recalled the writ of attachment and dismissed plaintiff's suit. ¹ Hence this appeal.

We think it manifest from the foregoing statement of the case that the judge erred in maintaining the exception to the jurisdiction ratione personae filed by General Molasses Company as that company, by bonding the attachment, submitted itself to the jurisdiction of the court. Rathbone Co. v. Ship London, 6 La.Ann. 439; Succession of Baumgarden, 35 La.Ann. 127; Williams v. Gilkerson-Sloss Commission Co., 45 La.Ann. 1013, 13 So. 394; Hollings-worth v. Atkins Bros., 46 La.Ann. 515, 15 So. 77; First Nat. Bank v. Johnson, 130 La. 288, 57 So. 930, 931 and Vititoe v. Shea, 161 La. 984, 109 So. 785.

The rule is stated in First Nat. Bank v. Johnson, thus: '* * * an appearance to the suit, except for the purpose of objection to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the court. A defendant may, without subjecting himself to the jurisdiction of the court, come in and ask to be dispensed from answering the suit, or, in other words, decline to appear, either because the court has no jurisdiction, or because the process for bringing him into court has been faulty, and therefore insufficient; and he may also ask for the removal of the suit from the state to the federal court; but he cannot, without subjecting himself to the jurisdiction of the court, apply for any other relief than this. The property stands in the court as his representative in his absence; if he comes in and withdraws the property and puts himself in its place, he must be considered as being in court for all the purposes of the suit.'

Counsel for appellee attempt to withstand the weight of the foregoing authorities by professing that there is a distinguishing feature in this case because the exception to the jurisdiction and the citation was filed before appellee bonded the property. This contention is without substance for the reason that it is the act of bonding the property which constitutes the appearance and submission to the jurisdiction of the court. The time when the appearance is made is of no importance in determining whether a waiver by appearance has taken place. An examination of the cases relied on by counsel, Bonner & Smith v. Brown, 10 La.Ann. 334; Billiu v. White, 15 La.Ann. 624 and Meritz v. Marks, 26 La.Ann. 740, has disclosed that none is authority for their contention.

The exception to the jurisdiction ratione materiae, which was sustained below, does not, in reality, present a jurisdictional question as it is based on the same grounds recited in the motion to dissolve the attachment. These challenges are directed at the sufficiency of the petition and the alleged failure of plaintiff to comply with the law in securing the writ.

We therefore consider the grounds upon which the motion to dissolve is founded. The last of these, regarding the sufficiency of the citation, need not be discussed since the voluntary appearance by appellee has cured any and all of the alleged defects of which complaint is made.

The main contention on the motion to dissolve is that the attachment cannot stand because the affidavit upon which the writ issued fails to state the amount of the debt owed by the defendants. It is said that, since the affidavit declares that the allegations of the petition are true and correct to the best of affiant's knowledge, information and belief, reference must be made to the petition to ascertain whether the amount of the debt is set forth; that, when this is done, it is impossible to determine how much plaintiff is claiming from appellee because the petition does not show whether appellee is a debtor in solido with the other defendants or is separately indebted, either ex delicto or in quasi contract and that, furthermore, the amount of the debt is uncertain because plaintiff is claiming the value of the molasses not at the time of the conversion but as of the date upon which the petition was filed.

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