Gastauer v. Gastauer

• Decision Date: 27 November 1922
• Docket Number: 25397
• Citation: 152 La. 958,94 So. 897
• Parties: GASTAUER v. GASTAUER. In re WOODVILLE & WOODVILLE
• Court: Louisiana Supreme Court

94 So. 897

152 La. 958

GASTAUER v. GASTAUER.

In re WOODVILLE & WOODVILLE

No. 25397

Supreme Court of Louisiana

November 27, 1922

Rehearing Denied December 29, 1922

Judgment reduced and affirmed.

Woodville & Woodville, of New Orleans, in pro. per.

George J. Untereiner, of New Orleans, for respondent.

PROVOSTY C. J. DAWKINS, J., dissents. O'NIELL, J.

OPINION

PROVOSTY, C. J.

After judgment of separation of property had been rendered between plaintiff and defendant (131 La. 1, 58 So. 1012), the parties were referred to a notary public for effecting a partition of the property of the community. Dispute arose over the return of a certain deposit which Gastauer, the husband, had made with the law firm of Woodville & Woodville, attorneys of defendant in the litigation then pending between defendant and plaintiff; and plaintiff took a rule on said firm to show cause why said firm should not pay over said deposit to the notary, to be partitioned. This rule was made absolute to the extent of ordering said firm to turn over to the notary the sum of $ 173.35; and in all other respects was dismissed. Plaintiff in rule appealed to the Court of Appeal. That court increased the amount thus to be returned to $ 234.90, with 5 per cent. per annum interest thereon from February 23, 1910. An application by plaintiff to this court for the review of said judgment was rejected; whereas a like application by defendant was entertained; and is the matter now to be considered. The reason assigned by this court for rejecting plaintiff's said application was that this court found no error prejudicial to plaintiff in the judgment. The complaint of Woodville & Woodville, defendant in rule, is that said judgment is excessive; and that, moreover, it allows interest, whereas they, as depositaries, do not owe interest. The plaintiff in rule, Mrs. Gastauer, has filed a brief in which it is sought to have this court now pass a second time upon the matters included in her said application for writ of review. This we cannot do. However, while all question of the propriety of the payments made by Woodville & Woodville out of said deposit is thus eliminated, we may mention, in passing, that the mere filing of the wife's suit in separation of property, did not have the effect of putting this deposited fund in litigation so as to give rise to an exception to the rule established by articles 2949 and 2950 of the Code.

"Art 2949. * * * The depositary must restore the thing deposited only to him who delivered it, or in whose name the deposit was made, or who was pointed out to receive it."

"Art 2950. * * * He can not require him who made the deposit to prove that he was the owner of the thing. Yet if he discovers that the thing was stolen and who the owner of it is, he must give him notice of the deposit, requiring him to claim within due time. If the owner, having received due notice, neglects to claim the deposit, the depositary is fully...