George W. Garig Transfer v. Harris, 40669

• Decision Date: 02 July 1954
• Docket Number: No. 40669,40669
• Citation: 226 La. 117,75 So.2d 28
• Parties: GEORGE W. GARIG TRANSFER, Inc. v. J. Dolan HARRIS, d/b/a Magnolia Express.
• Court: Louisiana Supreme Court

Page 28

75 So.2d 28

226 La. 117

GEORGE W. GARIG TRANSFER, Inc. v. J. Dolan HARRIS, d/b/a Magnolia Express.

No. 40669.

Supreme Court of Louisiana.

July 2, 1954.

Rehearing Denied Oct. 5, 1954.

Normann & Normann and Lee F. Murphy, New Orleans, for appellant.

Breazeale, Sachse & Wilson, Baton Rouge, for appellee.

FOURNET, Chief Justice.

The plaintiff, George W. Garig Transfer, Inc., a Louisiana corporation, instituted proceedings by non-resident attachment and substituted service through a curator ad hoc against the defendant, J. Dolan Harris, d/b/a Magnolia Express, a resident of Mississippi, seeking to be declared the owner of Louisiana Public Service Commission Certificate No. 297-A authorizing operation of a common carrier motor freight service between New Orleans and the Louisiana-Mississippi state line on U. S. Highway 51, in both directions, and serving all intermediate points; and seeking also to recover damages for alleged loss of profits. From a judgment declaring plaintiff to be the owner of the certificate, both parties have appealed.

The facts giving rise to this controversy are not disputed. Those pertinent to the issue, as revealed by the record, are that for several years the plaintiff had been desirous of purchasing from the defendant the said certificate, and following extended discussion the parties came to an agreement whereby the defendant was to sell the certificate to the plaintiff for $4,000 cash. An act of cash sale was prepared by the plaintiff at Baton Rouge (its domicile) and mailed to the defendant in Mississippi, where it was duly executed before a notary and two witnesses on April 19, 1950, and was then brought to Baton Rouge by the defendant. Two days later, in that city, the parties by written instrument 'agreed that the said contract of sale which they have executed, together with the consideration therein stipulated consisting of $4,000 cash, shall be placed in escrow with the City National Bank of Baton Rouge, Louisiana, Escrow Agent, together with a copy of this contract, to be by said agent held under the terms of this agreement;' with instructions that upon the approval of the transfer of the Certificate by the Public Service Commission, to be sought by a joint petition to that body, and evidenced by its Order, the agent 'shall deliver the contract of sale to the said purchaser and the consideration thereof to the said seller,' but in the event that the Commission should issue an Order denying the transfer, the agent 'is * * * directed to return said contract of sale to the said seller and the said consideration to the said purchaser, and this agreement shall thereupon be cancelled.'

It appears that at the time of the execution of this agreement, a joint petition to carry out this transfer had already been filed with the Public Service Commission. The Commission, however, did not consider the matter until its meeting of August 23, 1950. ¹ In the meantime, on August 9th, the defendant had filed a written motion stating his desire to withdraw from the joint petition and seeking to have the matter dismissed. At the meeting, the plaintiff opposed defendant's right to withdraw, and the Commission heard testimony as to plaintiff's ability to render the necessary service, with the result that it found plaintiff was able and willing to perform; it ruled that the transfer would have been approved, but that it was without power to prevent defendant's withdrawal as a party to the application and that a determination of the status of the parties under the contract was a matter exclusively within the jurisdiction of the courts. The case was ordered discontinued without prejudice to the rights of the parties. The plaintiff thereupon instituted these proceedings, on October 28, 1950, in the Nineteenth Judicial District Court, Parish of East Baton Rouge, seizing the contract of sale of Certificate No. 297-A and the sum on deposit with the Escrow Agent, City National Bank, by way of garnishment under a writ of attachment.

On the 9th of November following, the defendant appeared through counsel of his own choice and filed a motion to dissolve the attachment and dismiss the suit on the allegation that the bond was defective in that it failed to describe the property to be attached or to recite the identity of its owner. Subsequently, on November 15th, he filed exceptions: (1) to the jurisdiction ratione personae, and (2) to the jurisdiction ratione materiae; and in the same document, in the following order but in the alternative, in each case reserving his rights under previous rulings, (A) excepted to the petition on the ground that plaintiff should be ordered to elect whether his cause of action was (1) an action for specific performance and damages, (2) ownership of the certificate, with damages, (3) a possessory action for a movable, (4) a petitory action, or (5) an action for eviction; (B) again urged exceptions to the jurisdiction ratione personae and ratione materiae; (C) excepted to the petition on the ground that (1) it failed to state a right of action, (2) failed to state a cause of action, (3) was too vague and indefinite, (4) contained an improper cumulation of actions.

The exceptions, after argument and submission, were disposed of by the trial judge as follows: ² Those to the jurisdiction ratione personae and ratione materiae were overruled; the motion for election of remedies was overruled; the exceptions of no cause or right of action were referred to the merits; those of vagueness and improper cumulation of actions were overruled. Following these rulings, the defendant answered, denying that the sale was ever consummated and averring that he executed an agreement to sell or transfer the certificate only if the transfer should be approved by the Commission, failing which there was no sale.

Following trial of the case on the merits the trial judge, in his written reasons for judgment, expressed he view that he 'had jurisdiction of the res, that is, the certificate in question,' and therefore 'had jurisdiction to proceed with the case, since ownership [of the certificate] was the principal issue,' as reflected by the prayer of the petition; he also found that a reading of the petition showed there was clearly no merit to the other exceptions; and on the merits, concluded 'that the contract under consideration here cannot be properly labeled either a contract of sale or a contract to sell, but more properly a contract conditioned upon an event happening over which neither of the parties had absolute control,' and was governed by the provisions of the LSA-Civil Code declaring 'When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen', Art. 2038, but 'The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it,' Art. 2040. There was judgment decreeing the plaintiff to be the owner of Certificate 297-A, and ordering the City National Bank of Baton Rouge, Escrow Agent, to deliver to the plaintiff the contract of sale of said certificate and to the defendant the $4,000. While the Court, in its written reasons for judgment, expressed the opinion that 'the plaintiff failed to show with sufficient clarity the damages sought, and hence that part of its demand will be rejected,' the judgment is silent on the point.

It appears to us that when the defendant submitted his plea to the jurisdiction ratione materiae at the same time as he submitted the plea to the jurisdiction ratione personae, and these were argued, submitted, and disposed of in one judgment, his action constituted a waiver of the exception to the jurisdiction ratione personae. State ex rel. Brenner v.Noe, 186 La. 102, 171 So. 708; Martel Syndicate v. Block, 154 La. 869, 98 So. 400. Under the well settled jurisprudence of this Court, the exception of want of jurisdiction ratione personae, to be valid, must be presented in limine and alone, and 'an appearance to the suit, except for the purpose of objecting to the jurisdiction, or to the process or citation, subjects defendant to the jurisdiction of the Court.' First Nat. Bank of Arcadia v. Johnson, 130 La. 288, at page 290, 57 So. 930, at page 931. See, also, City Nat. Bank of Selma v. Walker, 130 La. 810, 58 So. 580. In the Block case, supra [154 La. 869, 98 So. 401], Block was cited through a curator-ad-hoc who made no appearance, but counsel of his own selection filed on his behalf the following exceptions: '(1) That defendant is a resident and citizen of the state of Texas, and cannot be brought into court by substituted service; (2) that the Martel Syndicate is domiciled at Jennings, Jefferson Davis parish, and the court of Acadia parish is without jurisdiction of the res or the corporation; * * *' and the Court held that the defendant by his action had tendered conjointly all the issues which the court was asked to determine, and by so doing had personally submitted himself to the jurisdiction of the Court.

In any event, we think the trial judge, in his ruling that he had jurisdiction of the res, was correct. Certificate 297-A, known as a certificate of public convenience and necessity, which authorizes the...