Gilkeson Sloss Commission Company v. Bond & Williams

• Decision Date: 01 June 1892
• Docket Number: 1260
• Citation: 44 La.Ann. 841,11 So. 220
• Parties: GILKESON SLOSS COMMISSION COMPANY v. BOND & WILLIAMS -- YALE & BOWLING, IN LIQUIDATION, AND A. BALDWIN & CO., LIMITED, INTERVENORS
• Court: Louisiana Supreme Court

11 So. 220

44 La.Ann. 841

GILKESON SLOSS COMMISSION COMPANY v. BOND & WILLIAMS -- YALE & BOWLING, IN LIQUIDATION, AND A. BALDWIN & CO., LIMITED, INTERVENORS

No. 1260

Supreme Court of Louisiana

June 1, 1892

APPEAL from the Sixth District Court, Morehouse Parish. Baird J.

Newton & Cason, for Plaintiffs and Appellees.

R. B Todd, Jr., and Boatner & Lamkin, contra.

OPINION

McENERY J.

MOTION TO DISMISS.

A motion has been filed to dismiss the appeal of A. Baldwin &amp Co. on the ground that we have no jurisdiction ratione materiae.

The judgment appealed from orders the distribution of more than $ 8000 among several attaching creditors.

The motion is therefore denied.

ON THE MERITS.

Plaintiffs instituted attachment proceedings against defendants on the ground that they had mortgaged, assigned and disposed of their property, also that they had converted and were about to convert their property into money or evidences of debt, with the intent to place it beyond the reach of their creditors. For the same reasons alleged by plaintiffs there were seven other attachments issued against the defendants, among them the three banking institutions of Monroe and the intervenors.

That there was just cause for all the attachments there is no room for doubt. The evidence is overwhelming.

After the issuance of the attachments, Yale & Bowling and A. Baldwin & Co. intervened in the suit of plaintiff and resisted their attachment on the following grounds:

1. Informalities in the bond, alleging the insufficiency of the securities.

2. That plaintiffs' demand is fictitious.

3. That the attachment issued without legal cause, having been invited and solicited by defendants, and that the plaintiff and defendants fraudulently agreed and colluded between themselves that it should issue against defendants in order to place their property beyond the reach of other creditors.

4. That the purchase by plaintiff of the claims of the Monroe banks against defendant was the purchase of litigious rights and therefore null and void.

There was judgment for plaintiffs, and the interventions were dismissed, from which judgment they appeal.

1. On the first point urged by the intervenors it is elementary that in an attachment suit the intervenor will not be permitted to urge defences personal to the defendant.

The formality and regularity of the proceedings, the rightful issuing of the attachment, in the absence of fraud and collusion between plaintiff and defendant, are matters pertaining exclusively to the defendant. The intervenor is limited to the assertion of his own rights, to show that the property attached is his, that he has a superior privilege on it, or, as is alleged in this case, that the plaintiff and defendant perpetrated a fraud in the issuing of the attachment, in order to defeat his pursuit of the property.

He has nothing to do with the irregularity of the affidavit, the insufficiency of the attachment bond, and other irregularities in the proceedings. Flemming and Baldwin vs. Shields, 21 An. 118; Lee et als. vs. Bradlee, 8 M. 55; 8 R. 123; Carroll & Co. vs. Bridewell, 27 An. 239; 13 An. 222; 19 An. 462.

2. Plaintiffs proved the reality and existence of their debt. There was no serious attempt made to resist it.

3. From a careful examination of the record we are of the opinion that the intervenors have failed to prove that the plaintiffs and defendants were guilty of fraud and collusion in the issuing of the attachment by plaintiffs against the defendant. The defendants were in failing circumstances. They failed in their negotiations to raise money to pay their obligations, or to get an extension of time from the Monroe banks. Angered and mortified, disappointed and hopeless, they told plaintiffs' attorney that they would take care of themselves. They told plaintiffs' agent the same thing. No action was taken by plaintiffs' attorney on these impulsive declarations. It was only several days after, when he learned that the defendants were really in earnest in their statements and were disposing of their property, that he caused the attachment to issue. Before the issuing of the attachment, cotton was shipped by defendant to plaintiffs. They were obligated to do this, as plaintiffs were furnishing them with supplies, the agreement being to ship one bale of cotton for every $ 20 furnished. After the seizure the plaintiffs received cotton from defendants, which had not been seized under the attachment.

This was in pursuance of an arrangement between the plaintiffs and the defendants, which is urged as one of the strongest proofs of the collusion. The arrangement was legitimate. It...