Hutchinson v. Rice

• Decision Date: 17 November 1902
• Docket Number: 14,203
• Citation: 33 So. 57,109 La. 29
• Court: Louisiana Supreme Court
• Parties: HUTCHINSON v. RICE

33 So. 57

109 La. 29

HUTCHINSON v. RICE

No. 14,203

Supreme Court of Louisiana

November 17, 1902

Appeal from civil district court, parish of Orleans; Walter B Sommerville, Judge.

Action by Alexander C. Hutchinson against Henry Rice. From a judgment dismissing a rule taken by George Fuchs, receiver of Henry Rice & Son, he appeals. Affirmed.

Dinkelspiel & Hart, for appellant.

Denegre Blair & Denegre, for appellee A. C. Hutchinson.

MONROE J. BLANCHARD, J., concurs in the decree.

OPINION

MONROE, J.

Statement of the Case.

George Fuchs, receiver, appeals from a judgment dismissing a rule taken by him for the release of certain property in the parish of Calcasieu, seized under execution issued on a judgment obtained by the plaintiff against the defendant. The facts leading to the judgment appealed from are as follows:

In June, 1897, the defendant gave his notes for a large amount to the plaintiff, and, to secure their payment, gave a mortgage on property owned by him in New Orleans, by an act which contained the usual stipulations with respect to the payment of taxes.

In July, 1899, the Charter Oak Stove & Range Company, of St. Louis, filed a petition in the civil district court, claiming to be a creditor of the commercial firm of Henry Rice & Son (composed of the defendant and Philip R. Rice), and praying that a receiver be appointed "to take charge of the assets of said firm and administer the same." This proceeding was allotted to division D, and upon the same day that it was filed the defendants answered, consenting that the prayer be granted, and the court made the following order, to wit:

"In this matter, the court considering the written consent of the defendants, it is ordered, adjudged, and decreed that there be judgment herein appointing George Fuchs as receiver of the assets and property of Henry Rice & Son and Henry Rice and Philip Rice, the individual members of said firm; that, as such, he be given full power and authority to take charge of said property and carry on the business of said firm, and do all other things needful in the premises."

In January, 1900, the plaintiff filed a suit, which was allotted to division B of the civil district court, alleging that the defendant Henry Rice had failed to pay the taxes for several years on the property mortgaged by him, and that he (the plaintiff) had paid them, and praying judgment in reimbursement of the amount so paid. To this the defendant excepted that the case had not been properly allotted, that the action was premature, and that division B was without jurisdiction, "for the reason that all the affairs of the defendant, including the property described in the petition," were in the hands of the receiver appointed by division D; and with the last exception filed an answer denying generally the allegations of the petition. The exceptions thus filed were overruled, and on the merits there was judgment, signed June 15, 1900, in favor of the plaintiff, for $ 6,854.97, from which no appeal was taken. In May, 1901, by virtue of an execution issued under this judgment, the sheriff of the parish of Calcasieu seized, as the property of the defendant, certain land in that parish, whereupon the following motion was filed, to wit:

"On motion of George Fuchs, receiver of Henry Rice & Son and of Henry Rice, so appointed in the matter of the Charter Oak Stove & Range Co., * * * and on suggesting to the court that he is and was in possession of certain property belonging to said Henry Rice situated in the parish of Calcasieu, in this state, and described as follows: * * *, which property the said Henry Rice acquired from Rice, Born & Co. on June 14, 1897; that said property was duly inventoried in said matter; * * * and on further suggesting that the plaintiff has caused said property to be seized; * * * and on further suggesting * * * that the seizure * * * is illegal, * * * because interfering with petitioner's [mover's] rights in the premises, * * * and that said property can only be sold in due course of the administration of mover, as receiver, and not as against Henry Rice in a court of ordinary jurisdiction: It is ordered that the said A. C. Hutchinson show cause why said seizure should not be released and canceled."

To this the plaintiff (as defendant in rule) excepted that, his judgment having been regularly obtained in a court of competent jurisdiction, its execution could be arrested only by injunction and bond, and not by rule to show cause or to quash; and he answered that the status and authority of the plaintiff in rule were predicated upon an application for and consent to the appointment of a receiver of the business and affairs of Henry Rice & Son, and that, so far as Henry Rice individually was concerned, the only effect of the order making the appointment was to give judicial approval to the selection made by the parties of the person named as receiver, without, however, conferring upon such person any greater powers than such consent could confer, and that otherwise the order was void for want of jurisdiction; and, further, that the question of his right to proceed against the person and property of his debtor Henry Rice had been considered and passed on in the proceeding in which his judgment had been obtained, and that said proceeding and judgment should, therefore, operate as a bar to the demand contained in the rule.

A few weeks later the receiver filed a supplemental motion, alleging that in the original motion he had, through error, alleged that the title to the property seized stood in the name of Henry Rice, but that in fact it had been acquired by Henry Rice & Son by purchase from Jas. D. Stanfield by act of date August 23, 1899, recorded August 31, 1899, and, being the property of the firm, could not be seized under a judgment against one of its members. And to this the defendant, reiterating the exceptions and pleas formerly urged, filed a general denial.

Upon the trial of the issues thus presented it was shown that in June, 1897, Henry Rice individually had purchased the property in question from the liquidating commissioners of Rice, Born & Co., Limited, and that about that time, or shortly afterwards, he had entered into what for most, if not for all, purposes, may be called a contract of partnership with his son, Philip R. Rice, which, among other things, contained the following stipulations:

"The said Henry Rice is, and shall remain, the sole owner of the stock in trade, accounts, credits, bills receivable, good will, and all other assets of said business, said Philip R. Rice being interested solely in the profits of said business to the extent of five per cent. thereof, but shall be entitled to draw, in any event, the sum of $ 250 per month, and the amount so drawn to be credited on account of his interest in the profits as above set forth, which profits shall be ascertained at the end of each year."

It was also shown that upon August 11, 1899, the sheriff of the parish of Calcasieu executed an instrument purporting to convey the property in question to J. D. Stanfield, and containing the following among...