Item Co., Ltd. v. Nu-Grape Bottling Co., Inc.
Decision Date | 01 February 1926 |
Docket Number | 27695 |
Citation | 160 La. 631,107 So. 471 |
Court | Louisiana Supreme Court |
Parties | ITEM CO., Limited, v. NU-GRAPE BOTTLING CO., Inc. In re HARTSON, Civil Sheriff |
Rehearing Denied March 1, 1926
Judgment arresting and staying proceedings under plaintiff's judgment and directing Sheriff to surrender property to receiver annulled and set aside, and rule taken by receiver dismissed.
W. O Hart, of New Orleans, for relator.
H. W Kaiser and Weiss, Yarrut & Stich, all of New Orleans, for receiver.
Blouin & Deutsch, of New Orleans, for intervener.
OPINION
Plaintiff obtained judgment against defendant and thereupon issued execution for the amount thereof; by virtue whereof relator, in his capacity of civil sheriff, seized and took into his possession certain physical property belonging to the defendant.
Thereafter one Harry H. Forst qualified as receiver for the defendant, and took a rule upon said sheriff to show cause why the property so seized should not be relinquished and turned over to said receiver.
The rule so taken was made absolute by judgment of the court below: whereupon plaintiff took a suspensive appeal therefrom. Which appeal is now pending before this court and is fixed for hearing on the very day this opinion is handed down. See our No. 27708, 160 La. 975, 107 So. 770 (1926).
Meanwhile the civil sheriff applied for this writ of prohibition, on the ground that said court, whose process he was then executing, "exceeded the bounds of his (its) jurisdiction, and said judgment (upon the rule) is null and void"; and on the further ground that "it is not competent for a receiver to take property from the sheriff which has been seized under a lawful judgment rendered before the receiver was appointed, and the court was powerless to make said rule absolute for that reason."
The receiver asks that the writs herein issued be recalled, on the following grounds (substantially), to wit: (1) That the sheriff has no personal interest in the matter; (2) that the remedy is by appeal and not by recourse to the supervisory powers of this court; and (3) that the judgment below was correct.
1. The contention made by the sheriff, that the court below (out of which the execution issued) is without jurisdiction and powerless to regulate its own process, is of course frivolous; the fact being that said court alone (and this court under its supervisory powers) had jurisdiction in the premises. Lazarus v. McGuirk, 8 So. 253, 42 La.Ann. 194.
2. It is quite true that the sheriff has no personal interest in this litigation; and, of course, a court officer cannot be permitted to interject himself into a litigation merely because of the fees which may accrue to him therein. But in this case the party having an interest to wit, the plaintiff, has intervened herein and joined the sheriff in applying for the writs. And we know of no reason why an intervention (C. P. art. 389) may not be filed in a case coming before this court under its original or supervisory jurisdiction, which (except as to the subject-matter thereof) differs in no way from the original proceeding before any other court. Lazarus v. McGuirk, supra. The case of Laloire v. Wiltz, 31 La.Ann. 436, has not the slightest application to such a proceeding.
3. It is also quite true that in general this court will not issue a writ under its supervisory powers in cases where the party complaining has a remedy in due course by appeal. But soon after the grant of general supervisory powers to this court by the Constitution of 1879 (article 90), the court held that this constitutional grant of power was meant to "emancipate" it from many restraints theretofore imposed upon it by the Code of Practice. State ex rel. City of New Orleans v. Judge. 32 La Ann. 549. And in the very next case decided, this court proceeded to further emancipate itself, by declaring, in effect, that the only restraint upon it in the exercise of the supervisory jurisdiction so granted was its own "sound discretion." State ex rel. Sinnott v. Falls, 32 La.Ann. 553.
Accordingly the writ herein issued was granted in what was (or then seemed to be) the sound discretion of all the justices of this court; and it has thus become (in the language of Mr. Chief Justice Nicholls, in State ex rel. Rivoire v. St. Paul, Judge, 28 So. 973, 104 La. 203), "an accomplished fact, * * * (which) calls for no decree of this court in the premises. * * *" And finally, since the case is actually here on appeal, and the oral argument of that appeal will doubtless enlighten us on the merits of the...
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