Item Co. v. Nu-Grape Bottling Co., Inc

Decision Date01 March 1926
Docket Number27708
Citation107 So. 770,160 La. 975
CourtLouisiana Supreme Court
PartiesITEM CO., Limited, v. NU-GRAPE BOTTLING CO., Inc

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.

Action by the Item Company, Limited, against the Nu-Grape Bottling Company, Inc., in which defendant's property was seized after judgment for plaintiff under writ of fieri facias. Rule restraining further proceedings in execution of plaintiff's judgment was made absolute, and plaintiff suspensively appealed.

Judgment annulled and set aside, and rule dismissed.

Blouin & Deutsch, of New Orleans, for appellants.

W. O Hart, of New Orleans, for appellee sheriff.

Weiss Yarrut & Stich, and Herbert W. Kaiser, all of New Orleans, for appellee receiver.

BRUNOT J. ROGERS, J., takes no part.

OPINION

BRUNOT, J.

The plaintiff obtained a judgment against the defendant. There was no appeal therefrom, and after the judgment became final a writ of fieri facias issued, and the civil sheriff seized thereunder certain movable property belonging to the defendant. A few days after service of notice of the seizure upon defendant, a creditor applied for and the court appointed Harry H. Forst receiver of the defendant company. The receiver qualified, and, on his motion, the plaintiff and civil sheriff were ordered to show cause why further proceedings in execution of plaintiff's judgment should not be arrested, and why the property seized under the writ should not be surrendered to the receiver, to be administered in due course. The rule was heard, it was made absolute, and plaintiff suspensively appealed from the judgment.

While the case was pending on the appeal, application was made to this court by the civil sheriff, and by the plaintiff, as intervener therein, for writs of prohibition and certiorari. The writs issued, and in due time they were perpetuated. This proceeding bears our docket No. 27695, and is entitled: "Item Co., Limited, v. Nu-Grape Bottling Co., Inc. In re Civil Sheriff Applying for Writs of Prohibition and Certiorari to Civil District Court, Parish of Orleans." 160 La. 631, 107 So. 471. [1] In that proceeding the concluding reasons of the court and its decree are as follows:

"For the rest, our learned brother of the district court erred in his judgment directing that all proceedings under plaintiff's judgment 'be immediately arrested and stayed,' and ordering that all the property and effects under seizure by virtue of the execution issued thereunder 'be surrendered forthwith' to the receiver.

"This was, of course, even more immediately effective than an injunction against further proceeding with said execution, and this court said in Duval v. T. P. Ranch Co., 91 So. 656, 151 La. 142 (citing authorities too numerous to be repeated here), that: 'It is well settled that a receiver cannot enjoin the execution of a judgment wherein the seizure occurred prior to his appointment, in the absence of allegations of fraud, or special interest in the property seized.'

Decree.

"The writs herein issued are therefore perpetuated; the judgment of the lower court arresting and staying proceedings under the judgment in favor of plaintiff, and directing the sheriff to surrender the property seized to the receiver, is annulled and set aside; and it is now ordered that the rule taken by the receiver be dismissed, at his cost in both courts."

The sole question which is presented in this case is whether the lien acquired by a valid seizure of the debtor's property under a fieri facias is divested by the subsequent application for and appointment of a receiver for the...

To continue reading

Request your trial
10 cases
  • Equitable Life Assur. Soc. of United States v. Gex' Estate
    • United States
    • Mississippi Supreme Court
    • 27 Febrero 1939
    ... ... Davis ... v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871; Fisher ... v. Pacific Mutual Life Ins. Co., ... ...
  • Owens v. Allied Underwriters
    • United States
    • Louisiana Supreme Court
    • 19 Febrero 1945
    ... ... Federico Macaroni Mfg. Co. v. Great Western Fire Ins. Co., ... 173 La. 905, 139 So. 1, 79 A.L.R ... The case of ... Item Co., Limited v. Nu-Grape Bottling Co., Inc., 160 La ... 975, 107 So ... ...
  • International Shoe Co. v. Picard & Geismar
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 15 Diciembre 1939
    ...the plea of prescription fails. The other cases cited by the proponent of the prescriptive bar, to-wit: Item Co., Ltd., v. Nu-Grape Bottling Co., Inc., 160 La. 975, 107 So. 770; Bailey v. Louisiana & N. W. R. Co., 159 La. 576, 105 So. 626; In re Pelican Sawmill & Mfg. Co., 50 La. Ann. 404, ......
  • Plantation Key Developers, Inc. v. Colonial Mortg. Co. of Indiana, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 6 Febrero 1979
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT