JC Trahan Drilling Contractor, Inc. v. Sterling

• Citation: 335 F.2d 65
• Decision Date: 04 September 1964
• Docket Number: No. 21112.,21112.
• Parties: J. C. TRAHAN DRILLING CONTRACTOR, INC., Appellant, v. Robert D. STERLING and Ruth L. Sterling, his wife, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

335 F.2d 65 (1964)

J. C. TRAHAN DRILLING CONTRACTOR, INC., Appellant, v. Robert D. STERLING and Ruth L. Sterling, his wife, Appellees.

No. 21112.

United States Court of Appeals Fifth Circuit.

July 10, 1964.

Rehearing Denied September 4, 1964.

J. C. Smith, Shreveport, La., James E. Wright, Jr., New Orleans, La., John R. Pleasant, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, La., for appellant.

Lloyd J. Cobb, Mettery I. Sherry, Jr., Cobb & Wright, New Orleans, La., for appellees.

Before HUTCHESON and RIVES, Circuit Judges, and GROOMS, District Judge.

PER CURIAM:

This case is on permissive appeal pursuant to 28 U.S.C.A. § 1292(b) from an interlocutory order directing sequestration of .148436 of the purchase price of all oil, gas or other minerals produced by defendant-appellant or for its account on State Leases Nos. 2220 and 2221, Eloi Bay Field Area, St. Bernard Parish, Louisiana.

Plaintiffs-appellees seek a judgment against appellant which would recognize them as owners of a one-eighth working interest each in leases 2220 and 2221, and would direct appellant to transfer to them by formal assignment such working interests. They also seek an order for specific performance of appellant's obligations under alleged purchase agreements of March 27 and June 5, 1962,¹ for an accounting, and for sequestration pending final determination of the action.

The court granted sequestration without bond.

On appeal the parties argue the merits of the action, and invite us to render a decision thereon. The trial court did not determine the merits of the case, but merely determined that appellees had presented a prima facie case for sequestration, and in its order made ample provision for the protection of the parties with respect to the funds so sequestered pending the litigation.² We likewise do not reach the merits.

Rule 64, Federal Rules of Civil Procedure, provides that:

"* * * all remedies³ providing for seizure of * * * property for the purpose of securing satisfaction of the judgment ultimately to be entered * * * are available under the circumstances and in the manner provided by the law of the state in which the district court is held * * *."

Article 3571 of the LSA-Code of Civil Procedure prescribes the grounds for sequestration. Article 3573, formerly Articles 273 and 274, provides:

"The court on its own motion may order the sequestration of property the ownership of which is in dispute without requiring security when one of the parties does not appear to have a better right to possession than the other."

The Louisiana Supreme Court holds that the allowance or disallowance of sequestration is a matter of judicial discretion, likewise the allowance without bond. See Ludwig v. Calloway, 191 La. 1000, 187 So. 4, where it was said:

"The jurisprudence is uniform that the law vests the power in the district judge to ex proprio motu and without bond judicially sequester property without a hearing, where, after considering all the pleadings and the facts and circumstances alleged by the parties, he is of the opinion that the ends of justice require such action and this decision is left largely to his discretion. Articles 273 and 274, Code Prac. * * *

"In the case, Succession of Pavelka, 157 La. 480, 102 So. 579, 580, we said:

`* * * It is within the judicial discretion of the judge to allow or to disallow a judicial sequestration. Code Prac. arts. 273, 274.\'"

In the light of the record, the order appealed from did not involve a controlling question of...