Lahn & Co. v. Carr

• Decision Date: 03 February 1908
• Docket Number: 16,873
• Citation: 120 La. 797,45 So. 707
• Parties: LAHN & CO. v. CARR In re COURREGE et al
• Court: Louisiana Supreme Court

45 So. 707

120 La. 797

LAHN & CO. v. CARR

In re COURREGE et al

No. 16,873

Supreme Court of Louisiana

February 3, 1908

Certiorari to Court of Appeal, Parish of Iberia.

Action by Lahn & Co. against A. P. Carr. Judgment for plaintiff. On levy of execution, Jean Courrege and others, third opponents asserted the vendor's privilege. On appeal the Third circuit court found for plaintiffs, a rehearing was granted and judgment reversed in part; and Jean Courrege and others bring certiorari or writ of review. Dismissed.

Felix Voorhies, for applicants.

Barnette & Roberts, for respondents Lahn & Co.

Gordy &amp Gordy, for respondent J. I. Case Threshing Mach. Co.

Benjamin Pearce Edwards, for respondent Carr.

Preston Joseph Green, Raphael Joseph Labauve, William Benjamin White, and Felix Joseph Samson, for other respondents.

OPINION

MONROE, J.

Statement of the Case.

It appears, from the petition and return in this case, that opponents leased their farm for the year 1905 to defendant, and that, pending the lease, plaintiffs, who are ordinary judgment creditors of defendant, issued execution and caused to be seized and sold thereunder a thresher, a traction engine, several carts and wagons, an oil tank, two pumps, and a lot of rice belonging to the defendant, some of which articles were found on the leased premises and some were not; that opponents, by third opposition, asserted the lessor's privilege and right of pledge on the proceeds of said property; that the J. I. Case Machine Company asserted a vendor's privilege on the proceeds of the engine; that Theodore Laporte asserted a similar privilege on the proceeds of the carts, wagons, and oil tank; and that Richard B. Saiz asserted a privilege for his wages as a laborer on the proceeds of the rice; that, on appeal to the Third circuit court, as formerly constituted, that tribunal held that the engine was not an agricultural implement -- the fact that it was "casually" attached as a motive power to the thresher not making it so, especially as the J. I. Case Machine Company, vendor of the engine, was not the vendor of the thresher, which had been seized and sold separately from the engine.

Applicants allege that a rehearing was granted, in terms which reopened the whole case, but that the present Court of Appeal (successor to the former) reversed the judgment previously rendered in so far as the claim of said machine company was concerned, and declined to review the case in other respects, and that said rulings were erroneous, in this, to wit: That the entire case had been reopened, and properly so, since the issue to be determined relates to the to the distribution, in concurso, of the proceeds of the property of A. P. Carr among his creditors, each of whom is a necessary party thereto; that the mere casual attachment of the traction engine to a thresher, bought from another person and paid for, did not give to such engine the character of an agricultural implement, within the meaning of Civ. Code, art. 3259, or article 3227, or of the decision of this court in the case of Laporte v. Libby, 114 La. 570, 38 So. 457. Wherefore they pray that the judgment complained of be reviewed, and the case either remanded to the Court of Appeal to be considered in its entirety, or else finally decided in their favor. The opinion of the Court of Appeal recites that the trial judge decreed that the privilege of the vendor of the traction engine was superior to that of the lessor of the land, but that its predecessor (the Court of Appeal for the last Third circuit) had held that the lessor was entitled to the preference, and had then, upon the application of the vendor, granted a rehearing; and the learned court goes on to say:

"Other creditors of A. P. Carr asserted their privileges in the case; but as the application was made by the J. I. Case Machine Company only, and the rehearing was granted to that company, the consideration of this case will be restricted to the question of priority between the vendor's and the lessor's privilege. The trial court held that the engine was a farming utensil, in the sense of article 3259, Civ Code, and, under the ruling of the court in the case of Laporte v. Libby, 114 La. 570, 38 So. 457, in the course of their opinion, our predecessors said: 'The sole remaining question to be decided is whether a traction machine, per se, is a farming utensil or not, considering it is used for pumping water on the crops and running the thresher. Laporte v. Libby * * * holds that a threshing outfit, as a whole, is a farming utensil; but it is hard to say whether an engine used for various purposes would be in strict line with that decision.' Continuing, the court says: 'Mules could not be termed agricultural implements, and yet the engine supplies the power that was formerly supplied by them.' Counsel for the lessor adopted this line of argument.

"The evidence shows that the traction engine in question was not used only for the purpose of pumping water on the rice crop of the lessee, but was also used for the cultivation and harvesting of his crop for the year 1905, the proceeds of which formed the subject-matter of this controversy.

"It is admitted by counsel, * * * if it [the engine] had been bought with the thresher as a whole, it would be a farming utensil, under the ruling in the case cited; but it is contended that, as it was bought separately, it cannot be classed as a utensil of that description. The fact that an engine and thresher be bought separately does not furnish a criterion by which they are to be classified as farming utensils or not. It is the use to which such machines are applied which determines their character as implements of husbandry or farming utensils. The thresher cannot perform the service for which it is designed, unless it is propelled by the thresher engine, which becomes * * * a necessary attachment. When combined and applied to the cultivation of the crop, they become component parts of a machine which, as a whole, is destined to the uses of...