Liminet v. Fourchy

• Decision Date: 17 April 1899
• Docket Number: 12,860
• Citation: Liminet v. Fourchy, 51 La. Ann. 1299, 26 So. 87 (La. 1899)
• Court: Louisiana Supreme Court
• Parties: MRS. HENRIETTE LIMINET, WIFE OF EUGENE DARCOURT, v. PAUL L. FOURCHY

26 So. 87

51 La.Ann. 1299

MRS. HENRIETTE LIMINET, WIFE OF EUGENE DARCOURT, v. PAUL L. FOURCHY

No. 12,860

Supreme Court of Louisiana

April 17, 1899

Argued March 24, 1899

Rehearing Refused June 12, 1899.

ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

J. H Ferguson and Albert Voorhies, for Plaintiff, Appellant.

Edward Rightor, for T. Dumas and T. Dumas Co., Limited, Garnishees Appellees.

OPINION

NICHOLLS C.J.

The plaintiff obtained judgment by confession against the defendant, for three thousand dollars, and interest.

On this judgment, she caused a writ of fi. fa. to issue, and simultaneously, by supplemental petition, took out garnishment proceedings against Theodore Dumas, individually, and the firm of T. Dumas Co., Limited, who she alleged she had reason to believe were indebted to her judgment debtor, Paul Fourchy, or had property or effects of his in their possession or under their control.

The usual interrogatories were propounded to those parties to be answered, and the same were answered by them, under order of court.

Garnishees in their answers denied expressly and directly, being either indebted to Fourchy, or having any property or effects of his in their possession or under their control.Dumas declared under oath both individually and as representing the T. Dumas Co., Limited, not only that neither he himself, nor the company was indebted to him, nor had any property of effects of his in their possession or under their control; but that, he, on the contrary, was indebted to both the company and Dumas individually, by reason of having been the attorney of the company at one time and of Dumas himself for several years.

After said answers were made and filed, plaintiff suggested that the answers made were false; that garnishees were indebted to her judgment debtor in the sum of thirty-eight hundred dollars.

On this suggestion, the court, at plaintiff's instance, ruled the garnishees to show cause why the interrogatories should not be taken for confessed, and judgment rendered against them for the amount of plaintiff's judgment and interest.

After evidence taken the District Court dismissed the rule, and plaintiff appealed.

OPINION.

If the defendant, Fourchy, had any unliquidated claims against Theodore Dumas, or T. Dumas & Co., Limited, and the existence of the same was denied by them, the proper course for him to have pursued would have been to advance them in a direct action in a petition in which those claims would be clearly and specifically set forth.

The defendants under such circumstances, would have been entitled to citation, and to have availed themselves of all exceptions and means of relief which would have existed in their favor in a proceeding so brought.

The present proceeding, though it has taken the form and shape of one brought by the plaintiff, adversely to the defendant, in which she is attempting to cause to have forcedly applied to the payment of her judgment against Fourchy, debts due to him by the garnishees, impresses us very strongly as one where the latter is seeking to have brought forward not directly as a partyplaintiff himself, but collaterally against Dumas and Dumas & Co., debts which he asserts were due by them to himself, and to establish them through his own testimony as a witness for the plaintiff.

The defendants denied all liability, and it is evident that a traverse of their answers carried with it really the injection into garnishment proceedings of a litigated suit with Fourchy technically not a party thereto.

We find from the record that in order to reach a conclusion in respect to the liability of the garnishees, we have to determine first the litigated question whether there ever was a liability, on their part, to the defendant, and if so, how much, and next, having found such indebtedness to have existed, to determine whether the same had not been entirely or partially extinguished by counter claims.

In support of their position that they were entitled to have a direct action brought against them for the establishment of any liability on their part to Fourchy, appellees refer us to several places in Waples on Attachment, where reference is made to the necessity and propriety of keeping garnishment proceedings within the narrowest bounds consistent with justice to all parties.On pages 377 and 378 the author says:

"When the plaintiff is allowed to traverse the answer of the garnishees and to contradict it by other testimony, the latter has an interest in the contest and that gives him the right to meet and refute such testimony by counter evidence.There would be no justice in a proceeding tending directly to charge him with liability unless he be allowed thus to resist it.His interest and therefore his right, is confined to his own protection from the danger of being obliged to pay twice, if he is indebted, but if he is not indebted his interest and the correlative right...