Loeb v. Fischer
| Decision Date | 26 April 1915 |
| Docket Number | 20452 |
| Citation | 137 La. 132,68 So. 383 |
| Court | Louisiana Supreme Court |
| Parties | LOEB v. FISCHER et al |
(Syllabus by the Court.)
When a court of competent jurisdiction has, by appropriate proceedings, taken property into its possession through its officers, the property is thereby withdrawn from the jurisdiction of all other courts.
Albert Guilbault and Arthur B. Leopold, both of New Orleans, for appellant.
John Dymond, Jr., and A. Giffen Levy, both of New Orleans, for appellee McLoughlin.
A clear understanding of the question before the court will be aided by a relation of the facts out of which the litigation arises. Plaintiff is the holder and owner of a certain promissory note bought from James J. Woulfe, at the time a notary public in the city of New Orleans, which note was secured by vendor's lien and privilege on a certain piece of property described in the petition where the act of sale contained the pact de non alienando. The sale was made by Samuel W. Penot to William H. Fischer, for $ 4,500. Penot declared in the act of sale that he had received $ 2,000 cash and the note of the defendant for the balance, $ 2,500. At the time of the purchase of said note by Loeb, the plaintiff, Fischer appeared before a notary public and made affidavit that he was the owner of the property involved at that time, that he had subscribed his name to the note then being transferred and which was paraphed ne varietur to identify it with an act of sale passed before James J. Woulfe, notary public, on August 20, 1912. James J. Woulfe was present at the time that Fischer made the affidavit referred to, and he then and there sold the note to plaintiff for $ 2,500. Plaintiff was represented at the time of the purchase of the note by his attorney.
February 27, 1913, James J. Woulfe was adjudged a bankrupt, and he surrendered to the bankrupt court ten different pieces of property standing in the names of others, among which was that in the name of William H. Fischer, which piece of property is involved in this litigation. July 8, 1913, William H. Fischer went before a notary public and declared that the property was in his name at the request and for the convenience of James J. Woulfe, and he then and there transferred said property to the trustee in bankruptcy of the said Woulfe for the benefit of the creditors of Woulfe; and the trustee in bankruptcy accepted title and took possession of said property.
October 10, 1913, this suit was brought by Loeb against William H. Fischer and the trustee of the bankrupt, James J. Woulfe, to have the transfer by Fischer to the trustee of the bankrupt, Woulfe, decreed null and void; for judgment against Fischer for $ 2,500 with interest, with recognition of vendor's lien and privilege against the property, asking that it be sold for the satisfaction of the note, which had then matured and that defendants be estopped from denying the property to be that of William H. Fischer, and that the note sued upon was the identical note described in the act of sale before Woulfe, notary, on August 23, 1912, and signed by said Fischer.
There was judgment in favor of plaintiff and against William H. Fischer, as prayed for, from which no appeal has been taken, and there was further judgment in favor of the trustee of the bankrupt, Woulfe, sustaining an exception to the jurisdiction of the court, from which judgment the plaintiff has appealed.
The only question presented by the exception and passed upon by the trial court was as to the jurisdiction of the civil ...
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