National Park Bank v. Concordia Land & Timber Co.

• Decision Date: 25 May 1925
• Docket Number: 26548
• Citation: 105 So. 234,159 La. 86
• Parties: NATIONAL PARK BANK v. CONCORDIA LAND & TIMBER CO. (BLACK RIVER LUMBER CO., Garnishee). CONCORDIA LAND & TIMBER CO. v. BLACK RIVER LUMBER CO
• Court: Louisiana Supreme Court

105 So. 234

159 La. 86

NATIONAL PARK BANK v. CONCORDIA LAND & TIMBER CO. (BLACK RIVER LUMBER CO., Garnishee).

CONCORDIA LAND & TIMBER CO. v. BLACK RIVER LUMBER CO

No. 26548

Supreme Court of Louisiana

May 25, 1925

Rehearing Denied June 22, 1922

Appeal from Tenth Judicial District Court, Parish of Concordia; N M. Calhoun, Judge.

Suit by the National Park Bank against the Concordia Land & Timber Company, with garnishment of the Black River Lumber Company consolidated with a suit by the Concordia Land & Timber Company against the Black River Lumber Company, which filed plea in reconvention. From judgment for plaintiff in reconvention, both National Park Bank and the Concordia Land & Timber Company appeal.

Affirmed.

G. P. Bullis, of Vidalia, and Wm. B. Grant, of New Orleans, for appellant National Park Bank.

G. P. Bullis, of Vidalia, and Hudson, Potts, Bernstein & Sholars, of Monroe, for appellant Concordia Land & Timber Co.

A. B. Stratton and W. C. Kirk, both of Chicago, Ill., Merrick & Schwarz, of New Orleans, and Dale, Young & Dale, of Vidalia, for appellee Black River Lumber Co.

BRUNOT, J. O'NIELL, C. J.

OPINION

BRUNOT, J.

The litigants are nonresident corporations. The National Park Bank is domiciled in New York, the Concordia Land & Timber Company in Wisconsin, and the Black River Lumber Company in Delaware. Each corporation was organized under the laws of the state in which it is domiciled. The Concordia Land & Timber Company and the Black River Lumber Company complied with the laws of Louisiana and were authorized to do business in this state. Both the Concordia Land & Timber Company and the Black River Lumber Company owned property in Concordia parish, La., and there conducted business.

The National Park Bank is the holder and owner of a series of past-due notes, made and executed by the Jeffris Lumber Company unconditionally indorsed by the Concordia Land & Timber Company. Following the maturity of all of the notes of this series, the Jeffris Lumber Company was declared a bankrupt, and in the liquidation of the affairs of the bankrupt the National Park Bank received 20.1 per cent. of the total sum represented by said notes, leaving a balance due thereon of $ 56,517.04. The National Park Bank sued the indorser of the notes, the Concordia Land & Timber Company, in the district court of Concordia parish, for this balance, attached the property of the defendant, cited it through a curator ad hoc, and served garnishment proceedings upon the Black River Lumber Company. The defendant did not appear or answer the suit, and the garnishee did not file answers to the interrogatories served upon it; thereupon plaintiff entered a preliminary default as to the defendant, and, the defendant still failing to appear or answer, the plaintiff proved its demands, and the court rendered a final judgment against the defendant for the full amount of its claim, and a like judgment, pro confesso, against the garnishee. A few days after the rendition of this judgment, the garnishee filed answers to the interrogatories propounded to it by the plaintiff. It is not necessary to mention the suit to annul and the proceedings which immediately followed, as this court disposed of them in the case of National Park Bank v. Concordia Land & Timber Co., 154 La. 31, 97 So. 272; National Park Bank v. Concordia Land & Timber Co., 154 La. 31, 97 So. 272.

About the time the opinion in the cited case was handed down, the Concordia Land & Timber Company filed a suit against the Black River Lumber Company. The petition charges that the Black River Lumber Company cut and removed from certain described lands 3,225,000 feet of timber owned by the petitioner; that the timber was cut and removed without the knowledge or consent of petitioner; that it was well worth, as lumber, at the nearest shipping point, $ 600,000; and the prayer of the petition is for a judgment in favor of petitioner and against the Black River Lumber Company for that sum, with 5 per cent. per annum interest thereon from January 1, 1920, until paid. For answer, the defendant admits that it cut and removed 3,224,127 feet of timber from portions of the land described in the petition, but it denies that the timber so cut and removed was owned by plaintiff, and it avers that all of the timber was cut and removed during the years 1918 and 1919. Defendant admits that it is a nonresident corporation, that it has an office, domicile, and agent in Louisiana; and that it is doing business in this state; but it denies all other allegations in the petition. Defendant pleads the prescription of one year as a bar to the claim sued upon, and, as plaintiff in reconvention, the defendant prays for a judgment in its favor and against the Concordia Land & Timber Company for $ 56,104.62, with interest on $ 45,370 at the rate of 7 per cent. per annum from about June 15, 1918, and a like interest on $ 2,500 from December 9, 1917, and 6 per cent. per annum interest on the following sums: $ 2,474.72 from November 5, 1916, and $ 3,059.90 from November 27, 1917.

The cases were consolidated, and the trial resulted in a judgment dissolving the attachment sued out by the National Park Bank against the Black River Lumber Company, garnishee, and rejecting its demands against the garnishee; sustaining the plea of prescription filed by the Black River Lumber Company, in bar of the suit against it by the Concordia Land & Timber Company; rejecting the demands of the plaintiff in that suit; sustaining the plea of prescription to a part of the reconventional demand of the Black River Lumber Company; awarding that company a judgment, as plaintiff in reconvention, against the Concordia Land & Timber Company for $ 26,432.52, with reservation of the right of plaintiff in reconvention to sue for any balance which may thereafter be due it under the Concordia Land & Timber Company's contract of suretyship entered into May 16, 1917; and taxing the National Park Bank with the costs of the garnishment proceedings and the Concordia Land & Timber Company with all other costs.

From this judgment the National Park Bank and the Concordia Land & Timber Company have appealed.

The two cases present a number of interesting questions, but if it be found that the plea of prescription filed by the Black River Lumber Company was properly sustained, the tireless labor of counsel and the wide research they have made in marshaling decisions for this court's guidance must be regarded as a labor of love rather than of practical value, because, if the Concordia Land & Timber Company's right of action against the Black River Lumber Company was prescribed, there is no bone over which there can be a contention between the National Park Bank and the garnishee, and there will remain only one question to be decided in the suit of the Concordia Land & Timber Company against the Black River Lumber Company, viz.: Whether the Black River Lumber Company is entitled to a judgment in its favor on its reconventional demand in that suit.

We will therefore dispose of the plea of prescription before considering the other questions raised by the pleadings. For this reason it is not necessary to enumerate at this time the other pleas filed and the several issues presented by them.

The plea of prescription is based upon Civil Code, arts. 3534, 3536, and article 3537, as amended by Act 33 of 1902. These articles of the Code treat of the prescription of one year, and article 3537, C. C., is as follows:

"The prescription mentioned in the preceding article runs:

"With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.

"And in the other cases from that on which the injurious words, disturbance or damage were sustained.

"And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof."

The learned district judge considered the plea of prescription in connection with the garnishment proceedings and the suit of the National Park Bank v. Concordia Land & Timber Co. and Black River Lumber Co. v. National Park Bank, and said:

"There can be no question but that the garnishment was that of an unliquidated claim for damages arising out of a tort, and so is also the demand of the Concordia Land & Timber Company one for unliquidated damages, growing out of an alleged tort -- the tort in the two cases constituting one and the same transaction."

The judge quotes article 28 of the Code of Practice, and finding that no contractual relation whatever existed between the Concordia Land & Timber Company and the Black River Lumber Company, he properly held:

"That the act of the Black River Lumber Company in the cutting and removing the timber in the manner charged in the petition was either an offense or quasi offense."

Offenses and quasi offenses are torts. According to Mr. Bishop:

Tort "denotes an injury inflicted otherwise than by a mere breach of contract; or to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created, etc."

Am. & Eng. Ency. vol. 28, p. 255, distinguishes a tort from a breach of contract as follows:

"A tort may be distinguished from a breach of contract in that the right of action in the latter case arises out of the agreement of the parties, whereas the right of action for a tort arises out of a duty fixed by law and independent of the will of the parties."

Judge Cooley says:

"Certain acts or omissions are made public offenses by the common law or by statute, either because their inherent qualities and necessary tendencies make them prejudicial to organized society, or because it is believed that the...