"By
Thompson, Judge:
"M
B. Smith, individually and as transferee, instituted suit
against the Little Pine Lumber Company, on claims for
advances and labor aggregating $ 5,588.28. Asserting a lien
and privilege, a sequestration was issued, and there was
seized thereunder all of the lumber on the millyard, on the
tramroads and railroads and the logs in the woods belonging
to said lumber company.
"George
C. Vaughan & Sons, Inc., intervened in the suit, alleging
that the lumber company was indebted to it in the sum of $
14,688.32 for advances, and that it had a pledge and pawn on
the property seized superior to the privilege claimed by the
plaintiff.
"Later
said intervener filed a supplemental petition in which it was
alleged that $ 5,550 of the amount claimed in the original
petition of intervention, represented the purchase price of a
certain motor truck sold by the intervener to the lumber
company, to secure which intervener had a vendor's lien
and privilege on said truck. A sequestration was issued at
the instance of intervener, and said truck was seized. The
truck was not seized by the plaintiff under his writ of
sequestration and no privilege was claimed by the plaintiff
on said truck.
"The
original petition was put at issue by the plaintiff, but no
service of either the original
or supplemental petition was made on the lumber company, and
no issue was joined as between intervener and said lumber
company.
"After
a trial, judgment was rendered in favor of the plaintiff and
the intervener against the lumber company for the amount of
the respective claims of said parties, and recognizing the
privilege claimed by each on the property seized under
plaintiff's writ of sequestration with priority in favor
of plaintiff. The vendor's privilege was also recognized
in favor of intervener on the truck seized under the writ of
sequestration issued by intervener for the amount claimed
thereon. No appeal was prosecuted from this judgment.
"We
are informed incidentally from the pleadings (there is no
evidence of the fact) that the truck was seized under the
judgment in favor of intervener and sold by the sheriff and
bought in by the intervener at the price of $ 1,350, which
amount is in the hands of the sheriff. Before the sale of the
truck, A. L. Honeycutt filed a third opposition in which it
is alleged that the Little Pine Lumber Company
was indebted to him in the sum of $ 448.55 for advances made
to the said company to secure which opponent held a chattel
mortgage on the Motor Truck and which mortgage was superior
in rank to the vendor's privilege claimed by Vaughan &
Sons, Inc.
"It
was further alleged that the judgment in favor of Vaughan &
Sons, Inc., and against the lumber company in so far as it
recognized a vendor's privilege on the truck, was null
and void and of no effect, for the reasons which are
substantially as follows: That under a written agreement
between Vaughan & Sons and the lumber company, Vaughan & Sons
were to make advances to the lumber company, and that company
was to sell to Vaughan & Sons all of the lumber manufactured
by it; that during the life of said contract the lumber
company purchased, or agreed to purchase, from the Greenlaw
Truck & Tractor Company of New Orleans a motor truck to be
used for logging purposes; that pursuant to the agreement of
Vaughan & Sons to make advances to the lumber company at the
request of the said company Vaughan & Sons paid the said
Greenlaw Truck Company the sum of $ 1,500, the cash portion
of the purchase price for said truck, and the balance in
monthly installments, and charged the same to the account of
the lumber company; that said truck was delivered to the said
lumber company, and that all of the lumber manufactured by
the lumber company was turned over to Vaughan & Sons; and
that the proceeds of the sale of said lumber was credited to
the account of said lumber company.
"It
is further alleged that in view of the fact that said truck
was bought by and for the said lumber company and paid for by
and with funds which Vaughan & Sons agreed to advance to the
said lumber company in consideration of their agreement to
permit Vaughan & Sons to handle the entire output of their
saw-mill, and that the said Vaughan & Sons, not having sold
the said truck to the said lumber company, did not have a
vendor's lien and privilege on same.
"It
is further alleged, in the alternative, that should the court
hold that the said truck was purchased by Vaughan & Sons and
sold to the lumber company, and that it did have a
vendor's lien on same, then and in that case petitioner
shows that said truck was paid for by the lumber company out
of the proceeds of the sale of lumber, sold for its account
by said Vaughan & Sons, and credited to the account of the
lumber company.
"There
are other allegations which it is not necessary here to refer
to.
"In the beginning of its answer to the
opposition of Honeycutt, Vaughan & Sons pleaded as a matter
of law that all the facts and allegations contained in the
opposition were put at issue in the original suit and passed
upon before a court of competent jurisdiction after this
opponent and the Little Pine Lumber Company had its day in
court; and that said matters and things therein adjudicated
are now final and conclusive and now adjudged; that the said
judgment which recognized the vendor's lien and privilege
of this opponent has not been appealed from, and is now final
and executory, and same cannot be collaterally attacked in
these proceedings, and which said judgment is now pleaded in
bar of the proceedings by said A. L. Honeycutt. And it is
further alleged that the matters therein decided cannot be
reopened nor attacked, and is binding upon the whole world,
and particularly as to the parties hereto and their privies
and those holding under them.
"For
the purpose of this opinion it is not necessary to refer to
other matters set up in the answer, except to say that the
answer admits the execution of the chattel mortgage as set up
in Honeycutt's petition. The plea of res judicata was
tried and sustained, and the opposition of Honeycutt, in so
far as it sought to attack the judgment recognizing the
vendor's privilege and reopen the matter of said judgment
relating to said privilege, was dismissed, without prejudice
to said Honeycutt, to prove the verity or rank of his
mortgage with said vendor's lien of Vaughan & Sons.
Thereupon counsel for Honeycutt asked for an order of appeal
from the judgment sustaining the plea of res judicata, which
was denied by the court. The court then ordered the case
proceeded with. The counsel for Honeycutt declined to offer
any proof, and counsel for Vaughan & Sons then asked for
judgment in accordance with their petition, and judgment was
so rendered, dismissing the opposition of Honeycutt without
reserve, and ordering the proceeds of the sale of the truck
paid over to Vaughan & Sons. From this last judgment, as also
the judgment sustaining the plea of res adjudicata, the
opponent Honeycutt appeals.
"On
Motion to Dismiss.
"The
appellee, Vaughan & Sons, move to dismiss the appeal on the
ground that the opponent has not introduced any evidence
whatsoever in support of his claim, and has not shown that he
is creditor of the Little Pine Lumber Company, nor that he
has or had a chattel mortgage on said truck, and is therefore
without any interest in this suit without any
right to take an appeal.
"The
motion cannot be sustained. It would indeed be a strange rule
of law and jurisprudence that would deny a litigant the right
of appeal for want of interest, whose suit had been dismissed
in the lower court on a plea of res judicata and he has been
denied the right
to show that the party against whom he was contesting for the
proceeds of property had no privilege thereon which would
outrank his.
"The
record as we view it shows that the appellant has a most
vital pecuniary interest in having the two judgments reviewed
and set aside. One of these judgments denied appellant the
right to show that Vaughan & Sons had no privilege at all on
the truck on which he (Honeycutt) asserted a chattel
mortgage, because of the fact it is said that said
vendor's privilege had been recognized by a judgment
between other parties, and to which Honeycutt was neither a
party or a privy. And the other judgment dismissed his
opposition absolutely and without reservation, and ordered
the funds in contest to be paid over to another creditor.
"The
lack of interest to appeal is claimed by reason of the fact
that on the final trial appellant Honeycutt offered no proof
in support of his chattel mortgage and debt. The situation
didn't require him to make any proof. No proof was
necessary. The door was closed against him in so far as he
might attempt to show that Vaughan & Sons had no privilege.
The court had settled the question of vendor's privilege
in another suit. The answer of Vaughan & Sons to the
opposition of Honeycutt admitted the execution of the note
and chattel mortgage as set out in Honeycutt's petition.
There only remained, therefore, so far as Honeycutt was
concerned, the question of priority of privilege; that is to
say, whether a chattel mortgage outranks an already...
