Strawberry Growers' Selling Co., Inc. v. Lewellyn

• Decision Date: 30 March 1925
• Docket Number: 25922
• Citation: 103 So. 823,158 La. 303
• Parties: STRAWBERRY GROWERS' SELLING CO., Inc., v. LEWELLYN (PAXTON, Intervener)
• Court: Louisiana Supreme Court

103 So. 823

158 La. 303

STRAWBERRY GROWERS' SELLING CO., Inc., v. LEWELLYN (PAXTON, Intervener)

No. 25922

Supreme Court of Louisiana

March 30, 1925

Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Columbus Reid, Judge.

Action by the Strawberry Growers' Selling Company, Inc., against John A. Lewellyn, in which J. R. Paxton intervened. From a judgment in favor of plaintiff, and against intervener dismissing intervention, intervener appeals.

Affirmed.

A. W Spiller, of Hammond, for appellant.

W. S Rownd, of Hammond, and J. M. Blache, Jr., of Hammond (Dufour & St. Paul, of New Orleans, of counsel), for appellee.

OVERTON, J. ST. PAUL, J., recused.

OPINION

OVERTON, J.

Plaintiff brought this suit to recover judgment against defendant for $ 4,568. The petition, besides setting out the aforesaid indebtedness, alleges that defendant is a nonresident, also that he is about to dispose of his property in this state with the intent to defraud plaintiff, and that a writ of attachment is necessary. The petition also sets out that plaintiff has good reason to believe that defendant has funds and credits in the hands of the Citizens' National Bank of Hammond, and that plaintiff desires to make said bank a party garnishee to this suit. The writ of attachment issued, and interrogatories on facts and articles were attached to plaintiff's petition, and a copy of the petition, together with a copy of the interrogatories thereto attached, and a citation addressed to the bank, were served upon the bank. The sheriff executed the writ of attachment by seizing the credits and amounts due defendant by the bank, and in due course the bank answered the interrogatories, which had been served upon it, and confessed that it had funds in its hands, belonging to defendant, in an amount stated by it, not sufficient to pay plaintiff's claim in full, but exceeding $ 2,000.

A day or two after plaintiff had executed its attachment, J. R. Paxton also brought suit against defendant for indebtedness due him, and attached the credits and amounts due defendant by the Citizens' National Bank, as the plaintiff herein had done, and also garnisheed said bank. Shortly after Paxton had brought his suit, he intervened in the present case, alleging that the prior attachment, issued and executed by plaintiff, was null and void, and praying that plaintiff's demand be rejected, that plaintiff's attachment be dissolved, and that he (Paxton, the intervener herein) be allowed $ 75 damages against plaintiff and the surety on its bond, as attorney's fees for dissolving said attachment.

Intervener alleged in his petition some six or seven grounds for dissolving the attachment. He now urges, however, only three of those grounds, which condensed, are:

(1) That the clerk of court cannot appoint a curator ad hoc for an absentee, without an affidavit showing the absence of the district judge.

(2) That the clerk of court cannot grant an order, making one garnishee in an attachment suit, without an affidavit showing the absence of the district judge.

(3) That the order and citation for the attachment were issued and served on a legal holiday.

The intervention was tried, and judgment was rendered in favor of plaintiff and against the intervener, dismissing the intervention, and recognizing plaintiff as having a privilege, as attaching creditor, priming intervener's privilege as such. From this judgment Paxton has appealed.

Plaintiff urges, inter alia, that an attaching creditor has no right to intervene in the suit of a prior attaching creditor, for the purpose of dissolving the latter's attachment, because of alleged defects in the procedure, with the end in view of making himself the first attaching creditor by dissolving the prior attachment.

In our opinion plaintiff's position is correct. In the case of Clamageran v. Bucks, 4 Mart 487, 16 Am. Dec. 185, a person named Mellon intervened and claimed that he was an attaching creditor of the defendant in that case, and that he had a right to intervene therein for the purpose of showing that the affidavit on which the attachment had issued in the suit in which he intervened was not made according to law and hence that all the proceedings had...