Trew v. Standard Supply & Hardware Co.

• Decision Date: 01 December 1947
• Docket Number: 18642.
• Citation: Trew v. Standard Supply & Hardware Co., 33 So.2d 426 (La. App. 1947)
• Court: Court of Appeal of Louisiana
• Parties: TREW v. STANDARD SUPPLY & HARDWARE CO., Inc.

33 So.2d 426

TREW v. STANDARD SUPPLY & HARDWARE CO., Inc.

No. 18642.

Court of Appeal of Louisiana, Orleans.

December 1, 1947

A S. Cain and John J. Finnorn, both of New Orleans, for plaintiff and appellee.

Beard & Blue, of New Orleans, for defendant and appellant.

McBRIDE Judge.

Plaintiff Francis B. Trew, brought the present suit against Standard Supply and Hardware Company, Inc., (hereinafter called 'Standard') alleging that he had been employed in the capacity of superintendent or foreman of production by Vendome Petroleum Corporation (which we will hereinafter designate as 'Vendome') at a salary of $175.00 per month, and that there is due him salary for the months of May through November, and the first eight days of December, 1942 for services performed in connection with the oil and gas well operations of his employer on the Kenilworth and St Mary Plantations in St. Bernard Parish, Louisiana. He also claims that Vendome owes him for certain 'expenses paid by him while performing work,' and also for certain advancements made by him for the account of the corporation to three of its employees. The claim is itemized as follows:

Wages due $1,271.66

Advances made to employees 95.00

Expenses 215.88

Interest 237.38

Cost of preparing and recording

lien 10.00

Attorneys' fees under Act 68 of

1942 182.99

---------

$2,012.91

It is further alleged that on March 5, 1943, plaintiff filed for recordation in the mortgage records of Orleans and St Bernard Parishes, an affidavit claiming a lien and privilege on the mineral leases, oil wells and other described property of Vendome located upon the two plantations, for the amount of the claim.

Trew sues Standard on the theory that it acquired the property of Vendome, in the proceedings entitled: 'Standard Supply and Hardware Company, Inc., v. Vendome Petroleum Corporation,' No. 2854 of the docket of the Twenty-fifth Judicial District Court for the Parish of St. Bernard, and alleges that he is entitled to have his lien and privilege thereon recognized and enforced.

Plaintiff prayed for a judgment in personam against Standard for the amount of the claim, with recognition and enforcement of the lien and privilege.

To the petition, Standard interposed two exceptions, (1) the prescription of one year, and (2) nonjoinder of parties defendant.

Before the exceptions were tried, plaintiff filed a supplemental petition which named Vendome as a codefendant, and in which he prayed for a solidary judgment in personam against both Vendome and Standard, with recognition of his lien and privilege, and for a sale of the property. The exceptions were overruled by the lower court on July 29, 1946.

Standard then filed its answer to both petitions, denying all allegations. In the alternative, this defendant pleaded that it had never acquired Vendome's property as alleged, but that Vendome had granted it a mortgage thereon to secure a large indebtedness. Standard prayed for a dismissal of plaintiff's suit, or in the alternative that its mortgage be decreed to have preference and priority over any lien claim of plaintiff. No pleading was filed by Vendome, and in due course a preliminary default was entered against this defendant.

The matter then proceeded to trial on its merits as to Standard, and for a confirmation of the preliminary default against Vendome. On December 6, 1946, the lower court rendered judgment against both defendants in solido for $1,582.54, with legal interest from March 3, 1943, until paid, plus ten per cent attorneys' fees and costs. The judgment further recognized plaintiff's lien and privilege on the property described in the original petition, and ordered that it be sold and that the amount due plaintiff be paid with preference and priority. Standard has taken this appeal from the judgment. No appeal has been perfected by Vendome, and we are concerned only with the judgment insofar as it operates against Standard

At first glance the amount of plaintiff's claim appears to exceed our maximum jurisdictional amount, but it is to be noted that included therein is the item of interest which had accrued up to the date suit was filed. Deducting the interest, which is not to be considered in determining appellate jurisdiction, the amount claimed is below $2,000.00 and the matter falls within our jurisdiction. Art. 7, secs. 10, 29, La.Const. 1921; Buras et al. v. Fidelity & Deposit Company of Maryland, 195 La. 244, 196 So. 335.

Appellant has reurged before us the two exceptions. In their argument respecting the exception of prescription of one year, counsel concede that the affidavit of plaintiff had been timely recorded in the mortgage records, but contend that the exception should be maintained for the reason that Section 3 of Act No. 68 of 1942, which repealed and supercedes Act No. 100 of 1940, provides: 'That unless interrupted by suit thereon, such lien and privilege, as herein provided for, shall prescribe and become ineffective one year from the date of recordation.' Counsel point out that the suit was not filed until April 4, 1946, or three years after the affidavit had been recorded.

Plaintiff's counsel agree that a laborer claiming a lien and privilege under the act must file suit thereon within one year from the date the affidavit is recorded. However, in seeking to avoid the effect of the plea, plaintiff asserts that he was a member of the United States Navy from September 1, 1942, until September 13, 1945, and that no prescription operated against him during that period.

The undisputed facts regarding the tenure of Trew's military service are these: His enlistment in the United States Navy was effected on September 1, 1942, but as he was not immediately called for active duty, he continued in the employment of Vendome through December 8, 1942; on the following day (December 9, 1942) he was ordered to active duty; on March 11, 1943, he was transferred to the Pacific theater of operations, and was not discharged from the Navy until September 13, 1945

Plaintiff directs our attention to the Soldiers' and Sailors' Civil Relief Act of the United States, 50 U.S.C.A.Appendix � 501 et seq., and argues that under its provisions the period for bringing the suit was suspended, and can only be counted from the date of his discharge from naval duties.

The act of Congress of October 17, 1940, Sec. 205, as amended by an act of October 6, 1942, 50 U.S.C.A.Appendix, � 525, provides in part as follows: 'The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, * * *.' (Italics ours.)

Section 604 of the act, 50 U.S.C.A.Appendix, � 584, in part reads: 'This Act shall remain in force until May 15, 1945: Provided, That should the United States be then engaged in a war, this Act shall remain in force until such war is terminated by a treaty of peace proclaimed by the President and for six months thereafter: * * *'.

At the time initially designated for the termination of the act, the United States being then engaged in a war with the Imperial Government of Japan, its provisions remained in force, and were in force when Trew received his discharge from the Navy.

Counsel for Standard maintain that the Soldiers' and Sailors' Civil Relief Act has been widely construed in Louisiana and other states, and that the majority view of the courts does not confer an absolute right of operation or stay of a proceeding unless the rights of the serviceman can not or could not be preserved or protected because of his military service, and that not all persons in the military service are automatically entitled to the benefits of the act. They argue that Trew had notice of his imminent active duty, and could have, without difficulty or inconvenience, filed his suit before being called by the Navy, and that he is not entitled to invoke the benefits of the act. In support of this argument, counsel cite the case of Charles Tolmas, Inc., v. Streiffer, 199 La. 25, 5 So.2d 372. In that case, a soldier, the lesses of certain immovable property, was sued by his lessor for eviction on the ground that there had been a violation of the lease contract. The trial court was of the opinion that there was an ambiguity in the lease contract, necessitating the presence of the respondent to determine the true intention of the parties, and for that reason granted the defendant a stay of the proceedings. The Supreme Court, on application for writs by the landlord, recalled the order of stay, without prejudice to either party, as a reading of the lease showed that the trial judge was in error in his conclusion that an ambiguity existed therein. The Court had before it for consideration, Sections 100 and 201 of the act, which authorized a stay of judicial proceedings wherein a member of the military forces was a party, in certain cases where the rights of the party would be prejudiced due to his absence and inability to defend or prosecute the action.

In the instant case, however, we are not dealing with a stay of judicial proceedings. The question presented is whether plaintiff's right of action perempted during his tenure of military service, and under the unambiguous language of Section 205, the one year period for bringing the suit was suspended until his discharge. The exception of prescription was...