Wheelwright v. The St. Louis, New Orleans And Ocean Canal And Transportation Company

• Decision Date: 01 January 1895
• Docket Number: 11,591
• Citation: 47 La.Ann. 533,17 So. 133
• Court: Louisiana Supreme Court
• Parties: WILLIAM D. WHEELWRIGHT v. THE ST. LOUIS, NEW ORLEANS AND OCEAN CANAL AND TRANSPORTATION COMPANY

17 So. 133

47 La.Ann. 533

WILLIAM D. WHEELWRIGHT v. THE ST. LOUIS, NEW ORLEANS AND OCEAN CANAL AND TRANSPORTATION COMPANY

No. 11,591

Supreme Court of Louisiana

January 1, 1895

[Copyrighted Material Omitted]

APPEAL from the Twenty-second Judicial District Court, Parish of St Bernard. Livaudais, J.

The property of the defendant was attached in the District Court for St. Bernard, in suits of Guichard, Cusachs and Janin each of the said parties claiming privileges upon the property under registered claims of privilege. While so attached, the sheriff suggested to the court that he had been notified by the police jury to construct a dam across the mouth of the canal; in the opinion of the jury the then existing condition of the canal being a menace to the community. That having no funds whatever wherewith to do the work, he applied to the court to be authorized to expend for and on account of the defendant a sum sufficient to defray the expenses needed for that purpose. An ex-parte order was granted accordingly. The sheriff subsequently made a return to the court, in which he stated that he had expended, under the authority so given, an amount which, added to his costs and expenses, made up the sum of one thousand three hundred and thirty-three dollars.

While matters were in this situation plaintiff obtained a judgment in the Circuit Court of the United States recognizing and making executory a mortgage which he claimed against the same property of the defendant, which was under attachment in the St. Bernard court.

The possession of the property by the sheriff under the writs from the State court standing in the way of the execution of his judgment, plaintiff instituted an action in the St. Bernard court, in which, after reciting the fact of his having obtained the judgment mentioned, he prayed it be recognized and ordered to be executed in the State court. Coupled with this demand, he prayed that Guichard, Cusachs and Janin, the attaching creditors, be made parties to his suit, and that, contradictorily with them, it be decreed that they had no privilege, and that their rights, if any, be held subordinate to his own, and that it be decreed that they take nothing out of the proceeds of the sale of the property until his own judgment be satisfied. He prayed that the police jury, of St. Bernard be also made a party, alleging that he had been informed that it claims a preference right over his judgment for expenditures made by it in the erection of a dam across the mouth of the canal, pending the litigation between defendant and Janin, Cusachs and Guichard, and that the same disposition should be made of that claim as that which he asked for in respect to others.

These various defendants answered, setting up the existence and validity of their respective claims, averring that they were supported by privilege, and superior to any which plaintiff had, if any he had, which they denied.

Pending this suit, Guichard obtained judgment in his suit on his claim, recognizing that it was secured by privilege as asserted, and ordering a sale of the property to satisfy it, and for costs.

The District Court rendered judgment recognizing plaintiff's judgment and mortgage, ordering it to be enforced by sale, but decreeing that out of the proceeds of sale Guichard's judgment be paid by preference over plaintiff, and decreeing that the sum of eleven hundred and thirty-three dollars, paid by the sheriff of the parish of St. Bernard, in carrying out the order of the court, in building a dam across the mouth of the canal, under the notification of the police jury to him so to do, be taxed as costs in the suit, and be also paid by preference over plaintiff.

From the judgment in favor of Guichard, and of the sheriff, the plaintiff appealed.

Farrar, Jonas & Kruttschnitt, for Plaintiff and Appellant.

Clement L. Walker, for R. F. Guichard, Defendant, Appellee.

William Armstrong, for E. Nunez, Sheriff, Defendant and Appelle.

John Dymond, Jr., and Albert Estopinal, Jr., for Police Jury of St. Bernard, Defendant and Appellee.

OPINION

NICHOLLS, C.J.

In the pleadings the "Police Jury of St. Bernard" is made to appear as the party claiming remuneration for the cost of construction of the dam, whilst in the evidence and In the judgment of the District Court the claim is dealt with as one due to the sheriff. It seems to be conceded by all parties here that this variance was the result of a mistake, and that the claim for the levee work (attacked by the plaintiff and defended in the suit) was, in reality, a claim advanced by the sheriff, and not by the police jury. Apparently consent is given that it should be passed on by us as such.

The first question which meets us is the correctness or incorrectness of the judgment of the District Court, recognizing that the amount of the indebtedness due by the defendant company to Guichard is secured by lien and privilege, and that by virtue thereof his claim primes the mortgage claim of the plaintiff. The latter admits the existence of the indebtedness to the amount declared on, but denies the existence, quoad himself, of a privilege as supporting it. He contends that even if from the nature of Guichard's claim the law created a privilege securing their payment, the same law made this privilege in its effect, as such, upon pre-existing mortgages dependent upon the registry of the claims, in the manner and at a time and place which has not been complied with. In support of this position, counsel refer us to Art. 3274 of the Civil Code, as amended by Act No. 45 of the regular session of 1877, which article as amended provides that "no privilege shall have effect as against third persons, unless recorded in the manner required by law, in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act, or other evidence of the debt, is recorded within seven days from the date of the act or obligation of indebtedness, when the registry is to be made in the parish where the act was passed, or the indebtedness originated, and within fifteen days if the registry, is required to be made in any other parish of this State. It shall, however, have effect against all parties from date of registry."

The registered act upon which Guichard relies was recorded on the 24th of December, 1891, long after the registry of plaintiff's mortgage, and is as follows: "Robert F. Guichard, being duly sworn, does depose and say that the St. Louis, New Orleans and Ocean Canal and Transportation Company is justly and truly indebted to affiant in the full sum of twenty-three hundred and thirty-six dollars and twenty-one cents, exclusive of interest and costs, as the whole does more fully appear, together with all necessary particulars, from affiant's petition with the exhibits thereto annexed, which are about to be filed in the Twenty-fourth Judicial District Court of the State of Louisiana, for the parish of St. Bernard, and that for the payment of said claim, with interest and costs, affiant claims a lien and privilege on the property of the said company, real and personal, which is situated in said parish, and especially its canal property, as described in the records of the parish."

Turning to the record of the case of Guichard against the defendant company, which has been copied into the transcript, we find, independently of any question whether the claims declared on in that case were really secured by privilege or not, that "the dates of the acts or obligation of indebtedness" preceded by over seven or fifteen days the date of the registry of Guichard's affidavit of indebtedness. The District Judge was of opinion that that fact made no difference, for two reasons: First, for the reason that Guichard's right to a privilege had been recognized by a judgment of court, and secondly, because the law-maker had declared in the article cited that although a privilege had been tardily registered, yet it should have effect against all parties from the date of its registry, and inasmuch as a privilege in its nature and outside of the question of the date of its creation outranks a mortgage, it necessarily follows that mortgage rights are subordinated to privileged rights regardless of the dates of their respective registry.

Whether or not in reaching his conclusion on the first point the District Judge adopted the view of the defendant that this litigation was a collateral attack upon Guichard's judgment, and that the issue attempted to be raised here could only be raised in a direct action of nullity, or whether he was of the opinion that the judgment obtained by him was conclusive of the question of privilege, as res judicata, he was equally wrong. Plaintiff was not a party to the...