Williams v. Gilkeson-Sloss Commission Company
| Decision Date | 01 June 1893 |
| Docket Number | 1266 |
| Citation | 13 So. 394,45 La.Ann. 1013 |
| Court | Louisiana Supreme Court |
| Parties | MRS. M. K. WILLIAMS AND HUSBAND v. GILKESON-SLOSS COMMISSION COMPANY |
APPEAL from the Fifth District Court, Parish of Morehouse. Richardson, J.
Potts & Hudson and F. T. Baird, for Plaintiffs and Appellees.
Newton & Cason and Ellis & Hall, for Defendants and Appellants.
Plaintiff is the wife of John A. Williams, a member of the firm of Bond & Williams. In 1891 this firm became indebted to her in the sum of $ 5912.
The defendants were the commission merchants of the commercial firm of Bond & Williams, to whom they advanced supplies and furnished money during that year in a large amount.
In November, 1891, they executed a draft on the defendant to pay their indebtedness to plaintiff.
The plaintiff, the payee, endorsed the draft and forwarded it to the defendant, with direction to place the amount to her credit.
In December of that year, the firm of Bond & Williams being financially embarrassed, and not having complied with its obligation to the defendants, the latter sued them and obtained a writ of attachment.
They alleged in their petition in that suit that, after allowing al proper credits, there was a balance due them of $ 16,292, as per itemized account.
Their account was filed in evidence on the trial; it shows that on December 1, 1891, the plaintiff was credited for the amount of her draft, and that the firm of Bond & Williams was charged with the amount so credited.
Judgment was pronounced for the said balance upon due proof of the amount of the indebtedness.
It includes the sum of $ 5912, amount of plaintiff's draft.
Property attached, movable and immovable, was seized and sold. It was bought by the defendants.
The amount of the sale did not satisfy the judgment; there is a large balance due to the defendants, who are absentees.
The plaintiff sues to recover the amount of the draft forwarded to the defendants as stated, and prayed for writ of attachment and for garnishment process, which were issued, and certain claims of the defendant were taken possession of under the writ.
In reference to this draft the plaintiff testified in the case at bar in support of defendant's account (which account had been previously proved up in case 6852), filed in their suit against Bond & Williams, and denied that any agreement was entered into differing from the allegations and the judgment obtained against her late debtors, the firm just named. One of the defendants states, as a witness, that there was an agreement that the money was not to be paid until all the indebtedness of Bond & Williams had been paid.
That the amount of the draft sued on in this case is charged to Bond & Williams.
The testimony of a witness (defendant's agent) who testified in the suit of defendant's agents, Bond & Williams, No. 6852, that he knew nothing further than is stated on the face of the draft, and of another witness, was admitted over defendant's objections.
On the trial of the case at bar the testimony of these two witnesses and the letter marked A were offered to prove the agreement alleged in defendant's answer, was excluded for the reason set forth in the plea of estoppel.
There was no copy of the citation and of the petition and writ of attachment, posted at the court-house door.
Personal service was made on the curator ad hoc appointed to represent the absent defendant.
The curator ad hoc appointed by the court was also the attorney of the defendants.
He, as curator ad hoc, applied to the court for an order authorizing the defendants to take possession of the property attached on their furnishing bond.
He, as attorney for the defendants, not as curator ad hoc, had previously agreed with the attorney for plaintiff to the delivery of the property attached to the defendants on their furnishing solvent bond.
The bond was furnished by the defendants, represented by their authorized attorneys.
The property was delivered to them.
Judgment was pronounced in favor of the plaintiff for the amount claimed, and the property attached was ordered to be sold in satisfaction of the claim.
The defendants appeal.
The plaintiff answers and prays for damages for a frivolous appeal. The bill of exceptions reserved by the defendants to the court's ruling, excluding the testimony of two witnesses, and the letter marked A, will be considered with the merits of the case.
The defendants defend on two grounds:
1. That the service is illegal; the required posting of the petition, citation and writ of attachment at the court-house door not having been complied with.
2. That the defendants became the owner of plaintiff's claim, and were subrogated to her rights under a verbal stipulation that no payment would be exacted of them before the collection of the amount of plaintiff's draft from the drawers -- the firm of Bond & Williams.
In reference to the first proposition the plaintiff's counsel argue that the defendants waived the informality of service of citation and writ of attachment by their appearance in the suit and furnishing bond, and obtaining the possession of the property attached.
In reference to the second proposition they plead an estoppel, for the reason that the defendants in their suit against Bond & Williams, A. Baldwin & Co., and others, intervenors, recovered judgment for the amount and placed themselves in such attitude as to preclude the possibility of sustaining the defence, that the plaintiff is not a creditor as alleged.
This brings us to the first point, that embraced in the motion to dissolve the writ of attachment.
The defendants in their agreement to bond the property attached, and in their petition for the order authorizing them to furnish bond and take possession of the property, did not reserve any right to plead informality of service.
They appeared in the suit and unqualifiedly delivered to the sheriff their obligation to satisfy such "judgment to the value of the property attached as may be rendered against him in the suit pending."
It is the appearance authorized by Art. 259 of the C. P.
It is characterized as an appearance in the suit.
The only question for our decision is, does that appearance cure the informality of service alleged?
It is determined in a number of decisions that the appearance of a defendant in a suit cures want of citation.
Our attention is directed by defendant's counsel to the case of Love vs. Dickson, 7 M. N. S. 167, that defendant's giving bond and taking the property out of the possession of the sheriff does not...
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