Williams v. Ralph R. Miller Shows

• Decision Date: 06 October 1943
• Docket Number: 2571.
• Citation: Williams v. Ralph R. Miller Shows, 15 So.2d 249 (La. App. 1943)
• Court: Court of Appeal of Louisiana
• Parties: WILLIAMS v. RALPH R. MILLER SHOWS.

15 So.2d 249

WILLIAMS v. RALPH R. MILLER SHOWS.

No. 2571.

Court of Appeals of Louisiana, First Circuit

October 6, 1943

Rehearing Granted Nov. 15, 1943.

Johnson & Kantrow, of Baton Rouge, and S.S. Reid, of Amite, for appellant.

Morrison & Sims, of Hammond, for appellees.

DORE, Judge.

Mrs. Rachel Williams, in her own behalf, and as natural tutrix of her minor daughter, Donna Mae Williams, brought suit against Ralph R. Miller Shows to recover $10,000 as damages for injuries suffered by her minor daughter as the result of the breaking of an alleged defective "whirling swing" operated by the said Ralph R. Miller Shows in connection with a street fair conducted by the defendant in Hammond Louisiana.

The petition alleges that the said Donna Mae Williams, on the night of April 26, 1941, while in attendance at the street fair, paid the regular admission to ride the "whirling swing" and while so riding, the swing broke, thus throwing her "up into the air and upon the ground, causing her serious and grievous injury". The petition further alleges that the said accident was caused by the gross negligence and carelessness of the employee or employees of the said defendant.

Upon the allegation that plaintiff had "good reason to believe that the Ralph R. Miller Shows is about leaving permanently the State of Louisiana without there being a possibility in the ordinary sense of judicial proceedings of obtaining or executing judgment against it previous to its departure", and that a writ of attachment was necessary to protect plaintiff's interest, and after furnishing a bond, a writ of attachment issued by virtue of which the sheriff seized all the movables, equipment and paraphernalia used in conducting the street fair.

The original petition was filed on May 3, 1941. In this petition the plaintiff does not designate the status of "Ralph R Miller Shows", nor the domicile of such defendant. On May 7, 1941, plaintiff filed a supplemental petition, in which she alleges that the defendant Ralph R. Miller Shows was a commercial partnership composed of Ralph R. Miller C.L. Spencer, Mrs. C.L. Spencer, Ken Dantzler, and Clifford R. Knox, whose residences are not known to plaintiff, "and the said commercial partnership, together with all of its partners, are jointly, severally and in solido indebted to petitioner" for the sum of $10,000 as originally prayed for. Upon the proper allegation, she asked that a writ of attachment issue on the same bond as was furnished for the first writ of attachment, and which was accordingly done. In the prayer of her petition she prays that the commercial partnership firm of Ralph R. Miller Shows and each of the partners be cited to appear and answer the suit, and that judgment be rendered as prayed for in the original petition and that the writ of attachment be maintained.

On May 9, 1941, defendants obtained a rule upon the plaintiff, requiring her to show cause on May 14, 1941, why the writ of attachment issued should not be dissolved and the property attached should not be released because of insufficiency of the bond as to solvency, and because of the pecuniary insufficiency of the surety thereon. On trial, the rule was made absolute, and a judgment was signed by the trial judge dissolving the writ of attachment at plaintiff's cost. Thereafter, on the same day, plaintiff filed another supplemental and amended petition in which, after alleging that the injuries to her minor daughter were not as severe as she at first thought them to be, and reducing her claim to $1,000, and averring that the property attached is a type of property readily movable, she prayed for and obtained a writ of judicial sequestration. On May 16, 1941, defendants obtained a rule returnable on May 23, 1941, to show cause why this writ of judicial sequestration should not be vacated, the writ dissolved and the properties released from seizure. On May 26, 1941, this writ of judicial sequestration was dissolved, with permission being granted plaintiff to file a supplemental petition with bond.

Thereafter, on May 26, 1941, in accordance with the ruling of the trial judge, the plaintiff filed a supplemental and amended petition in which she reduced her claim for damages to $1,000 and prayed for judgment against defendants, in solido, for that amount. She also prayed for and obtained a writ of attachment upon a bond of $1,000 signed by McKinley Demars. On May 31, 1941, defendants obtained a rule directed to plaintiff to show cause on June 6, 1941, why this writ of attachment should not be dissolved on account of insufficiency of bond and the pecuniary insufficiency of the surety thereon. By consent the hearing on the rule was continued until June 13, 1941.

Prior to the trial of this rule, plaintiff filed with the Clerk of the Court a new attachment bond in the sum of $1,000, which bond was signed by T.W. Dunnington as surety. During the trial of the rule plaintiff offered this bond in lieu of the Demars bond, to which offering the defendants objected.

The objection was sustained. The trial judge made the rule absolute and dissolved the writ of attachment. Plaintiff obtained a writ of certiorari from the Supreme Court. The Supreme Court, after hearing, made its rule absolute, annulled the judgment of the District Court dissolving the writ of attachment. It further ordered the filing of the new or supplemental bond by T.W. Dunnington, with reservation to defendants to question the validity of the bond as to form and substance and as to the pecuniary sufficiency of the surety thereon. See 198 La. 870, 5 So.2d p. 135. The defendants have not questioned the sufficiency of this bond.

On May 2, 1942, defendants filed their answer. For answer they denied all of the allegations of plaintiff's original petition and as amended by the supplemental petition of May 7, 1941, admitting only that Donna Mae Williams attended a street fair in the City of Hammond on or about April 16, 1941; they specifically deny that there is any concern by the name of Ralph R. Miller Shows. They allege that they are all residents of the State of Louisiana; that there does not exist any partnership between themselves. In further answer they set out that if the said Donna Mae Williams was injured and received personal injuries, then that such injury and damage were not the result of any act of omission or commission on the part of any of respondents or of any employee of respondents. In the alternative, they plead contributory negligence on the part of Miss Williams. They specifically allege that they are not members of a partnership, and are particularly not partners under the commercial partnership of Ralph R. Miller Shows, or any other name; that they have no joint ownership of any property whatever, and that each individual is the owner of certain property which was unlawfully seized and attached herein.

Defendant Ralph R. Miller averred that he did not own any of the rides, vehicles, concessions, property or equipment which formed the street fair, having acted as the booking agent for the assembly of the different units which made up the entire street fair in question.

Defendants Knox, Clarence L. Spencer and Dantzler reconvened for damages due to the illegal, wrongful and unlawful attachment of their property and for attorney's fees.

By supplemental answer filed on May 8, 1942, the defendants further reconvened for attorney's fees in the sum of $1,000 incurred in the dissolution of the writs of attachment issued on May 3, 1941, and May 7, 1941, in the dissolution of the writ of judicial sequestration and the intended dissolution of the writ of attachment ordered by the Supreme Court.

On May 13, 1942, plaintiff filed another supplemental and amended petition in which she alleged that she was duly appointed and legally confirmed as the natural tutrix of her minor child on May 13, 1942, and that she was prosecuting the action in her official capacity as such.

On May 19 1942, defendants filed a motion to dissolve the last writ of attachment in which they set forth that plaintiff's allegation that they were about to leave permanently the State of Louisiana, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing a judgment against them previous to their departure, was false and untrue. They further averred that they had employed counsel to file said motion for the sum of $250 as attorney's fees. A rule nisi issued directed to the plaintiff to show cause on May 29, 1942, why the writ of attachment should not be dissolved, with $250 attorney's fees for the dissolution of the writ, with reservation to defendants of their rights to seek recovery of damages for the illegal issuance of the writ and the unlawful attachment of their property. By agreement the rule was set for...