Levert v. Berthelot

Statement of the Case. NIOHOLLS, J. Plaintiff alleged: That defendant was indebted to him in the sum of 83,155.13, with legal interest, for this: That, desiring to cultivate and make a rice crop on his plantation situated in the parish of Iberville, he (plaintiff), in order to accommodate him, consented to temporarily make the necessary advances in cash and — 1008 — supplies for said crop until defendant could make arrangements for advances with other parties (which had been done by him), and, when said arrangements were so made, the advances made by petitioner were to be paid back or reimbursed. That from December 14, 1907, to the 27th of March, 1908, inclusive, petitioner advanced cash and supplies to the said Berthelot, including interest, to the amount of $3,155.13, as would appear from an account annexed, which had been acknowledged by the said Berthelot. And that he had a privilege for the said advances on the crop of rice then being made or raised on said plantations, and that the sworn account for said advances had been recorded in the office of the recorder of this parish as required by law. Petitioner prayed: That the said Joseph B. Berthelot be cited, and that he have judgment against him for the sum of $3,155.13, with legal interest, from March 11, 1908, on $3,132.94 until paid, and all costs of suit. That the privilege on the said crop of rice then being raised on said plantations be recognized, and in duty bound for all general and equitable relief. Defendant answered. After pleading a general denial, he then assumed the position of plaintiff in reconvention, alleging that, at the beginning of the planting season, he made arrangement with the plaintiff, John B. Levert, whereby the said Levert agreed to advance appearer or procure said advances for appearer, to make, cultivate, and harvest a crop of rice on his Virginia and other properties during the year 1908, said advances to become due and payable out of the sale of the said rice crops. That said Levert, when the time arrived to draw up and sign formal contracts evidencing said agreements, withdrew and absolutely refused to carry out his said, agreements. That in Consequence, late in season, and in the midst of a financial stringency, appearer was forced to secure elsewhere the advances that the said Levert had agreed to make to appearer. That said breach of contract of said Levert caused appearer worry, inconvenience, loss of time, and mental and financial trouble, for which aijpearer claimed the sum of $1,500 damages, and appearer claimed the further sum of $1,500 as punitory damages against the said Levert for said breach of contract. Appearer prayed that the suit of plaintiff be dismissed at his cost; that appearer have judgment on his demand in reconvention against John B. Levert in the full sum of $3,000, with 5 per cent, per' annum interest thereon from judicial demand until paid, for trial by jury, and for costs and general, relief. On August 24, 1908, plaintiff filed an amended petition, alleging that the crop of rice on the defendant’s plantation had matured, that a large portion had been harvested and disposed of, and that a considerable portion remained to be gathered, and a small portion had already been harvested and was then on the place, and that he feared that the defendant would conceal, part with, or dispose of the crop during the pendency of this suit. He asked for a writ of sequestration, which was granted. On August 28, 1908, defendant presented a petition to the court to bond the property which had been seized, and obtained an order for this purpose and executed a bond of release on August 31st. On September 28th defendant filed a motion to dissolve the writ of sequestration on various grounds, which was overruled. On October 12th the Louisiana Sugar Company filed a third opposition and intervention in the case, alleging that on the 11th day of March, 1908, it entered into contract by notarial act with the defendant for advances for $14,000 for the purpose of making, cultivating, and harvesting a rice crop on his plantation for the year 1908, — 1010 — which up to the time of the harvesting of the crop had been advanced and expended, for which it had a right to be paid by privilege and preference out of the proceeds of the crop raised on the plantation, and particularly that portion which had been seized and sequestered; that its rights were secured by privilege on the crop and pledge thereof and a special mortgage; that on plaintiff’s application the sheriff of the parish of Iberville had under order of the court sequestered a portion of the crop on which it had a privilege. It obtained a leave to file a third opposition, under which the plaintiff and sheriff were ordered to show cause why it should not be paid by privilege and preference out of the proceeds of the crop sequestered the amount of its advances. Plaintiff answered the third opposition, claiming the privilege of a higher rank than that of the Louisiana Sugar Company. On these issues the case went to trial before a jury. During the trial plaintiff objected to any evidence on the part of defendant to establish damages claimed by him on the ground that the allegations in the answer were indefinite and vague, and, further, because, in the absence of an allegation of bad faith on the part of Levert, nothing but actual damages could be proved. The objection was sustained, and defendant excepted. Thereupon defendant asked leave to amend his answer so as to meet plaintiff’s objection, but the court refused to allow the amendment, and a bill of exceptions was reserved. The jury rendered a verdict of non-suit against the demand of all parties. Thereupon the court rendered judgment making the verdict executory. Levert has appealed. The defendant and the third opponent did not do so, but have moved to dismiss the appeal, and, in the alternative and under reservation, answered the appeal, asking that the judgment of the lower court be amended. The defendant Berthelot moved to dismiss the appeal on the ground that the plaintiff and appellant had not exhausted all of his remedies in the lower court, in this: that he failed to make application to the trial court for a new trial of said case. He averred that a formal judgment based entirely on the verdict of the jury was written up and signed by the judge of the district court dismissing the demands of all parties as in cases of nonsuit, but mover specially pointed out that there were no words or language of any kind in said formal judgment of nonsuit such as “the law and the evidence being in favor of this judgment” or “the verdict of the jury being in accord with the law and the evidence,” or “the law and the evidence being in accord with the verdict of the jury and this judgment,” etc., which might be-taken to be a concurrence by said judge in said verdict of nonsuit by the jury that the plaintiff having failed to make application for a new trial, and having failed to invoke the concurrence vel non or any ruling of any kind upon the verdict of the jury in the case of the subject-matter in dispute has not exhausted his remedies in the lower court, has acquiesced in the verdict of nonsuit, rendered by the jury in this case, and is without right or standing on any appeal to the Supreme Court. The Louisiana Sugar Company, describing itself as intervener and appellee, moved to dismiss the appeal on the same ground. The alternative prayer of the defendant Berthelot for an amendment of judgment was that .the judgment appealed from be so amended as to allow him a judgment on his demand in reconvention for the sum of $3,-000, with legal interest from judicial demand until paid, and to condemn plaintiff to pay costs in both courts- as prayed for by defendant. The alternative prayer of the Louisiana Sugar Company, describing itself as third op — 1012 — ponent, intervener, and appellee, in the case for an amendment of judgment, was that the judgment appealed from should be so amended as to dismiss the demand of the plaintiff, and allow intervener and third opponent, the Louisiana Sugar Company, a judgment against John B. Levert and the sheriff of the parish of Iberville, recognizing intervener’s claim to be paid by privilege and preference the sum of $14,000 out of the proceeds of the crop of defendant Berthelot seized and sequestered, in this case as against all parties and particularly as against John B. Levert, and condemning plaintiff, Levert, to pay costs in both courts as prayed for in intervener’s petition. Defendants’ motion to dissolve the sequestration was based upon allegations that no legal bond had ever been furnished, and that the pretended bond filed for said sequestration was absolutely null and void, for the following reasons, among others, to wit: “(1) That said bond was dated November 24, 1908. “(2) Said bond recited that J. B. Levert appears as principal, but his signature is nowhere attached thereto. “(3) Said bond does vnot pretend upon its face to bind any one as surety, nor from its contents is there any way to hold any one as surety thereon. “(4) Said bond is signed by ‘E. B. Talbot, Agent,’ but there is nothing upon the face of the bond to justify the signature of an agent thereto, nor is there any statement on the bond or references in the body thereof showing in whose behalf or for what purpose the signature ‘E. B. Talbot, Agent,’ is attached. “(5) That the signature ‘John Deblieux’ is not identified with the bond by any language justifying his connection therewith, or fixing any responsibility whatever on said Deblieux. “Mover shows that he was compelled to bond said illegal writ of sequestration in order to obtain the release of the property seized by the sheriff at an expense of $17 to the bonding company, and was further put to the expense of employing attorneys to have said sequestration set aside; that the services of said attorneys are worth fully the sum of $150, for which mover should have judgment against the plaintiff, J. B. Levert, with legal interest from judicial demand. “Wherefore, mover prays that the writ of sequestration sued out in this case be dissolved by the court, and that there be judgment in his favor and against the plaintiff, J. B. Levert, in the full sum of $167, with 5 per cent, interest thereon from judicial demand until paid for the wrongful issuance of said sequestration and the wrongful seizure of mover’s property, and further prays for costs and general relief.” The bond attacked was as follows: “Know all men by these presents that we, John B. Levert of the city of New Orleans, as principal, and-, as security, resident of the parish of Iberville, are held and firmly bound unto Joseph A. Grace, clerk of the Twenty-First judicial district court of Louisiana, in and for the parish of Iberville, in the full sum of fifteen hundred dollars, for the payment of which we bind and obligate ourselves our heirs and assigns firmly by these presents. In testimony whereof we hereunto set our hands at the parish of Iberville this 24th day of November, 1908. The condition of the above obligation is such that, whereas the above bounden, John B. Levert, has filed in the aforesaid Court, in the cause entitled John B. Levert v. Joseph B. Berthelot, a petition and order praying for a writ of sequestration to issue to the sheriff of the parish of Iberville, commanding him to seize the crop of rice in the field or harvested on the property of defendant, or a sufficient amount of property sufficient to satisfy the claim of the said plaintiff in said cause. “Now, if the said above bounden, John B. Levert, shall well and truly pay any and all damages which the said defendant shall suffer in consequence of the wrongful issuance of said sequestration, then and in such case this obligation shall be null and void, otherwise to remain in full force and virtue. ‘TSigned] E. B. Talbot, Agent. “[Signed] John Deblieux. “Signed in the presence of: “[Signed] Philip G. Rhorer.” On the Motion to Dismiss. The grounds assigned for a dismissal of the appeal are without force. 1. A judgment which after reciting that “this case having been submitted to a jury, and. the jury having returned with a verdict or judgment of nonsuit against the demand of the plaintiff, a verdict of nonsuit against the reconventional demand of the defendant and against the intervention and third opposition of the opponent and intervener, it is therefore ordered adjudged and decreed that the demands of said parties, to wit [naming them] be dismissed as of nonsuit,” — 1014 — manifestly adopts and makes the verdict of the jury the basis of the judgment so rendered, and is sufficient. McDonough v. Thompson, 11 La. 566. 2. The constitutional right of appeal from the verdict of a jury is not lost by a failure to apply for a new trial. Kramer v. City & Lake R. R. Co., 51 La. Ann. 1689, 26 South. 411. On Prayer to Amend Judgments. Where by the verdict of the jury the demand of the plaintiff was nonsuited as was also the reconventional demand of the defendant, and likewise the demand of the intervener, and thereupon the plaintiff appealed, but the defendant and intervener did not, the latter as appellees are not entitled on the appeal of the plaintiff to bring before the court for adjudication on the appeal the demand of the defendant in reeonvention and that of the intervener on its intervention under a prayer for an amendment of the judgment appealed from. Those parties are not seeking an alteration of a judgment which the plaintiff has obtained in his favor, but the absolute reversal of the judgments which had been rendered against them, respectively, on their individual demands. We do not think that the intervener is before the court at all. He was not made a party by the plaintiff, but on his own motion connected himself temporarily with the case by an intervention granted him by leave of court. When the intervention was thrown out of court, intervener’s connection with the case ceased, unless it should have been maintained through an appeal taken by itself. We understand the case under present existing conditions to be simply one between the plaintiff on his demand and the defendant purely as such (that is, with his reconventional demand eliminated) while the plaintiff has been thrown out of court by a judgment of nonsuit, leaving the writ of sequestration still standing after the defendant had been placed in possession of the property sequestered under a forthcoming bond as he, as shown by the evidence, has turned it over to the intervener. We are not informed as to the theory or ground on which the jury acted in nonsuiting all parties. We infer that it was of the opinion that the throwing of the plaintiff out of court carried with it as a necessary consequence the dismissal of the entire case. We think that as matters stand the only parties properly before us asking relief are the plaintiff, who is seeking the recognition of his own rights, and the defendant, who is resisting the present proceedings. It will be seen by reference to plaintiff’s pleadings he claims that in making advances personally he had done so temporarily in order, to enable him to tide over the interval between the dissolution of the firm of Devert, Burguieres & Co., which had been advancing the defendant for a number of years past and the obtaining by him of advances from other parties, in which event his temporary advances were expected to be taken up by the parties so subsequently making them and carried forward for the year as part of their advances for that year. He and the witness Tremoulet testified to that effect, but the defendant testified that such was not the fact; that the understanding was that his advances were to be paid for out of the proceeds of the crop of the year. The jury was evidently of the opinion that the bringing of the present suit by the plaintiff was premature and unnecessary; that by the recording by him of his account and giving notice to the intervener plaintiff could have fully protected his rights in the premises, and they were in fact fully protected; that he had himself suggested to the defendant that he should obtain advances from other parties, and therefore contemplated necessarily that defendant should ship his crop — 1016 — to those parties in due course of business. It therefore nonsuited'the plaintiff, leaving him to proceed by direct action hereafter for the enforcement of his rights contradictorily with defendant and the intervener. We may say incidentally that we are not of the opinion that the plaintiff undertook to make advances to the defendant for the entire year 1908. What he did was in the way of assistance to him in extricating him out of an existing financial difficulty. We are of the opinion that by the verdict of the jury and through the judgment appealed from justice has been done to all parties. Weill v. Kent, 52 La. Ann. 2139, 28 South. 295. The judgment is therefore affirmed. MONROE, X, concurs.