Modisette v. Hathaway

On Motion to Dismiss Appeal. SOMERVILLE, J. Plaintiff, the assignee of a judgment creditor of U. S. Phillips, instituted this revocatory action against Phillips and George Hathaway, alleging that certain described real estate standing in the name of Hathaway was really the property of Phillips; and was subject to seizure for Phillips’ debts, particularly under the judgment held by him against Phillips. Plaintiff made other allegations usual in a petition for a revocatory action. A default was taken against Phillips. Hathaway, the principal defendant, answered, denying the material allegations made by plaintiff. There was judgment in favor of plaintiff against both defendants. Phillips has not appealed. Hathaway filed a petition for an appeal, without making his codefendant, Phillips, a party thereto. Plaintiff moves to dismiss the appeal taken by Hathaway, on the ground that all the proper parties are not before the court. It is well settled that all parties to the record who are interested in maintaining a judgment must be made parties to the appeal from it. But the defendant Phillips was not a necessary party to this suit, and he is not interested in maintaining the judgment appealed from. He is not, therefore, a necessary party to the appeal taken by his codefendant. [1] Had plaintiff been an ordinary creditor of Phillips, the latter would have been a necessary party in a suit to set aside a sale made by him which was alleged to be simulated. C. C. art. 1972. But plaintiff | has had his claim against Phillips liquidated by a final judgment. The property of Phillips is subject to seizure and sale thereunder without further proceeding on 'the part of plaintiff against Phillips. Here the plaintiff’s claim was already liquidated by a judgment, and there was clearly no necessity for making Phillips a party to the suit, which could have been maintained in his absence against the ostensible owner of the property alone. The ostensible owner of the property which is sought to be restored to the debtor, in order to be applied to the satisfaction of the latter’s debts, has a right, notwithstanding the judgment, to controvert the plaintiff’s demands' in the same manner as the debtor ■might have done before said judgment. G. C. art. 1972; Dumas v. Lefebvre, 10 Rob. 399. [2] In this proceeding, plaintiff alleges that there is certain described property standing in the name of Hathaway which belongs to Phillips, his judgment debtor, and he asks that it, or so much thereof as may be necessary, be declared subject to seizure and sale under his judgment against Phillips. If the property in question belongs to Hathaway, then Phillips has no interest in the question as to whether or not it shall be seized and sold by plaintiff. If it belongs to Phillips, then it may be seized under the judgment held by plaintiff against him. If Phillips had been the vendor of the property to Hathaway, he might have been a necessary party to the suit. But he was not. The allegations are to the effect that Hathaway was only an ostensible owner, who had acquired titles from certain named third persons, and that he held the pieces of property for account of Phillips, or as security for debts owed by Phillips to him. Those vendors should have been made parties defendant. [1039] It has long been settled that a judgment debtor is not a necessary party defendant in a revocatory action. “It is true that, under the authority of article 1970 of the Civil Code, we have often recognized the doctrine that a creditor, who wishes to institute a revocatory action, must either have his debt liquidated by a judgment, or make the purchaser of the property of his debtor a party to the suit for the liquidation of his claim, and, in some instances, that the necessity of making the original debtor a party to the revocatory action, only exists where the debt has not been previously liquidated by a judgment, and that, in this ease, the plaintiffs sue as judgment creditors of J. J. Hall. See TAtwell v. Belden & Co.] 1 La. 503; [Cole v. Bartlett] 4 La. 132; [Regillo & Bryan v. Lorente] 7 La. 142; LLambeth v. McMurray] 15 La. 470; [Potier v. Harman] 1 Robinson, 525. But here the question is not whether it was necessary to make J. J. Hall, the original debtor, a party to this action, for as to him the plaintiffs have done what they were bound to do. Civil Code, art. 1967.” They had had their debt liquidated. Hyde v. Craddick, 10 Rob. 387. In considering the case of Dumas v. Lefebvre et al., 10 Rob. 399, it was held: “Now, it is well settled in our jurisprudence that though a creditor, who wishes to institute a revocatory action, must either have his debt liquidated by a judgment, or make the purchaser of the property of his debtor a party to the suit for the liquidation of his claim (Civil Code, art. 1970), the necessity of making the original debtor a party to the suit for annulling his contract, attacked on the ground of fraud and simulation, only exists when the debt has not been previously liquidated by a judgment. [Atwell v. Belden & Co.] 1 La. 504; [Lambert & Thompson v. McMurray] 15 La. 470; [Potier v. Harman] 1 Rob. (La.) 525; and Hyde and another v. Oraddick, lately decided [10 Rob.] 387. Here the plaintiff’s claim was already liquidated, * * * and there was clearly no necessity for making the appellant a party to' the suit, which could have been maintained in her absence, and against her son alone, with as much propriety and legality as if the suit had been instituted against both.” See, also, 2 Hennen, 1034; § 2, No. 1; Russell v. Keefe, 28 La. Ann. 928; Block v. Marks, 47 La. Ann. 107, 16 South. 649. [3] As Phillips was not a necessary party to the suit, and is not interested in maintaining the judgment appealed from, and is not' interested in contesting the seizure and sale of Hathaway’s property, if it belongs to Hathaway, he is only a nominal party, without any real interest in the judgment appealed from, and he is not therefore a necessary party to the appeal. Boguille v. Faille, 1 La. Ann. 205; Francis v. Scott, 5 La. Ann. 668; Boykin v. O’Hara, 6 La. Ann. 115; Hobgood v. Brown, 2 La. Ann. 323; Eschert v. Harrison, 29 La. Ann. 860; Brannin v. Womble, 32 La. Ann. 805; Sicard v. New Orleans Railway & Light Co., 137 La. 838, 69 South. 271. U. S. Phillips not being a necessary party to the suit or to the appeal, the motion to dismiss the appeal is denied. O’NIELL, J., concurs in the decree.