Keith v. Renard & Co.

IdsijEY, J. On the 12tb day of April, 1864, Benard & Co., of the city of Now York, instituted, in the Sixth District Court of New Orleans, an attachment suit, having, for its basis, a judgment of the Supremo Court of the State of New York, rendered in June, of the year 1850, in favor of the plaintiffs in the said suit, and against Lewis S. Bobbins and other defendants, jointly and severally. In this attachment suit against Lewis S. Bobbins,- W. W. Keith, the plaintiff in the present action of rescission, was made a party, and it was in tho said suit decreed, that certain immovable property, which stood recorded in Keith’s name, and which was, at tho time of the seizure thereof, in his possession, should be made subject1 to the attachment of Benard & Co., as the property of Lewis S. Bobbins, it being at tho same [735] time decreed, tliat Keith’s titlo to the said property was a simulative and fraudulent one, and that the said property «belonged not to Keith, but in reality to Lewis S. Bobbins, against whom tho New York Judgment was recognized as a valid claim. Both Lewis S. Bobbins and W. W. Keith being absontoes, each of them was represented and defended by a curator ad hoc, contradictorily with whom tho proceedings were carried on till final Judgmont; and it is to sot aside that Judgmont, so far as it affects Keith that he instituted the present recission action. As grounds of nullity, he sets up various defects in the proceedings; but his main rebanee rests on Article 614, of the Code of Practice, that he was “a person absent, that he had no knowledge of the action having been brought against him, and that no debt existed, either for tho whole or a part of the sum for which Judgment was obtained, and the property seized for the purpose of satisfying it. Were this simply an action of nullity to set aside and annul the Judgment rendered in the attachment suit for dofects in tho Judicial proceedings connected with and portaining to the said suit, this Court would unhesitatingly have adopted the ruling of this tribunal in Seymour v. Cooley, page 79, 9 La. That the .defects complained of in this case could only be remedied on an appeal, and that an action of nullity was not the remedy; but Keith, the plaintiff, occupies a position, if he falls within the scope of Arts. 267, 268 and 614 of the Code of Practice, which renders it immaterial how the proceedings in tho attachment suit were conducted, legally or illegally. If he was an absentee, had no knowledge of the action having been brought against him and no debt was due, he must succeed in this suit unless the articles of tho Code on which he relies are absolutely restrictive, and can be invoked solely and exclusively by the absent debtor. It is evident that Keith was an essential party to the attachment suit as his titlo to the property attached, legal on its face and his possession, had first to be declared simulated and fraudulent before that property could be made legally subject to the attachment. It would have been leg’ally competent for Keith in that suit to controvert, by all legal means, the validity of the claim of Benard & Co. against Lewis S. Bobbins, as if he succeeded in this they would have no right to assail his title. See Dumas et al., v. Lebebvre, 10 Rob. 401; Fose v. Fose, 4 An. 135; Judson v. Connelly, 5 An. 400. Would it not then be strange, indeed, if Keith, who, as well as Lewis S. Bobbins, had the legal right to show that Bobbins was not indebted to Benard & Co. for tho whole or a part of the. sum for which the Judgment was obtained, should although standing precisely in the same attitude as Bobbins in this particular, were yet unable, like him, to avail himself on a logal showing of this equitablo remedy, founded, as it is, on’ ’natural Justice, honesty and right. Wo cannot sanction a distinction which would open the door for relief to Lewis S. Bobbins, and close it [736] to liis oo-defenclant, Keith, who, upon every principle of justice, is equally with Robbins, entitle^ to the full benefit of it; and we therefore maintain Keith’s action of rescission in the mode contemplated by Arts. 267, 268 and 614 of the Code of Practice. Ho must, however, show, satisfactorily, that he was, at the time of the suit, absent from the State. An absentee who had no knowledge of the attachment suit to which he was made a party, and all this is proved beyond all doubt. The evidence of the debt sued on consisted of a foreign judgment,, which was prescribed on its face, and which, it does not appear, was ever revived by means of a scire facias, as contemplated by law. We agree fully with the reasons assigned by the Judge of the District Court, .for regarding this judgment in no other light than as ah extinguished obligation. See section 1st, Act No. 274; Acts 1853, page 250. Keith then brings himself fully within the equitablo remedy provided for by the articles of the Code of Practice before referred to ; and there is, therefore, no error in the judgment pronounced by the District Court. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, and that the appellant pay the costs of appeal.