E. Marqueze & Co. v. LeBlanc

The opinion of the court was delivered by De Blanc, J. The defendant, C. O. Le Blanc, is a resident of the parish of Lafourche. Plaintiff brought suit against him in the court of his residence, and obtained from said court an attachment against his property. Under the impression, as they were, that the Sun Mutual Insurance Company and Herrmann & Yignes, of the city of New Orleans, have in their possession property and effects belonging to their debtor, plaintiff195 had them cited as garnishees, to appear before the court in. the parish of Lafourche, and there answer the interrogatories propounded to them. In obedience to said citation, the garnishees appeared before said court, and, so far as we can judge from the order in which the documents are classed in the transcript, first filed their answer to the interxogatories, and on the same day the Sun Mutual Insurance Company .filed an exception declining the jurisdiction of the Lafourche court, on the ground that its domicile is in the city of New Orleans. If our impression is correct, if we are not mistaken as to the time when and the order in which these answers and exception were filed, the exception can not be maintained, for it folibwed instead of preceding the only answer which a garnishee is allowed to make. In so doing, the in.surance company submitted to and accepted the j urisdiction of the court before which it appeared. C. P., art. 93. Were it otherwise — had the exception been filed before the answer— would it have sustained the garnishee’s pretensions, and justified the dismissal — not of a suit — but of mere interrogatories propounded to that .party? We believe not. And why ? Because a garnishee is but “ a stake! holder, a ¡custodian of the property attached in'his hands; he has’no pecuniary interest in the matter, no costs to pay; none to save; his bush ness is to let the law take its course between the litigants.” 14 An. 373; 18 An. 476. He can not contest or even answer the demand of plaintiff •against defendant; he can, legally, answer but the interrogatories pro-1' pounded to him.' In this ease, the insurance company relies on articles 89 and 162 of the Code of Practice, which provide, one, that the defendant — not the garnishee — shall be cited at his domicile; the.other, that no domicile shall be elected for the purpose of being sued elsewhere than in the parish of one’s residence. Is there in those articles a single expression prohibiting any litigant from submitting to and accepting the jurisdiction of a competent court? The law prohibits nothing more than an agreement entered into, in and by which one consents, in advance and before the institution of a suit, to be sued elsewhere than at the domicile mentioned in the Code. 2 L. R. —; 18 An. 88.. The articles relied upon by appellee do- not conflict with or repeal article ninety-three of the Code of Practice, which provides “ that if one .be cited before a judge whose jurisdiction does not extend to the parish of his domicile or .usual residence, but who is competent to decide the cause brought before him, and he pleads to the merits, instead of declining the jurisdiction, the judgment given shall be valid, except defendant be a minor. Did the insurance company appear in the court, the jurisdiction of which is now contested ? Did it file its answer in said court ? Is and was that court competent ? This is not and can not be disputed. [196] If incorporated in one general provision, articles 89, 162, and 93 could not bo made to clash. The first part of the general provision composed of those three articles would establish tho general rule that a defendant must be sued at his domicile; the second part would confirm that rule and prohibit any agreement to be sued elsewhere than at said domicile; the third would place it in tho power of parties to accept or decline jurisdiction, to waive or enforce a personal privilege, to reduce or multiply' litigation. That privilege, however, is one that only defendants can claim and exercise, and does not extend to garnishees, who are but stakeholders and custodians. If there had been any intention of repealing article ninety-three of the Code of Practice, would it have been retained in the revised edition, and in every edition published since 1861 ? What was tho object of the law amendatory of the one hundred and sixty-second article of the Code of Practice ? Was it to protect defendants, to give'them a right which then they had not ? It was not, for before the adoption of that law they could agree or refuse to be sued out of the parish of their residence? That law did not add to their right, had no reference to them, and was passed to protect the home creditor against the effects of an election of domicile, which had become tho invariable condition of nearly every sontract entered into beyond the limits of the debtor’s parish. In the case of Charles E. Alter vs. J. B. Pickett, reported in tho twenty-fourth Annual, and that of Benjamin L. Harris on vs. Carondelet Street and Carrollton Railroad Company, not yet reported, the court’ said “ that the garnishee is not bound to go beyond the court of his own jurisdiction to answer interrogatories.” And why ? Because, as under, article 642 of the Code of Practice “ the seizure of rights and effects can be made but in the parish where they arc held, it would seem that the' garnishment process should be issued by a court of the same parish.” In support of that opinion, they refer to the case of A. Roohereau & Co., 24 An. 311. In the case there referred to, what were the facts ? Plaintiffs sued defendant, a resident of the parish óf St. James, in one of the courts of' this city, and, from that court, obtained an order of attachment and garnishment. Defendant excepted to tho jurisdiction of tho New Orleans' court, on the ground that he was a resident of the parish of St. James.. The lower court dedded that it had no jurisdiction of the defendant, but that it had jurisdiction of the property attached. On appeal, the Supreme Court reversed that judgment, dismissed the attachment, and, for so deciding, alleged that the conservatory remedy should have been issued by the court of the debtor’s residence. In another case, the Slaughter.-IIouse Company (a corporation created by act of the General Assembly) being cited as a garnishee, filed the ex [197] •ception that it was subject to no other jurisdiction but that of the Superior District Court; that, as to it, every other court in the State was divested of jurisdiction. What did this court answer? That may be true as regards original process, but it does .not hold when the company is made garnishee. The court which rendered the judgment out of which springs the garnishment process necessarily has jurisdiction over the party made garnishee. 26 An. 531. Article 250 of the Code of Practice provides “ that a garnishee may bo made a party to the suit, and be cited to answer interrogatories on facts and articles, either by praying to that effect in the original petition, or by a supplemental petition filed at any stage of the suit previous to judgment. Is it not manifest, from every word of that article, that the process by garnishment is a branch, an incident, a material part of the original suit — a part which one can see and touch — and that the original suit, its incidents, its branches, are subject to one and the same jurisdiction? C. P. 154. When an attachment is obtained before judgment, to what suit can the garnishee be made a party ? Is it to a separate suit to be instituted against him ? If so, how vain it was to declare that he can be made a party to a proceeding against him, ho.w extravagant to insist that interrogatories may be attached to the plaintiff’s original petition or to a supplement. Why attach them to a petition deposited in the court of defendant’s domicile, if they are to be filed, answered, traversed, and passed upon in another jurisdiction and by the court of the garnishee’s domicile ? We repeat it, the garnishee is at most a qualified defendant. The articles, therefore, which relate to defendants, to actions against them, do not and can not legally be made to apply to a garnishee. The latter is cited as a witness; he is called upon, not to answer to a demand against him, but merely to disclose whether he has property and effects belonging to the real and only defendant in the case. Judgment, we admit, can be rendered against him, but how and under what circumstances ? As a penalty, not otherwise, when he refuses or neglects to answer, or, when answering, he swears falsely, and thereby justifies the presumption that he is in possession of the property attached. Any other construction would lead to the irrational conclusion that the execution of a judgment maybe denied to the court by which it was rendered and confided to every other court in the State, and this in disregard of the article of our Code which provides “ that the execution of judgments belongs to the courts by which the causes have been tried in the first instance.” C. P. 617. If the power to execute can be wrested from the court which heard and decided, and transferred to and distributed among the other courts, [198] how and by what criterion determine the jurisdiction in which to proceed against the garnishee ? Shall it be by the amount claimed by plaintiff against defendant, or the amount due by the garnishee to defendant? These difficulties may be avoided by a strict interpretation of the articles referred to. They are plain and just; they are not repugnant to any existing law; they do not impose on the garnishee any unreasonable burden; he can, without leaving his domicile, answer tho interrogatories propounded to him, and — if his answers be honest and true — he has nothing to apprehend, no expense to incur, no costs to pay. Why, then,, compel tho creditor to resort to a multiplicity of actions, and to often spend more than he can realize ? • It is therefore ordered, adjudged, and decreed that tho judgment of the lower court be and it is hereby annulled, avoided, and reversed, and appellee’s exception overruled and ser aside. It is further ordered, adjudged, and decreed that this case be remanded to the lower court to be proceeds :f in according to law, and that appellee, tho Sun Mutual Insurance Company, pay the costs of tho appeal.