Newman v. Baer

The opinion of the court was delivered by Blanchard, J. Plaintiffs sued for ten thousand four hundred and ninety-one dollars and nineteen cents on open accounts and notes. Alleging the insolvency of defendants, and averring the statutory' grounds embodied in Secs. 4 and 5 of O. P. 240, they caused defendants’ property and effects to be attached and garnishment process to issue to a number of their debtors. Defendants were merchants and owed varipus other creditors: Crawford, Jenkins &. Booth, claiming a debt of six hundred and seventy-eight dollars and ninety-three cents, intervened, contesting the attachment, alleging the same to be fraudulent and collusive, intended to defeat the creditors of defendants and to aid the latter in fraudulently disposing of and placing their property beyond the reach of their creditors. They denied that any indebtedness existed on part of defendants to plaintiffs, and averred, in substance that the whole proceeding on part of plaintiffs was a fraudulent device, the result of a collusive agreement between them and defendants. Theirs was a revocatory action, set up by intervention, seeking to [325] annul acts of their debtor in alleged collusion with others, done in fraud of their rights. They prayed judgment setting aside and annulling the attachment, and decreeing the debt declared on to be fraudulent and fictitious. These parties had previously, but subsequent to plaintiffs, in a •separate suit in the same court, sued out writs of attachment against defendants, under which they had caused to be seized the same property previously seized by plaintiffs. They had prosecuted their suit to judgment, decreeing recovery of amount claimed and sustaining their attachment, with recognition of privilege as attaching •creditors. Bight other creditors of defendants, who had likewise first sued separately and attached the same property, filed similar interventions, making substantially the same allegations and asking decrees similar to that prayed for by Orawford, Jenkins & Booth. The largest of the claims set up in the interventions was seven hundred .and nineteen dollars and thirty cents; the smallest one hundred and ninety dollars and twenty-seven cents. They aggregated three thousand five hundred and twenty-two dollars and twenty-nine cents. Plaintiffs answered the interventions, denying the fraud and conspiracy charged, declaring the good faith of their attachment and averring that the same was based on a valid indebtedness for the whole amount claimed. Defendants answered the interventions denying the allegations of fraud, conspiracy and collusion. They filed no answer to plaintiff’s demaud, nor to the original •suits of the intervenors. There was judgment in plaintiffs favor against defendants for the .amount sued for, sustaining their attachment, recognizing their privilege as attacking creditors and ordering the property seized to be sold to satisfy their demand, except in so far as the intervenors were concerned, who were, in the same decree, awarded judgment .against plaintiffs, annulling and setting aside the attachment in so far as it affects the rights of the intervenors, and adjudging the latter to be paid by preference out of the proceeds of the attached property in the order of the levy of their respective writs. The effect of this judgment is to settle first out of the proceeds of [326] the property the claims of the intervenors, and awarding to plaintiffs on their judgment the remainder. The property attached was estimated in the sheriff’s inventory at ten thousand one hundred and eighty-two dollars and eighty-nine cents. Plaintiffs appeal, and in this court are met by motions to dismiss filed on behalf of each intervenor, on the ground that their respective judgments, ordering payment by preference out of the funds n the sheriff’s hands are each below the appealable jurisdiction of this court On Motion to Dismiss. The question presented by the motions must be considered settled adversely to the contention of intervenors. Plaintiffs’ debt and attachment were placed at issue by the averments of the interventions and thus constitute the matter in controversy. The amount claimed by plaintiffs at the institution of the suit imparts to it its character in relation to its susceptibility of being the object of an appeal — that is to say, so far as regards the plaintiffs, all the incidents in the suit are subject to an appeal. Hart vs. Lodwick, 8 La. 167; Lumber and Shingle Company vs. Hart, 48 An. 1035; Picard & Weil vs. Wade, 30 An. 625; 31 An. 452; 24 An. 442; 21 An. 366; 2 An. 189. The motion to dismiss is denied.