Union National Bank v. Hyams

The opinion of the court- was delivered by Nicholls, C. J. The first question we are called on to consider is whether the action of the District Court, setting aside the judgment which the Union National Bank had obtained the Firemen’s Building Association pro confesso for neglect to answer the interrogatories propounded to it, is before us for review. Appellant contends that it is; the Firemen’s Building Association that it is not. Though this action of the court was taken on the 17th of June, 1897, the same day in which the final judgment appealed from was rendered, it was not embodied therein, but was made the subject matter of a separate and distinct ruling. The judgment in the main case was signed by the District Judge — the action taken upon the rule to set aside the pro confesso judgment was unsigned. The motion for an appeal, the order of appeal and the bond of-appeal all refer to the judgment appealed from as being that rendered on the 17th of Jnne and signed on the 23d of June. We do not think the ruling of the court on the motion to vacate the judgment in favor of the Union National Bank [1118] against the association is before us as part of the final judgment appealed from. Appellant contends that granting this to be so, it comes properly before us as one of the interlocutory orders given in the case of the Bank against Henry Hyams. The final judgment rendered, in that particular case is not before us — the association was not a party to that suit — it became connected with it only through proceedings in garnishment originating after the main suit had been finally disposed of. It is true that those proceedings had their origin by reason of the suit of the Bank against Hyams, and in one sense they may be said to be incidental to it, but none the less they are separate and distinct proceedings between new parties and they must be dealt with as such, for the purpose of settling and determining the rights of those parties inter se under them, particularly when the judgment rendered therein was pro eonfesso for a neglect to answer interrogatories. We do not think this particular matter is before us on this appeal. The issues really before us are those raised under the executory proceedings of the association directed against the property mortgaged to it, and the proper and legal distribution of the proceeds of the sale of that property under the third oppositions of Mrs. Violet Hyams and the Union National Bank touching those proceeds. Three distinct actions are referred to in these proceedings: 1. The suit of the Firemen's Building Association vs. Henry Hyams; 2. The Union National Bank of New Orleans vs. Henry Hyams; 3. Mrs. Violet Strauss vs. Henry Hyams. The two former suits were consolidated, bnt the third was not. The third opposition of the Union National Bank, claiming the proceeds of the sale made in the executory proceedings of the association was filed after the sale of that property had been made under the writ of seizure. The bank, though having a judgment and a judicial mortgage on the property, and. though it was holdmg it under seizure prior thereto under its own writ of fi. fa., did not attempt to enjoin the sale upon the ground that the mortgage upon which the proceedings were being carried on had been extinguished by payment, but permitted the sale to be made and then claimed the proceeds under its judgment, its mortgage and its seizure. Preter-mitting any discussion whether under such circumstances the bank could urge that the sale had been made under a mortgage which had no existence and that it could therefore rightfully and legally claim the [1119] proceeds, we proceed to examine the ground upon which this alleged payment is made to rest. We find appellant’s contention to be that the bank shouid be forced to impute and apply the various payments made by Henry Hyams under his contract of the thirty-first day of July, 1890, upon the mortgage note which he executed on that day, and not in manner and form as provided for in that contract and by the terms of the charter of the association of which Hyams was a stockholder. That question was presented and decided in Richard vs. Southern Building and Loan Association, reported in 49 An. 481 adversely to the position taken by the appellant. The decison in that case controls the decision in this. We think the judgment of the District Court on that branch of the case correct. We think it also correct in decreeing that the Union National Bank of New Orleans be paid by preference the sum of three hundred and sixty-nine dollars and sixty-five cents out of the proceeds of the said by reason of being owner through payment, with legal subrogation of the judgment with recognition of privilege obtained by the Rosetta Gravel and Paving Company against Henry Hyams. The opposition to that portion oi the judgment has been substantially abandoned. The affirmance of the judgment appealed from in these two respects disposes of the entire fund produced by the sale of the property mortgaged to the association. Notwithstanding that fact the District Court passed upon various contentions raised by the bank and Mrs. Hyams concerning matters outside of the application of the proceeds of the sale of the mortgaged property No written reasons are assigned for the judgment, and those contentions are not specifically and separately passed on, but the decree itself indicates what the views of the court upon them must have been. The court obviously sustained the judgment of the wife against her husband, and the seizure made by her thereunder through her seizure and garnishment proceedings directed against the building association, against the attack made upon them by the bank, and held that the Union Bank took nothing in respect to the seizure of the stock by its own seizure made in 1896, under the writ of fi. fa. which had issued in 1894, in execution of its judgment and by the garnishment proceedings taken out in 1896 upon the supposed continued existence and vitality at that time of that writ. The stock in question has not been .sent to sale up to the present time. Both parties claim priority of privilege over the proceeds of [1120] the sale of that stock when it shall havejbeen made, by reason of claims by each of legal seizures thereof. That of Mrs. Hyams, made in the suit of Violet Strauss vs. Henry Hyams, is first in order of date. The record of that suit is not before us. We are not advised that the bank has ever intervened in that suit or taken any direct action against the claims of Mrs. Hyams. The parties have attacked each other collaterally in a suit in which the thing itself over which their respective contentions are now being made was not itself involved-in the suit. Thesharesof stock pledged by Henry Hyams to the association were not seized by it, and they have not been sold. The conclusions reached by us as to the application of the proceeds of the sale of the real estate render it unnecessary, we think, to pass at this time upon the respective pretensions of the parties in relation to the stock. We think the ends of justice will be best subserved by leaving those matters open for future adjustment. That purpose will be attained by affirming the judgment appealed from in so far as it deals with the proceeds of the sale of the property mortgaged, and simply reversing it as to other points. The effect of this simple, partial reversal will be the replacing of the parties in the position which they respectively occupied prior to the rendition of the judgment appealed from, free to take such proceedings and to ask such relief as they may conceive themselves legally entitled to. We are very free to say that our present impressions are adverse to the right of the bank to make the general seizure it did in 1896, and to take out the garnishment proceedings which it did at that time under the writ of ft. fa. which it had caused to issue in 1894, in execution of its judgment against Hyams. The sheriff had'made a seizure of specific real estate under that writ and had advertised and was about to sell the same when the sale of that particular property was stayed by an injunction. The injunction was not general, restraining him from executing the writ at all — its effect was limited, and he was free to seize any other property of the debtor which was subject to seizure. We scarcely think a new seizure made in 1896, under a writ of fi. fa., issued in 1894, sustainable, though a seizure made within the seventy days (the date fixed by Art. 642 of the Code of Practice for the return of writs of fi. fa.), might remain effective-for the purposes of a sale of the property. Eor the reasons herein assigned: It is hereby, ordered, adjudged aud decreed, that the judgment [1121] appealed from in so far as it decrees that the proceeds of the sale of the property seized and sold in the matter of the Firemen’s Building Association vs. Henry Hyams, be paid by preference to the Union National Bank of New Orleans to the extent of three hundred and sixty-nine dollars and sixty-five cents, and the costs of the third opposition filed in said suit by said bank, and in so far as it decrees that the balance of the proceeds of the sale aforesaid be applied to the pamyent of the mortgage claim of the plaintiff incase No. 47,152, the Firemen’s Building Association against Henry Hyams, which claim is for six thousand dollars and interest thereon at the rate of six per cent, per annum, from May 12, 1894, until paid, together with five per cent, attorney’s fees on the aggregate of said principal and interest— sixty-nine dollars and sixty cents insurance premium — thirty-seven dollars and sixty cents State tax — four dollars costs of copy of mortgage act, and all costs of suit be and the same is hereby affirmed. It is further ordered, adjudged and decreed that except to that extent the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the parties re placed in the position which they respectively occupied, just prior to the renditton of the judgment appealed from, free to take such proceedings, and to ask such relief as they may conceive themselves legally entitled to. Costs of appeal to be divided between Mrs. Violet Straus, wife of Henry Hyams, and the Union National Bank of New Orleans.