Milliken & Farwell v. Taft Mercantile Co.

JONES, J. This is a controversy between two seizing creditors as to priority of privilege on the proceeds of the sale of a certain judgment which the Taft Mercantile Company had secured against the L. A. Blouin Company. To clarify the issue, it is necessary to outline briefly the preliminary steps leading up to the sale. On January 29, 1921, Milliken & Farwell obtained judgment based on confession against the Taft Mercantile Company for four thousand six hundred eighty-three and 46-100 ($4683.46) dollars, with eight per cent interest from December 31, 1920, until paid. On May 1, 1924, the Henry Lochte Company, Ltd., obtained a default judgment against the Taft Mercantile Company in the sum of two thousand one hundred and 23-100 ($2100.23) dollars, with legal interest from demand. On April 30, 1924, the Taft Mercantile Company obtained judgment against the L. A. Blouin Co., Ltd., in the sum of one thousand nine hundred forty-four and 88-100 ($1944.88) dollars, with legal interest from November 16, 1918. On June 16, 1924, by notarial act, the Lochte Company sold, with all legal warranties, to the Blouin Company for six hundred ($600.00) dollars, all its right, title and interest in the judgment which the Lochte Company had against the Taft Company. On June 21, 1924, the Lochte Company, without notice to Taft Company, issued writ of fieri facias, seized and proceeded to advertise and sell at public auction, in satisfaction of its judgment, the judgment obtained by the Taft Company against the Blouin Company, which seems to have been the only asset of the Taft Company. On July 10, 1924, before the sale of the judgment so seized by the sheriff could take place under the writ, execution was enjoined on various grounds by Attorney Robert J. Perkins, who had a privilege on the Blouin judgment under Act 124 of 1906 for his fee. On July 10, 1924, Milliken & Farwell issued execution on their judgment against the Taft Company and seized the judgment exclusive of attorney’s fee, which the Taft Company had against the Blouin Company. On July -25, 1924, the Blouin Company, as the assignee and subrogee of the Henry Lochte Company, presented to the judge a [152] petition of intervention and third opposition in the Milliken & Farwell • case, alleging its acquisition of the aforesaid judgment of Henry Lochte Company vs. Taft Mercantile Company, the issuance of the prior writ of fieri facias and seizure thereunder; the illegal issuance of the ex parte preliminary injunction and particularly the lien and privilege granted by law to the first seizing creditor. An ex parte order was granted by the court recognizing the superior lien and privilege of the L. A. Blouin Company, owner of the judgment obtained originally by Henry Lochte Company, and the sheriff of the Parish of St. Charles was , ordered to take notice of the said order and advise all bidders at the sale of the rights of the L. A. Blouin Company. The sheriff accepted service of the petition and order of court. This petition was filed in St. Charles parish on August 2, the day of the sale. This judgment, exclusive of attorney’s fee, was duly advertised under Milliken & Farwell’s writ of sale for cash, and on August 2, 1924, was adjudicated to the Blouin Company, as the last and highest bidder, for the sum of one thousand five and 0-100 ($1005.00) dollars. In making his return, the deputy stated that the purchase price had been credited under order of court against the judgment and claim which the Lochte Company had against the Blouin Company. On December 27, 1924, L. C. Yial, the sheriff of St. Charles parish, filed a motion setting forth that the judgment had been adjudicated for cash, and that the L. A. Blouin Co., Ltd., had failed to comply with its bid by payment of said sum in cash as required, and praying the court to declare the sale to Blouin null and void and to order the property readvertised for sale under the writ issued in behalf of Milliken & Farwell still held by him. The judge ordered the Blouin Company to show cause why this motion should not be granted on January 9, 1925. On January 3, 1925, Milliken & Farwell filed a similar motion, asking that the return on the writ be set aside as null and void and the sale thereunder vacated, the property readvertised and sold under their writ of fieri facias of July 10, 1924. On this motion the judge again ordered the Blouin Company to show cause on January 9. On this date the Blouin Company filed an answer to each motion in which they claimed priority of privilege on the property sold because they had made seizure at least fifteen days before Milliken & Farwell. Subsequently the court recognized and maintained the return of the deputy sheriff allowing the Blouin Company, as adjudicatee, to take credit on the claim of the Lochte Company (purchased by the Blouin Company) against the Taft Company, instead of paying the adjudicated price ($1005.00), and dismissed both rules. The court dismissed the rule of the sheriff but no appeal was taken. From judgment against them Milliken & Farwell prosecute the present appeal. One of the grounds urged by Perkins for his preliminary injunction was that no preliminary default had ever been taken in the Lochte case and, as the “whole record” in that case was offered in evidence by the attorney of Blouin & Company to disprove that and the other charges, it is presumed that the record contains the entire proceedings of the court. This record áhows that the Lochte. suit was filed on March 28, 1921, and that the [153] corporation was served on March 29, 1921; that a judgment by default for full amount was rendered and signed on May 1, 1924. Although this judgment orders that “the preliminary default entered herein be confirmed”, a close examination of the “whole record in the Lochte case”, which has been brought up in this record, fails to show that any motion for preliminary default was ever made or any preliminary default ever granted as required by Articles 311 and 544 of Code of Practice. In the case of Adler, Goldman & Siegel vs. Wolff, 36 La. Ann. 169, Justice Bermudez on application for rehearing uses the following language: “The statements in the briefs for a rehearing that the motion for a default was made and granted is not verified by the record. Where a motion is made for a default, it should be noted on the minutes of the court. It is true that there is found in the note of evidence mention of a verbal aplication for a default, but this is irregular and void. The law authorized the plaintiff, if the defendant do not appear, after the delay allowed, to take a judgment by default, which can be obtained by moving for it in court. It suffices that such judgment appear by a statement on the records of the court that the defendant has failed to appear. The law requires that all judgments, whether interlocutory, final or definitive, shall be correctly entered on the records, that is: the minutes of the court. The same rule must be observed in relation to all orders or mandates given by the court, as well as to all motions made by the parties to the suit. C. P. 310, 311, 533, 534, 538, 544; Caldwell vs. Glenn, 6 Rob. 9; Poultney’s Heirs vs. Cecil’s Executor, 8 N. S. 339; Begley vs. Morgan, 15 La. 164. “The case cannot be considered at issue in the absence of a judgment by default regularly entered, or of an appearance by the defendant. The joining of issue is in fact the foundation of the suit, as citation is that of the action. C. P. 360, 359.” In this holding he was ratifying and confirming the following decisions: Washington vs. Hackett, 19 La. Ann. 146; Riggin vs. Bank, 19 La. Ann. 373; Braunsdorff vs. Fay & Marston, 18 La. Ann. 187; Huntington vs. Bank, 18 La. Ann. 350; Taylor vs. Littell, 21 La. Ann. 665; Brown vs. Brown, 21 La. Ann. 461; Knight vs. Knight, 12 La. Ann. 60. As the record fails to show the motion and entry of the preliminary default, the case was never at issue and no valid judgment was ever rendered, and consequently the pretended seizure was illegal and invalid. The Blouin Company contends that the validity of the Lochte judgment was not properly before the court for three reasons: (1) Because that point was not specifically raised by Milliken & Farwell in their motion to set aside the sale. (2) Because the preliminary injunction was never tried on the merits. (3) Because injunction was abandoned by Perkins, when he subsequently attempted, on October 2, 1924, to collect his fee from the surety on the sequestration bond in the case of Taft & Co. vs. L. A. Blouin Company. The first reason does not seem sound because Milliken & Farwell in their motion to set aside the sale allege that the seizure and sale had been enjoined amongst other grounds for the reason that the Lochte Company had no interest in said judgment or in the seizure because the judge had on December 17, 1924, signed an order dismissing the suit. (Such order had a retroactive effect to June 21, 1924, the date of seizure.) Furthermore, the attorney for Blouin & Company had raised the issue of the validity of his seizure in his intervention [154] and third opposition in this case filed on July 25, 1924, and also in his answer to the two rules. To sustain the allegations of his intervention and of his answers he introduced in evidence “the whole record in the Lochte case”. When that record is used against him as a part of the proof of the crucial issue raised by him, it is entirely too late after judgment to urge that the whole record must not be considered. The “whole record” must be considered, the favorable as well as the unfavorable parts, and he must stand or fall thereby. The fact that the Perkins preliminary injunction has never been tried on the merits tends to support the position of plaintiff in rule, for if it had no merit presumably his opponent would have caused it to be dissolved. The attempt by Perkins on October 2, 1924, to collect his attorney’s fee from surety on sequestration bond in the other case does not necessarily constitute an abandonment of his injunction ¡proceeding in this case, but even if it did, Blouin & Co. could not profit thereby, because in their petition of intervention they had challenged the rights of Milliken & Farwell, not those of Perkins, and the issue between them was thereby made entirely independent of any claim of Perkins. Although the various other grounds urged against the validity of the judginent and the seizure in the injunction proceedings are properly before this court, we do not find it necessary to pass on them’, as the failure of the record to show motion for and entry of preliminary default invalidates the judgment and the seizure. For the above reasons the judgment is reversed, and it is now ordered, adjudged and decreed that the sale made by Layoux Gassen, deputy sheriff of St. Charles parish, under a writ of fieri facias issued in this case on July 10, 1924, be vacated and annulled and the return on said writ be cancelled. It is now ordered, adjudged and decreed that the property be readvertised and sold under the writ of fieri facias issued on July 10, 1924.