Stevenson v. Exchange Natl. Bank

WEBB, J. The Exchange National Bank,. on the 17th day of July, 1922, proceeded against the Palace Car Company via ordinaria to foreclose a mortgage on an automobile, in which proceeding a writ of sequestration was isssued and the automobile seized in the possession of W. A. Stevenson, and on July 24, 1922, judgment was rendered in favor of the Exchange National Bank on the answer of the Palace Car Company for the amount claimed with recognition of the mortgage, maintaining the sequestration and ordering the property seized and sold, and the proceeds applied to the payment of the judgment, under which a writ of seizure and sale was issued. W. A. Stevenson filed with the sheriff an affidavit claiming ownership of the automobile, and on August 4,' 1922, the Exchange National Bank gave the sheriff an indemnity bond in the sum of twenty-nine hundred and twenty-eight dollars, and on the 19th of August, 1922, W. A. Stevenson filed an intervention and opposition claiming the ownership of the automobile, which was sold by the sheriff on that date under the writ above referred to, for the sum of twelve hundred and fifty dollars, the proceeds being delivered to the Exchange National Bank. The opposition of W. A. Stevenson was subsequently tried, and on the 14th of April, 1923, judgment was rendered decreeing opponent the owner of the automobile, and rejecting the demands of the Exchange National Bank for recognition of its asserted mortgage thereon, and ordering the automobile delivered to opponent, from which judgment the sheriff, the Exchange National Bank, and the Palace Car Company appealed suspensively, giving an appeal bond in the sum of fifteen hundred dollars, dated April 17, 1923, with E. C. Payne as surety, and the judgment being affirmed on appeal, opponent caused to be issued a writ of possession on which demand was made against the Exchange National Bank, without result, and return was made accordingly. The present suit by W. A. Stevenson, was filed on April 25, 1925, against the Exchange National Bank and E. C. Payne for damages resulting from the seizure and sale of the automobile, consisting of attorney’s fees incurred on the trial of the opposition and the alleged value of the automobile, the action being apparently based upon the general law and upon the indemnity bond, and, in the alternative, on the appeal bond, for the value of the car, and, in a second alternative, to recover the proceeds of the sale of the automobile paid over by the sheriff to the Exchange National Bank, as under a quasi contract. The defendants filed exceptions of no cause of action and pleas of prescription of one year, which being overruled, they filed an answer in substance pleading a general denial, and the cause was tried on a statement of fact which embodied, in substance, the facts stated above, and further showed that the automobile had cost plaintiff fourteen hundred and sixty-four dollars and that counsel representing W. A. Stevenson in the opposition was present when the sale of the automobile was made by the sheriff, but that he was represent [181] ing someone else, and that W. A. Stevenson had .obligated himself to deliver to third persons the amount recovered above one hundred dollars, on which latter facts the defendants filed a plea of estoppel, and the cause being submitted, judgment was rendered against defendants in solido for the sum of twelve hundred and fifty dollars, with interest, from which defendants have appealed. While the plaintiff apparently bases his right to recover upon several causes of action, the only one which is pressed is the first or primary cause, and as plaintiff does not cite any authority in support of the alternative demands and as we have been unable to find any authority which would, under the admitted facts, warrant judgment on the alternative demands, we consider the alternative demands as waived and shall confine our opinion to the primary demand or cause of action, which appears to have been the basis of the judgment. The evidence, as stated, shows that the seizure and sale of the automobile was made under a judgment recognizing a mortgage thereon and ordering it to be seized and sold, and the sheriff acting under a writ issued thereon did not incur any liability and did not have the right to demand of the plaintiff in execution an indemnity bond. In Foucher vs. Kenner, 35 La. Ann. 149, it was held: “A sheriff or United States marshal cannot be made responsible, in damages, for executing a judgment, recognizing a privilege on property provisionally seized in the suit, by the seizure and sale of the property. “Where, in such a case, upon the demand of a third person claiming ownership of the property, an indemnity bond has been furnished, conditioned for the payment of such damages as might be recovered against the marshal in consequence of such seizure, the surety on such bond cannot be held for any damage other than those for which the marshal might have been liable, and, inasmuch as the marshal could be responsible for none, the action must fail.” In the cited case, the indemnity bond had been given by the plaintiff in execution, and the suit was against him by the person to whom the bond had been assigned, and we are of the opinion that the ruling in that case is applicable to the present, and the plaintiff here did not ' acquire any rights under the bond as against either the Exchange National Bank, principal, or E. C. Payne, surety on the indemnity bond. The sale of the automobile was made on August 19, 1922, and more than one year had elapsed from that date to the time the present suit was filed, and if the conversion was of the date of the sale, the action for damages resulting therefrom was prescribed at the time the present action was filed. (Edwards vs. Turner, 6 Rob. 382; Anty vs. Adle, 9 La. Ann. 490; DeLizardi vs. N. O., etc., Banking Co., 25 La. Ann. 416; Liles vs. Barnhart, 152 La. 419, 93 So. 490; Liles vs. Producers Oil Co., 155 La. 385, 99 So. 339); unless the course of prescription was interrupted or suspended by the suit or opposition to the sale, under which the opponent asserted title to the property. In Edwards vs. Turner, supra, where it was contended that prescription did not run as to the claim for damages resulting from the seizure during the pendency of an action involving the title as between the plaintiff in execution and, the owner of the property seized, it was said: “Article 3537 (3502) C. C., which immediately follows that creating the prescription of one year in cases of offences and quasi-offences, provides, that such prescrip [182] tion shall run from the time when the damage was sustained. * * * Notwithstanding the pendency of his intervention, the plaintiff in this suit could have brought his action in damages within the time required by law, and was not obliged to await the final decision of this court on his right to the property seized. * * * Under the positive provision of the Code, which declares that prescription must run from the time the injury was sustained, we do not -feel authorized to fix any other terminus a quo.” And the same ruling was made in De-Lizardi vs. N. 0., etc., Banking Co., supra; and while in those cases the claim was for damages resulting from the seizure and not for the conversion of the property, we think the same rule is applicable in either, as in Liles vs. Barnhart, supra, the Court said: “That one cannot sue until his cause of action accrues, is scarcely debatable. However, prescription begins to run from the moment it does accrue, and unless suit be brought within the prescriptive period, the action is barred, unless for some legal reason prescription should be interrupted or suspended. Prescription, in such cases, is interrupted by petition and citation served on the debtor or by his acknowledgment of the debt. The petitory action, instituted by plaintiffs, did not interrupt prescription on the demand herein, for the value of the oil and gas, for the reason that the petition, in that suit, contained no such demand, but onljr a mere reservation of the right to sue therefor, which is insufficient.” We are therefore of the opinion that the plaintiff did not acquire any rights under the indemnity bond, and the claim for damages was prescribed; and his demands should have been rejected. It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that it be now ordered, adjudged and decreed that plaintiff’s demands be rejected at his cost.