Bank of Baldwin v. Broussard

MOUTO'N, J. This suit was instituted by plaintiff against John R. Broussard on a promissory rent note for $367.50, payable October 1, 1927, with 8 per cent, interest from maturity, and 10 per cent additional for attorney’s fees. The suit was accompanied by a writ of attachment issued against defendant. Garnishment process was also issued with the writ against Philip A. Conrad of Iberia parish. In answer to the interrogatories propounded to him in the garnishment proceedings, Conrad stated that he had milled for John R. Broussard 169 sacks of rice at his mill in New Iberia, which he held subject to an order of delivery in favor of R. C. Banta of Jeanerette, given to him by John R. Broussard, dated November 2, 1927. After obtaining the issuance of garnishment process against Conrad in his original demand for a writ of attachment, plaintiff, in a supplemental petition, made R. C. Banta a garnishee, alleging he had reasons to believe that he was in debt to John R. Broussard, or had property or effects in his possession belonging to Broussard. In answer to the interrogatories addressed to him, Banta admitted he haR in his possession a Deering McCormick tractor, a disk, and one harrow belonging to Broussard, and answered “no” as to any other property. Thereupon plaintiff upon proper allegations obtained a rule on Broussard, Banta and Conrad ordering them to show cause why the order for the delivery of the rice to Banta by Broussard should not be declared a simulation, or, in the alternative, annulled as a fraudulent preference in favor of Banta over the other creditor of Broussard, and, if not a simulation or fraudulent preference, why it should not be decreed that the rice had been seized before its delivery by Broussard to Banta. The rule was made absolute by decreeing that the transfer of the rice by Broussard to Banta was a fraudulent preference, and ordering Conrad to deliver it to the sheriff under the seizure. Broussard made no defense, and judgment by default was rendered against him on the note, perpetuating the attachment. The only appearance made by Conrad was in answer to the interrogatories in which he declared he was holding the rice for Banta under the order of Broussard. Banta is the only appellant. The first contention of counsel for appellant is that Banta and Conrad, the other garnishee, had no interest in common and could not be joined" as defendants. It is evident from the answer of Conrad to the interrogatories that he was holding the property for Banta, and that ■'e had no interest whatsoever in the case. The only parties in interest were Broussard and Banta, who could well be joined under the charges of simulation, fraudulent preference, and want of delivery of the rice prior to the seizure, which were leveled against them in the petition filed by plaintiff for the issuance of the rule, [406] In their brief, counsel' for defendant, in referring to plaintiff, say: "In reality he instituted a revocatory action by supplemental petition against a garnishee, and is attempting to try by supplemental petition as a summing process against two defendants, who were not made defendants in the original .suit.” This means, if we appreciate the contention correctly, that plaintiff could not attack the transfer of the rice by rule upon the allegations of his petition above referred to, but, for the relief sought, should have proceeded by a revocatory or direct action. Plaintiff, according to that contention, had no right to attack this transfer collaterally under a proceeding of that character. Counsel, in support of this contention, refer to Act 46 of 1886, wherein it is provided that in all cases where personal property is seized and is claimed by a third opponent, the seizing creditor may be allowed in his answer to the third opposition to allege and prove his title fraudulent, and the court shall try and decide the issue thus made. Although Conrad, the other garnishee, had declared that he was holding the rice for Banta, the purpose of Banta in withholding from making any claim to the property by third opposition was' evidently to force plaintiff to institute suit against him by a separate and independent revocatory action. Banta would simply remain quiescent until plaintiff had thus resorted to a new suit for the decision of an issue fully presented herein in the proceeding by rule, and wherein the matter can be equitably, legally and fairly settled. The law abhors such circuity of action, and does not countenance such useless and vain proceedings. The question here presented was met in the case of First National Bank vs. Lagrone (La. Sup.) 117 So. 741. In that case, under writs of fieri facias, Mrs. Edenborn was made a garnishee. The banks therein undertook to levy upon 250 shares of stock in the Colfax Lumber & Creosoting Company. In answering the interrogatories, Mrs. Edenborn, garnishee, admitted that she held 50 shares of stock which had been issued' in the name of Mrs. Lagrone, wife of the judgment debt- or, Lagrone, and that she- had in her possession 200 shares in the name of J. M. Dowden. The banks, plaintiffs in the case, obtained a rule upon Mrs. Eden-born, garnishee, for her to show cause why the 250 shares of stock should no£ be surrendered to the sheriff, to be sold to satisfy the banks’ judgments. Here the relief asked was that the order for the delivery of the rice to Banta, garnishee, be declared null, or annulled, and that it be delivered subject to seizure under the attachment. In this respect the demands in the two cases, if not practically identical, are at least quite similar. In their petition in the rule, it was also alleged that the stock standing in the name of Mrs. Lagrone had been transferred by her husband without consideration by a fraudulent dation en paiement, which was null, not only because it was made without consideration, but also because the stock had never been delivered to Mrs. Lagrone—in substance and character, the same averments which appear in this case in the rule issued against the garnishees. Mrs. Lagrone, after excepting to the jurisdiction of the court, which is not a feautre of this case, pleaded that the banks’ proceeding was a collateral attack on the dation en paiement transferring the stock to her, and that the banks had no cause or right of action, which is precisely the attitude of defendant Banta in the present action. In summing up the contentions, Chief [407] Justice O’Niell, the organ of the court, said: “The purpose of citing Mrs. Lagrone was not to obtain a personal judgment against her. The purpose was merely to determine the ownership of the stock, which was seized in the possession, virtually of the insolvent debtor. For that purpose it was not necessary for the banks to bring a revocatory action at the domicile of Mrs. Lagrone.” Here the object of the rule was merely to have the ownership of the rice determined, which had been placed in the hands of Conrad, garnishee, under an order of delivery alleged to have been given to cover up either a pure simulation, a fraudulent preference, or a transfer lacking the essential requisite of delivery before seizure. We are of the opinion that as the defendant Broussard, Banta and 'Conrad, garnishees, were all brought into court under the rule, that the issues therein presented . were legitimately before the court, and could be passed upon without the useless formality of compelling plaintiff to resort to a separate proceeding under the revocatory action, which was, prior to the enactment of Act 46 of 1886, an essential requirement in suits of this character.