E. Marqueze & Co. v. LeBlanc

On Application for Behearing. The opinion of the court was delivered by Egan, J. The interest and importance in practice of the questions raised in this case, which have been again pressed with great earnestness upon the attention of the court in the application for rehearing, have induced us to give it an unusually careful consideration. It is urged that the garnishee domiciled in New Orleans can not be called to answer before the district court of Lafourche parish, the domicile of the defendant, LeBlanc, from which court the process of garnishment issued in obedience to the prayer of the original petition in the cause. It is also argued that this court has decided that a garnishee under process issued in execution of judgment must be cited to appear and answer before the court of his own domicile, which alone has jurisdiction to hear and adjudge the question of his liability, and that there is no reason for a distinction between proceedings in garnishment before and after judgment. Were this suit directly and mainly against the garnishees as principal defendants, the question as to exception of domicile would not bear discussion, since the- act of 1861 and the decisions under it and the general provisions of the Code of Practice in regard to jurisdiction ratione persones .within the exceptions to which, enumerated in the Code, we are told that this case does not come. In support of this view we are referred to the case of Delacroix vs. Hart, Barrow, garnishee, 24 An. 141, in which Chief Justice Ludeling, the organ of the court, said: “ The gar *203 nishment process is certainly a suit; there must be a petition and citation to get the garnishee before the court, and then follows a judgment in accordance with the evidence.” This case was one of garnishment under fieri facias after, judgment had terminated the suit between the original parties. In other words, like the case of. Alter vs. Picket1;, reported in the same volume, and the third Annual case referred to, it was sifhply a matter of execution of judgment already obtained, in regard to which the original defendant was entitled to nothing but notice of seizure, which he could no more contest than ho could that of tangible property, and where neither petition nor citation were required to bo served on the original defendant. In the case of Elder vs. Rogers, 11 An. 606, the court held, Mr. Justice Spofford being the organ, that the judgment debtor was not a necessary party, and refused to dismiss the appeal on motion of the garnishees, for want of citation, to him. The universal practice in garnishment under fieri facias has, it is believed, been in accordance with this view, and it would seem to be clear that such is the law governing this as any other mode of executing judgments. Judgment being rendered, the contestaiio lites is over. You can no longer after judgment make the garnishee “ a party to the suit,” as expressly authorized by the Code of Practice (article 250) “ at any time before judgment;” all that can be done is to seize and condemn, in the hands of the garnishee, the debt due by him to the judgment debtor. This is done by fieri facias issued to and executed in his parish, where the debt, the thing seized, is found, and there is no reason or propriety in calling him before another jurisdiction. This would seem to furnish a very good reason for distinction between proceedings in garnishment before and after judgment. In the former case the original debtor is a necessary party, without judgment first againsi whom none can go against the garnishee; in the latter case the original debtor is not a necessary party to what Judge Ludeiing calls “ the suit.” between the plaintiff and the garnishee, which has been held, and we think correctly, to be governed as to the matter of jurisdiction ratione personae by. the general provisions as to domicile, “ cessante ratione cessa ipsa lex.” It seems to be conceded that the writ of attachment may lawfully issue from the court having jurisdiction ratione personas of tjie principal debtor; but it is said that the proceedings subsequent to seizure in the hands of the garnishee must be had before the court of his domicile, and, of course, must await judgment against the defendant. This is an admission that, the cause is the. same, as the attachment is but process in the cause. This is in direct contravention of article ninety-four of the Code of Practice, which provides that “ the same cause can not be brought before two separate courts, thoucfii they be possessed of concurrent jurisdiction, except by discontinuing the first suit brought before the answer is filed,”' *204 and that the judge before whom it is first brought shall sustain his jurisdiction, and the defendant may have the cause dismissed by the other court and recover costs. Again, in the proceeding by attachment and garnishment before judgment the principal defendant is a necessary party, who is entitled to contest and be heard at every stage of the cause, and, besides the great inconvenience and expense in practice of this course of proceeding, we are met at once by the same difficulty of jurisdiction as to the defendant which is here set up by the garnishees as to themselves and without any provision of law to warrant it; i. e., you must require the defendant to appear and contest before the court, not of his jurisdiction, but that of the garnishee. The difficulties in the way of this mode of proceeding are apparent. In Rochereau vs. Guidry, 24 An. 311, the court belo"^ held that it had no jurisdiction of the defendant, because his domicile was in another parish, but that it had jurisdiction of the thing attached, and would hold it subject to the order of the court having jurisdiction of the person of the defendant. The Supreme Court held “ that the court which issued the attachment was without jurisdiction to grant any order binding on the defendant, because his domicile was in another parish, and that the attachment, being merely a conservatory remedy, should have been issued by the court having jurisdiction of the case.” In Gay vs. Eaton & Barstow, 27 An. 166, the court says : “ A court which can not determine luhethcr or not a deht exists can not pass on the question of privilege ” to secure its payment. This mode of proceeding must bo discarded. Now, there are many cases in which persons other ’ than the plaintiff and defendant are parties to a suit “ only incidentally and subsidiarily.” C. P., article 101. Such are garnishees under attachment against a debtor who has a domicile in the State whore the law requires that suit against him shall be brought. The exceptions enumerated in article 163, Code of Practice, relate only to original or rather principal defendants,and to jurisdiction in the bringing of ordinary suits against them. The fact that garnishees are not among the exceptions enumerated in that article proves nothing. They come within other provisions of the law, and are treated of in a different section of the Code of Practice, under the head of “ attachment in the hands of third persons.” In Williams vs. Kimball, 8 N. S. 353, the court held that “an attachment, like all other conservatory acts, is not, when the defendant is personally cited, a mode of bringing suit, but a remedy or incident wnich may precede, accompany, or be subsequent to the action. In the language of the Godo, “ it may accompany a demand' or give effect to a suit which the plaintiff has brought or intends to bring.” In Favrot vs. Delle Piane, 4 An. 586, the 8 N. S. case is reviewed and *205 expressly re-affirmed, and the court says: “ Yiewed in the light of a conservatory measure incident to the main action, there seems no reason ' why the jurisdiction of the court for the purposes of attachment where the debtor is personally cited should bo confined within its territorial limits.” It has. often been adjudged in other classes .of cases, and the principle is universally recognized, that courts which have jurisdiction of a cause of the mam action have, ex necessitate, jurisdiction of all its incidents; so it was held under the old parish-judge system in regard to the power of the parish courts to adjudicate incidentally upon land titles. It is noticeable that all the provisions of the Code of Practice of Louisiana on the subject of attachment are under the head of “ attachment in the hands of third persons,” the very definition of attachment embraces that language. C. P. 239. The plain and positive provisions of the Code of Practice under that head would seem to settle the question of jurisdiction as to garnishees under attachment beyond dispute, and it would almost seem strange that doubt could ever have existed. Being-specific provisions on the subject of attachment, they must of course control more general provisions of the la*w. By article 246 if a creditor know or suspect that a third person has in his possession property of the defendant, or is indebted to him, “he may make such a person a party to the suit” by having him cited to declare on oath what property of the defendant lio has in his possession, or in what sum he is indebted to the defendant, and says “ the person thus made a party to the suit is termed the garnishee.” Article 250 reads: “A' garnishee may be made a party to the suit and be cited to answer interrogatories on facts and articles, either by praying to that effect in the original petition or by a supplemental petition filed at any stage of the suit previous to rendering the judgment.” Article 251 provides for'eitation to the person thus “ made party to the suit.” Article 252 provides, “if there be a garnishee made party to the suit, the clerk must déjfiver or send to the sheriff a copy of the petition and of the interrogatories annexed to it, if there be such, with a summons directed to such ^garnishee to answer the same within the delay given in ordinary suits.” What power or duty has the clerk of one court to summon a person before another, or what power or duty has the judge of one court to order or cause the issuance from his court of a summons to answer before another? How is the judge who orders the attachment to render proper or effective judgment, unless the garnishee and his answers are before him ? How can he pass upon any contests of claim or privilege which may arise in the cause, either by intention'or otherwise, unless the subject of contest is before him? and we have seen that no other court can (Gay vs. Eaton). Article 256 of the Code of Practice speaks of the garnishee as a “ party to the suit.” *206 Article 262 requires “ the garnishee who has been cited in a suit to put in his answer within the usual delay;” and by article 263 if the garnishee refuse or neglect to answer the interrogatories put to him within the delay of the law, judgment shall be rendered against him for the amount claimed, with interest and costs. O. P., article 248, authorizes the creditor, on proper affidavit, to have the garnishee arrested who is about to depart from the State without having filed his answer. The next article, 249, provides for his being' discharged from arrest either by giving security or by answering in the presence of the court the interrogatories propounded to him, “ and filing such answer in the office of the clerk of the court.” We thus see that the garnishee is directly made a party to the suit, and may be so made either by thq original petition or by a supplemental petition; that he is spoken of as “a party to the suit,” “in tolidem verbis,” in no less than five articles of the Code of Practice, and so treated of in several others; that he may be cited or summoned-to answer by a judge and clerk of a court, who, according to the garnishee in the case at bar, has no jurisdiction over him; that he may be arrested and judgment given condemning him in case of failure or refusal to answer; and yet the court which has all these powers, the court which alone has jurisdiction of the principal defendant, of the main action, has no jurisdiction over one expressly near a party io the suit; a judge may have jurisdiction and sole jurisdiction of a suit, and yet no jurisdiction of a party to it! If no judgment can be rendered by him against the garnishee, how will ho cease to be a party? You may make parries to a suit for no object or purpose, for, according- to the argument, the court in which they are made parties can render no judgment affecting them. Is not this a reductio ad absurdum which demonstrates the unsoundness of the argument against jurisdiction ? I was not present, and took no part in the decree in this case, but now express my concurrence in it. After a careful examination of the arguments and authorities cited in the application for rehearing, and for the reasons given herein and in the opinions of the majority of the court, the rehearing asked for is re-fused.