McGovern v. United Railway Men's Oil Ass'n

In the suit, first named in the title, Edwin T. McGovern sued the United Railway Men’s Oil Association for $2,216 and for interest thereon. Of this sum he alleges that $1,520 are due him as wages for services rendered and labor performed for defendant, as field manager, master mechanic, and laborer, and that the balance is due him on a promissory note executed by defendant. He alleges that he has a privilege on a drilling outfit, belonging to defendant, to secure the payment of said indebtedness, and that he fears that defendant will part with or remove, during the pendency of the suit, from the jurisdiction of the court, the property on which the privilege exists, and therefore alleges that he is entitled, to a writ of sequestration to protect his rights. Plaintiff also alleges that defendant resides out of the state of Louisiana, and therefore that 'a curator ad hoc should be appointed to represent it, upon whom service may be made, and that he is entitled to the issuance of a writ of attachment. A curator ad hoc was appointed to represent defendant, and the writs of sequestration and attachment were ordered to issue. Service of the citation and the petition was made on the curator ad hoc and by posting on the courthouse dooi\ Defendant, through its curator ad hoc, excepted to the manner of making service. The exception -was overruled. Defendant then, through its curator ad hoc, after reserving the benefits of its exception, filed its answer. The case was tried and judgment was rendered for plaintiff on October 16, 1922, and was signed on December 23 of that year. Defendant has appealed from this judgment.

On June 30, 1922, about two months and a half after McGovern had filed his suit, the second suit named in the title of this appeal was filed. In it D. W. B. .Kurtz, Jr., sued the defen'dant on a promissory note for $3,-000, alleged to have been made by defendant, and for the recognition and enforcement of a chattel mortgage, alleged to have been executed by defendant in favor of Kurtz on certain property belonging to defendant, which property includes that seized by McGovern under his writ of attachment. On the same day that this suit was instituted an answer was filed, purporting to have been signed by defendant, admitting all of the allegations of Kurtz’s petition, confessing judgment in favor of Kurtz for the amount sued for, and also confessing judgment in his favor, recognizing the chattel mortgage executed. On the same day that the suit and the answer were filed, judgment was rendered in favor of plaintiff in accordance with the confession of judgment made.

Shortly after Kurtz obtained judgment, *969and "before McGovern’s suit bad proceeded to judgment, Kurtz caused execution to issue from tbe judgment obtained by bim, and seized tbe property on wbicb his mortgage bad been recognized. As tbe property seized included that on wbicb McGovern was claiming a privilege as field manager, master mechanic, and laborer in bis suit against tbe United Railway Men’s Oil Association, be filed a third opposition in tbe Kurtz suit, in wbicb he sets forth tbe indebtedness of $2,-116, which be claims is due him by tbe United Railway Men’s Oil Association, tbe existence of tbe privilege mentioned above; bis right, by reason of that privilege, to be paid out of the proceeds of tbe sale about to be made under tbe writ issued in tbe Kurtz Case, in preference to Kurtz, himself, and then alleges that tbe mortgage granted Kurtz, which is tbe mortgage recognized by tbe latter’s judgment, is illegal, and-that tbe indebtedness sought to be secured by the same is fictitious. He prays that tbe sheriff be ordered to separately appraise and sell tbe property on wbicb be claims a privilege, and that be be paid out of tbe proceeds of tbe sale in preference to all other creditors of the United Railway Men’s Oil Association. In accordance with tbe prayer of bis petition tbe court granted bim an order, directing tbe sheriff to separately appraise and sell tbe property on wbicb McGovern claimed a privilege, and to bold the proceeds of tbe sale until the further orders of court.

At tbe first offering of the property made, under the writ issued at tbe instance o£ Kurtz, the property failed to sell. Tbe sheriff then readvertised it for sale on twelve months’ time, tbe purchaser to furnish a twelve months’ bond. At the second offering Kurtz bid for tbe property, but tbe sheriff refused to adjudicate it to bim for tbe reason that Kurtz declined to give a twelve months’ bond, and instead offered the sheriff a receipt for tbe amount of bis bid, which receipt showed that tbe amount thereof was to be credited on tbe judgment wbicb was being executed by Kurtz. After tbe sheriff accepted service on. a rule, tendered him for that purpose by Kurtz, the contents of which will be hereafter stated, be proceeded with tbe crying of the property, and adjudicated it to Jules Dupuy for $1,500.

When tbe sheriff refused to accept Kurtz’s bid, Kurtz filed tbe rule above mentioned. Tbe rule sets out that Kurtz caused execution to issue from bis judgment; that under this execution the sheriff seized certain property and advertised it for sale; that at said sale Kurtz was tbe last and highest bidder therefor; that, notwithstanding tbe clerk’s certificate showed the existence of Kurtz’s mortgage on the property seized, tbe sheriff refused to accept bis bid, for tbe reason that McGovern bad filed a third opposition claiming the right to be paid in preference to Kurtz, and because tbe latter, notwithstanding sa'id third opposition, refused to furnish a twelve months’ bond, but instead tendered tbe sheriff the receipt heretofore mentioned, and requested tbe sheriff to credit tbe amount on bis (Kurtz’s) judgment. Tbe prayer of tbe rule is that the sheriff be ordered to show cause why be should not execute proper title to the property to Kurtz, and also is that McGovern be ordered to bow cause why tbe third opposition filed by tbe latter should not be dismissed.

The sheriff filed an answer, putting this rule at issue. He avers substantially that be was not called upon to accept Kurtz’s bid for tbe reason that Kurtz refused to comply with tbe conditions of tbe sale, and that tbe only legal bid made was tbe one made by Dupuy, who complied with the conditions of tbe sale. He prays that the rule be dismissed.

McGovern also filed an answer to tbe rule. He denies, among other things, tbe legality *971of Kurtz’s judgment, and avers that it was obtained by fraud, without citation or issue joined, and without legal proceedings had. He also denies the legality of Kurtz’s mortgage, and. prays that the rule be dismissed.

The foregoing rule and the third opposition of McGovern were consolidated for the purpose of trial. The trial court heard the evidence and rendered judgment, annulling the judgment rendered in favor of Kurtz; dismissing the rule filed by him, and dismissing the third opposition of McGovern.

The sheriff alone has appealed from this judgment. McGovern alone has filed an answer to the appeal. The United Railway Men’s Oil Association obtained an order of appeal, hut did not perfect it by filing bond, and hence is only an appellee.

Opinion.

As seen from the foregoing statement, there are two appeals before us — one by the United Railway Men’s Oil Association from the judgment against it, rendered in favor of McGovern, and the other by the sheriff from the judgment on the rule and on the third opposition of McGovern.

We shall consider the appeal by the United Railway Men’s Association first. In our opinion the exception to the citation filed by defendant, through its curator ad hoc, should have been sustained. The law requires all foreign corporations doing business in this state to appoint an agent on whom process may be served, and the presumption is that they comply with the law in this respect. In this instance it appears that the United Railway Men’s Association appointed Kurtz as its agent for that purpose, and filed the appointment with the Secretary of State. Hence service should have been made on Kurtz as the agent of that association, and, if Kurtz could not be found, then upon any employee or employed agent of the corporation over 18 years of age in any office maintained by the association in this state, and, | in the event no such agent or employee could be found, then, upon the order of the judge, or, in his absence, upon the order of the clerk of court, on the Secretary 'of State. Section 1 of Act 179 of 1918, p. 334. As the only service made was by posting and on a curator ad hoc, the exception should have been sustained. For these reasons the judgment rendered in that suit will be annulled.

It has been suggested, with respect to the second appeal, that we have no jurisdiction for the reason that the fund to be distributed does not exceed $2,000. If the only matter in dispute was the distribution of the fund created by the sale, the position taken would be correct. However, the appeal involves more than the distribution of a fund. It also involves a demand for the transfer of title to property, which property, we are satisfied from the record, is worth more than $2,000, notwithstanding that it brought less than that amount at the sale. Because of the latter demand, we think we have jurisdiction as to the remainder of the appeal.

While we conclude that we are vested with jurisdiction as relates to the second appeal, yet the question - forces itself whether any one has appealed who has an interest in doing so. It will be recalled that the onljj; appeal taken from the judgment rendered on the rule and on the third opposition, filed by McGovern, was the one taken by the sheriff. The sheriff was ruled into court merely to show cause why he should not be required to accept the bid made by Kurtz and to deliver the property to him as the lawful purchaser. The sheriff’s prayer in his an-' swer to this rule was that the rule be dismissed, and it was dismissed. His interest would seem to have ended there, unless some one at interest had appealed from the judgment dimissing the rule, in which event he would have had the right to have insisted that the judgment dismissing the rule be affirmed. It is true that the. trial court in *973dismissing the rule also annulled the judgment under which the sale was made. This, however, did not give the sheriff.a right 'to appeal and ask that the judgment annulled be reinstated. It was no concern of his whether that judgment was annulled or not. To sanction his appeal, in this instance, would be in effect to permit him to appeal for the purpose of championing the rights of others. This, we cannot do. Since the appeal of the sheriff must be dismissed, the answer of McGovern, filed in response to that appeal, falls with it.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment rendered in the. case of McGovern v. The United Railway Men’s Oil Association be annulled and set aside, that said exception to the citation be sustained, and said case dismissed, and it is further ordered and decreed that the appeal taken from the judgment rendered on said rule and on the third opposition of McGovern be dismissed, the costs of the Ipwer court in the first-named case to be borne by McGovern, and the costs of appeal in the second-named case to be borne equally by the litigants herein.

On Rehearing.

In the original opinion in this case handed down by Justice OYERTON, this court avoided the judgment of the district court and dismissed the suit. It also' dismissed the appeal from the judgment rendered on the rule against the sheriff.

A rehearing was granted, but it was restricted to the question whether the case should be dismissed or remanded for citation and notice of seizure.

The proceeding was in rem; defendants’ property was seized, and citation was served on a curator ad hoe. The defendant was proceeded against as a nonresident, without an-agent in- the state. The record shows that defendant was not cited, and that its property was improperly seized. We say not cited advisedly, because, if it appeared that there was a mere defect in the citation or in the service thereof, the case should be remanded in order that the defect might be corrected; but in this case there was no citation of defendant at all. Defendant is a foreign corporation, doing business in this state. It had availed itself of all of the advantages of the laws of the state, it had duly appointed an agent for the purpose of service of process, and, at the time this suit was instituted, it was maintaining such agent in the state and in the jurisdiction in which the suit was brought. Proceeding against such a corporation in rem, seizing its property, and serving citation upon a curator ad hoc, is not a defective citation, but it is no citation of the corporation at all, and, on a proper showing of that fact, the court has -no alternative, but must dismiss the suit. Act 179 of 1918; Burgin Bros. & McCane v. Barker Baking Co., 152 La. 1075, 95 So. 227; National Park Bank v. Concordia Land & Timber Co., 154 La. 31, 97 So. 272.

For these reasons the original decree of this court is correct, and it is therefore reinstated and made the final judgment of the court.