Katz v. Sorsby

On Motion to Dismiss.

The opinion of the Court was delivered by

The plaintiff, appellee, moves to dismiss this appeal on the following grounds:

1. “That all proper and necessary parties have not been made parties to this appeal, the defendant not having been made a party hereto.”

2. “That no appeal lies from such a judgment as that attempted to be appealed from, said judgment being an interlocutory one, which does not work irreparable injury.”

3. “ That there is no note of evidence, bill of exception, or assignment of errors of record, and, therefore, the appeal must be dismissed.”

The first ground urged is the only one which calls for our consideration. The second ground is disposed of by the authorities in 6 La. 435; 2 R. 342; 12 L. 149; 11 R. 160; 12 A. 455; 7 R. 232, in which it has been held and reaffirmed, that to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury he absolutely irreparable. It suffices that it may become irreparable by the final judgment or action of the Supreme Court on that judgment.

The objection that there is no note of evidence, bill of exceptions or assignment of errors of record, does not justify the dismissal of the appeal herein sought.

*590The certificate of the clerk is full and complete, and there is no suggestion of diminution. The record would enable the Supreme Court to decide on the merits. 15 A. 420; 18 A. 261; 5 N. S. 341; 14 L. 368.

The first ground, however, is serious, and the failure to make the defendant a party to the appeal, in our opinion, is fatal.

The rule that all parties to a judgment must be made parties to the appeal, is only deviated from in case of merely nominal parties without interest. 3 A. 317,

It has been held, in 3 A. 623, that, where plaiutiff in execution obtains judgment against a garnishee, from the judgment against whom defendant appeals, the garnishee must be made a party to the appeal, or it will be dismissed. Being interested in the judgment, it can neither be affirmed nor reversed without giving him an opportunity of being heard. So in an attachment suit begun by garnishment, plaintiff, in appealing from a judgment of dismissal, must make the garnishees parties. See also, 14 A. 219. We think the rule thus laid down, may, with equal force, be applied to the present case, 12 A. 801.

In this instance the appeal was granted on petition, and there was a prayer for the citation only of the plaintiff. No citation issued to the defendant, nor has he made any appearance in this appeal.

That he is interested in the judgment seems to us apparent and incontrovertible. In the original attachment suit a judgment was obtained against him serving as the basis or measure of the judgment against the garnishee, and whether that obtained against the latter is final or interlocutory,, and working irreparable injury, is immaterial, as he must have the “ opportunity of being heard,” in a matter in whichlie is surely interested to the extent of the funds belonging to him in the hands of the garnishee, which are sought to be applied to the extinguishment of the debt claimed in the suit.

See Louque’s Digest, title appeal, Y. p. 43, (b. I, no. I, and authorities there cited). Also, 16 A. 40.

The-motion to dismiss must prevail, and it-is, therefore, ordered that the appeal herein be dismissed at the costs of appellant.

On the Merits.

The question to be decided in this case relates to the liability of a garnishee, answering interrogatories, under an attachment process.

The plaintiffs seek to hold the London, Liverpool & Globe Insurance Company responsible for the judgment rendered against the defendant, on the face of the answer made by it,- and which is to the effect, that: “ the defendant was insured in said Company for $5,000, on stock of goods; that he was burnt out, but as loss has not been adjusted, Respondent is unable to say what will be found due him. Defendants’ interest in aforesaid policy was seized,” etc.

The rule taken was filed more than two months after the answers of the garnishee had been part of record in the attachment proceedings.

It does not appear that any issue was joined on the rule, or that any evidence was introduced on the trial. There was judgment ordering the garnishee to liquidate the amount of the loss and deposit the same with the sheriff, within ten days, or in default, that it be condemned to pay the amount of plaintiffs’ judgment.

From this judgment the garnishee appealed.

It is clear that by its answer, the garnishee did not admit owing the defendant any specific sum of money. Had it done so, and had the plaintiffs been satisfied with the answer, their remedy would have simply been to obtain an order directing the payment of the money into the hands of the sheriff, who would have receipted therefor.

The garnishee merely admitted that the defendant might have a claim against it, but that it had not been adjusted, as yet.

As the attaching plaintiff can acquire no other or greater rights against the garnishee than the defendant, it follows that, though the garnishee be indebted to the defendant, yet if there be anything to be *592done, as a condition precedent, to his recovering his debt in an action against the garnishee, the plaintiff cannot obtain judgment, against the garnishee without performing the condition. It is not enough to charge the garnishee that he owes something to the defendant. The amount owing must be shown. Drake on Attachments, Sec. 553. '

The record does not establish that the judgment creditor lias proved any of the facts which it would have been incumbent on the insured to have alleged and proved, previous to a recovery. There is not even an allegation of liability, for any. specific amount, on the part of the Company to the insured. Even if the answer of the garnishee, apparently adopted by the rule, could be considered as part of it, the amount of the loss sustained, and therefore due to the insured, not having been admitted by the Company, no order to liquidate, no money judgment could have been rendered against it, as was done. It may still well be, that in a proper proceeding to hold it liable under the policy, the Company may have some valid, exonerating defense to set up, which it was not hound to interpose on the rule in this ease.

In the absence of any issue joined and of evidence introduced, the defense must he considered as having been one of no cause of action. This view of the case dispenses us from determining whether or not the rule was seasonably taken. Act 27, E. S. 1877; 5 R. 447; 16 A. 253; 31 A. 548.

Whatever may be the rights of the judgment creditors under the garnishment proceeding, the same remain unimpaired, in the condition in which they stood at the date of the seizure.

It is, therefore, ordered and decreed, that the judgment appealed from he reversed, and that the rule therein rendered be dismissed, with costs, in both Courts.

On Rehearing.

We are convinced of error in our former decree hereiu, in holding that the defendant, Sorsby, was a necessary party to this-appeal.

It seems well settled, that in proceedings by garnishment in execution of judgments, the judgment debtor is not a necessary party to an appeal from a judgment between the creditor and garnishee. Elder vs. Rogers, 11 A. 606; Marqueze vs. Leblanc, 29 A. 203,

*591Tlie, present ease cannot be distinguished in principle. The proceeding, it is true, was by attachment, and not originally in execution of judgment, but it was only after it had culminated in a final judgment against the defendant, with privilege on the property attached, and only in execution of that judgment, that the rule on the garnishee was taken, from the judgment on which the present appeal is prosecuted. That the defendant was not a necessary party to the rule, is apparent from the fact that the plaintiff did not make him a party. How, then, can the plaintiff be heard to set up that he was a necessary party to an appeal from the judgment on such rule %

Our former decree herein is, therefore, annulled and set aside, and it is now ordered that the motion to dismiss this appeal be denied.