McMichael v. Thomas , 164 La. 233 ( 1927 )

The present suit is No. 17492 on the docket of the Ninth judicial district court for the parish of Rapides, and is an action to annul a certain sale of stock in the Thomas Gravel Company from defendant to plaintiff, on the ground of fraudulent representations alleged to have been made to plaintiff by defendant prior to the sale in question as to the amount of net dividends paid on the capital stock of said company in the year 1924.

It is alleged in plaintiff's petition that A.H. Henderson signed two notes with plaintiff for the credit portion of the purchase price of this stock, and Henderson, as intervener, has joined plaintiff in the demand for the rescission of the sale.

From a judgment rejecting plaintiff's demand, plaintiff and intervener have appealed.

The transcript in this case was filed September 26, 1926. The motion to dismiss is predicated upon the allegation that, since the appeal has been lodged in this court, all of the right, title, and interest of A.W. McMichael in the present suit has been seized and sold in execution of the judgment obtained by the First National Bank of Pineville against A.W. McMichael, in suit No. 17919 on the docket of the Ninth judicial district court for the parish of Rapides, and has been acquired by Ira L. Thomas, defendant herein.

The notice of seizure in suit No. 17919 was filed in this case December 6, 1926, and we find annexed to the motion to dismiss a procès verbal reciting the seizure, advertisement for sale on December 8, 1926, and the sale on January 15, 1927, to the defendant, Ira L. Thomas, of all the right, title, and interest of the plaintiff, A.W. McMichael, in the suit now before us on appeal.

It is clear from the above statement that the issue whether plaintiff has any interest in the present suit is a question of fact which has not been tried in the court below, and is presented on appeal for the first time.

Where, on appeal, a controversy arises whether the appellant has been divested of his interest in the suit, the case will be remanded to court a qua to determine that issue. Madonia v. Meyer et al., 153 La. 2, 95 So. 261.

It is therefore ordered that this case be remanded to the district court for the parish of Rapides to try the issue whether the interest of plaintiff in the present suit has been divested by the alleged sheriff's sale and vested in defendant herein, and that all further proceedings in this case await the final determination of that issue.

On Motion to Dismiss. The evidence taken in the court below upon the remanding of this case is now before us. It appears from the evidence that, since the appeal has been lodged in this court, the appellant, A.W. McMichael, has been divested of his interest in the present suit, and that said interest has become vested in Ira L. Thomas, defendant and appellee, by virtue of his purchase of same at sheriff's sale made on January 15, 1927, in execution of judgment obtained by the First National Bank of Pineville against A.W. McMichael in suit No. 17919 on the docket of the Ninth judicial district court of the parish of Rapides.

It is clear, therefore, that whatever right of action plaintiff may have had in the present suit has become extinguished by confusion through the acquisition of such right by defendant.

When a defendant purchases a claim against himself, he can move to dismiss the suit on the ground of confusion. Nugent v. McCaffrey, 33 La. Ann. 271; R.C.C. art. 2217.

The motion to dismiss the appeal as to the plaintiff must prevail.

The question yet to be decided is whether the rights of A.H. Henderson, intervener, remain to be determined as between him and the defendant.

The intervener did not acquiesce in the judgment of the lower court rejecting his demand, but has appealed.

As the judgment against the intervener cannot be brought before us by plaintiff's appeal from the judgment against himself, it is clear that the appeal taken in this case by the intervener is separate and distinct from that prosecuted by the plaintiff, and cannot be affected by the dismissal of plaintiff's appeal. White v. Fifth Regular Baptist Church, 31 La. Ann. 521; Lane v. Clarke, 27 La. Ann. 201; Coleman v. Haight, 14 La. Ann. 564.

Necessarily intervener has the right to be heard on appeal, and to have the judgment rendered against him changed, if erroneous, as a dismissal of his appeal would be equivalent to affirming the judgment of the lower court, and, if hereafter intervener should renew his suit, he would be confronted with a plea of res adjudicata as a bar to any further proceeding.

To dismiss intervener's appeal would be equivalent, therefore, to rendering a final judgment against him without a hearing, and for this reason the motion to dismiss as to intervener must be denied.

It is therefore ordered that the motion to dismiss the appeal in this case be sustained as to the appeal of the plaintiff, but denied as to the appeal of the intervener, at the cost of defendant.

On the Merits.