Pittman & Barrow v. Robicheau ( 1859 )

Buchanan, J.

The police jury of Lafourche having obtained a judgment against one Broun, seized under execution property of their debtor, which was adjudicated to him at a second crying, on twelve months’ credit. Brown gave his bond for the price of adjudication, with -John B. Pittman, as his security. The bond not being paid at maturity, a writ of fieri facias was issued upon the same against Pittman, under which the undivided half of certain lands, farming utensils, animals and negroes, being the entire interest of Pittman in an agricultural partnership subsisting between himself and Robert R. Barrow, under the firm of Pittman & Barrow, was seized and advertised for sale.

John B. Pittman and Robert R. Barrow, both join in a petition for an injunction, which has been granted, to stay the proceedings of the police jury under their said seizure. The grounds alleged for the injunction, are the following :

1st. Because sufficient property had already been seized under a fi. fa. issued previously, and never released.

2d. Because the issuing of a second fi. fa. and the seizure of property under the same, are contrary to the express agreement of the parties.

3d. Because, under a fi. fa. against J. B. Pittman solely, the assets of the said partnership could not he seized, and all the property seized belongs to the said partnership, &c.

Upon the first and second grounds for injunction, the evidence disproves the allegations of the petition.

Upon the third ground, the counsel of plaintiffs relies upon the authority of the cases of Smith v. McMicken, 3 An. 322 ; Bank of Tennessee v. McKeage, 11 Rob. 130 ; Carvin v. Bates, 10 An. 756 ; and Alexander v. Burns, 6 An. 704.

All these cases were seizures of particular assets of a partnership for a debt due by one of the partners. Whereas the present seizure, as the evidence shows, (although there is an allegation in the petition to the contrary,) comprehends the entire interest of John B. Pittman, the debtor, in the partnersliip of Pittman <& Barrow. Such a seizure is sanctioned by Article 2794 of the Civil Code. And in the earliest of the cases cited, that of The Bank of Tennessee v. McKeage, the court said: “ The interest of a partnerin a particular thing, or piece of property belonging to the firm, cannot be seized or attached for his individual debt. An individual creditor cannot, under an execution or attachment, have the half or third of a piece of goods, or other article belonging to the partnership, seized. He must have the whole share or interest of the indebted partner seized, and thus dissolve the partnership, and take the share after the payment of the partnership debts.” To the same effect, are the cases of Cucullu v. Manzenal, 4 N. S.; Craft v. McKneely, 1 La.; Baca v. Ramos, 10 La.; Oliver v. Gwin, 17 La.; Nelson v. Connor, and Lee & Bullard, 3 An.; Harris v. Bank of Mobile, 5 An.; Carvin v. Bates, 10 An.; and Davis v. Carroll, 11 An.

The single case of Smith v. McMicken, 3 An., contains expressions which have been supposed, although erroneously, to conflict with the doctrine thus uniformly held, as well by the bench which decided that case, as by the predecessors and successors of that bench.

The error consists in mistaking the antecedent of the pronoun it in two places in the following sentence of the opinion read by Mr. Justice Slidell, as the organ of the court: “ From these principles we think it fairly results, that the individual creditor of a partner cannot seize a particular asset, the property of the partnership, nor even the so called interest of the partner in it, under the pretext that his debtor has an individual interest in it.” The two its italicised by us in this quotation, evidently refer to asset, as their antecedent, and not to partnership. The contrary construction would make the last branch of the proposition obiter dictum, uncalled for by the case before the court, which, as we have already observed, was a seizure of a particular asset, or of the interest of an individual partner in that asset, and by no means a seizure of that partner’s shave or interest in the partnership itself. And the presumption is entirely against Judge Slidell’s having intended an obiter dictum, as at variance with the known caution and acute apprehension of the points in controversy, which distinguished that learned judge. Besides, how can we reconcile the construction given to the case of Smith v. McMicken by plaintiff’s counsel, with the emphatic enunciation of a contrary doctrine on repeated occasions, in the cases cited above, by all of the Judges who took part in the decision of Smith v. McMicken — not to speak of the express law of Article 2794 of the Civil Code.

We conclude that the District Judge erred in maintaining this ground of injunction.

The property seized should be advertised by the Sheriff, and sold as the share of John B. Pittman, in the partnership of Pittman & Barrow; for the reason, that the purchaser ought to bo informed that he is buying, not a joint interest in the pi-operty, but the partnership interest of an individual partner, and that the property, in his hands, will be subject to the settlement of partnership debts, in a liquidation to be made of the partnership, according to the 2794th Article of the Code.

In this case, the Sheriff has not advertised the property or interest seized, as, partnership ; but the plaintiffs have not made this objection a ground for injunction, and are not entitled to have the writ perpetuated for this cause. An injunction will only be perpetuated, as issued, for some legal cause stated in the petition.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that there be judgment dissolving the injunction herein issued, without damages; that the Sheriff, in re-advertising the property seized, make mention that the same is the share of John B. Pittman in the partnership of Pittman <& Barrow, to be sold subject to the payment of partnership debts ; and that the plaintiffs and appellees pay the costs in both courts.