McDonald v. Karp , 1926 La. App. LEXIS 74 ( 1926 )

CLAIBORNE, J.

This is a suit against the surety on a release sequestration bond.

The plaintiff in the original suit against the defendant filed August 22, 1922, alleged that on August 7 he bought an automobile from: the defendant Karp; that on August 18 said Karp took possession of said automobile illegally and drove it to a place of hiding; and he prayed for a sequestration and for judgment recognizing him as owner of said automobile. The sequestration issued and the sheriff took possession of the automobile. The defendant Karp obtained a release of the sequestration on furnishing a bond for $150 with Ray J. Martinez as surety.

After an answer filed by defendant Karp and sworn to by his attorney in the absence of Karp from the city there was judgment on April 10, 1923, in favor of plaintiff, recognizing him as the owner of the automobile and putting him in possession thereof. The attorney for the defendant was absent from the trial.

On April 25, 1923, the plaintiff, McDonold, filed a rule in which he alleged all the facts above related and further alleged that he had made diligent search to locate the said truck and the said J. Karp, all without avail; and on further suggesting to the Court that the delays within which the defendant might take a suspensive appeal have elapsed and that your mover desires now to have a personal judgment rendered against the said Ray J. Martinez, surety on the sequestration bond furnished by the defendant, and he concluded by praying that Martinez surety show cause “why a personal judgment should not be rendered against him and in favor of the said D. A. McDonald in the full and true sum of $150, together with all costs of these proceedings.”

The rule was served upon Martinez in person.

On the trial of the rule, Martinez was absent and not represented.

The plaintiff testified:

“Q. Since obtaining tbe judgment, bave you made any attempt to locate Hr. Karp or tbe truck?

‘‘A. I bave not.

“Q. Do you know where Mr. Karp is?

“A. I think be is out of town. Several parties would like to locate bim.

“Q. Your information is that he bas left town?

“A. Yes, sir.

“Q. What is your information as to where tbis truck is?

“A. I don’t know; bave no idea.

“Q. You bave made demand on Mr. Martinez, tbe surety by tbis rule, to pay you tbe amount?

‘‘A. Yes, sir.”

There was judgment for plaintiff against Martinez for $150 and Martinez bas appealed.

Tbe defendant bas argued in tbis Court that tbe rule against Martinez was premature, and that it should bave been preceded by a writ against tbe defendant Karp and a judicial demand for tbe delivery of .the automobile.

In support of his proposition be cites Welsh vs. Barrow, et al., 9 R. 535.

Tbe facts of that case are as follows:

Welsh was overseer for Shields,, owner of a sugar plantation; be sued bim for $900, with privilege on tbe crop, bis salary for tbe year 1841, and sequestered tbe crop in tbe bands of Barrow, who bad purchased tbe -plantation. Barrow bonded tbe sequestration with G-rinage as surety. There was judgment in favor of Welsh against Shields for $900, with privilege on tbe crop. See . Welsh vs. Shields, 6 Rob. 484, et al. 1

Thereafter Welsh sued Barrow and Grin-age upon their bond for tbe amount thereof. Welsh vs. Barrow, 9 Rob. 535. Tbe Court dismissed tbe suit, as in case of non-suit, on tbe ground that Barrow, tbe principal on tbe bond, bad not been put in default to deliver tbe property sequestered, and that no judgment bad been rendered against bim. But tbe case under consideration is different in tbis, that Karp, tbe principal on tbe bond, bas refused to deliver tbe automobile, has- been put in default for so doing, by tbis suit, and that judgment bas been rendered against bim condemning bim to deliver tbe automobile, which be bas failed to do.

Tbe necessity of putting in default no longer obtains when it is impossible or useless. “Lex neminem cozit ad vana.” 2 H. D. 1021, 2 L. D. 478, Garcia vs. Champonier, 8 La. 522, Hivert vs. Lacoze, 3 Rob. 358.

Tbis principle is recognized in tbe Welsh case. Tbe Court said on page 539:

“Non constat that tbe property sequestered was not in Barrow’s possession at tbe time that the execution should bave issued and that be was unable to deliver it then, so as to render tbe putting in default a useless and nugatory proceeding. If so, it was tbe duty of tbe plaintiff to show tbe fact by tbe return of tbe Sheriff on tbis execution, after an unsuccessful attempt to obtain its delivery, or to estaolisb that our requiring it would prove inefficient.” See also Noble & Kaiser vs. Warner, 21 La. Ann. 284, Downey vs. Kenner & Buckley, 42 La. Ann. 1129, 8 South. 302.

Default is also unnecessary when tbe debtor refuses to comply with the obligation. New Orleans & Nashville R. R. Co. vs. Ganalb & Co., 18 La. 510.

Article 596 of the Code of Practice provides that no suit shall be instituted against such security (on an appeal, bond) until tbe necessary steps shall bave been taken to enforce payment against tbe principal.

Yet it has been repeatedly decided that proceedings against the security may be instituted without previous steps against the principal on the bond when such steps would be impossible or useless. Wogan vs. Thompson, 10 La. Ann. 284; Bourgest vs. Adams, 11 La. Ann. 78; Trimble vs. Brichta, 11 La. Ann. 271; Alley vs. Hawthorne, 1 La. Ann. 122; LeBlanc vs. Succession of Massieu, 27 La. Ann. 325; Simonds vs. Heinn, 22 La. Ann. 297. That principle has been applied in sequestration cases. Downey vs. Kenner & Buckley, 42 La. Ann. 1129, 8 South. 302. When the principal is not present in the parish nor represented, the surety is liable. Pinard vs. George, 30 La. Ann. 386.

The plaintiff testified that from information received the defendant Karp was “out of town” and that he had made demand upon the surety. He could not be required to do more. On the trial of the rule against the surety, Martinez, he made no appearance. Upon the confirmation of a default less strictness of proof is required.

We are therefore of opinion that the judgment is correct and it is therefore affirmed.