Item Co. v. Pan American Cigar Co. ( 1927 )

CLAIBORNE, J.

The intervenor claims the ownership of the property seized under a fi fa issued against the defendant.

The facts are as follows:

The plaintiff alleged that from November 1st, 1926, to May 31st, 1927, it did certain advertising for the defendant according to the itemized account annexed to the petition amounting to the sum of $224.54, upon which the defendant has paid $50, leaving a balance due of $174.56 for which it prays judgment. ■

The citation was addressed to “Pan American Cigar Co. Inc.” and was served on “Miss A. Young, bookkeeper, all other officers absent at time of service”.

Judgment by default was entered August 26th for $174.56 against 'the “Pan American Cigar Co., Inc.”

Notice of judgment addressed to “Pan American Cigar Co., Inc.,” was served August 26th, 1927, on the “bookkeeper, Miss H. Young, no other officers being present at the time service was made”.

On August 27th, 1927, the defendant, the Pan American Cigar Company, Inc., applied for a new trial on the ground that a fi fa had issued on the same day that the judgment was rendered and property seized, while under C. P. 1085, amended by Act 102 of 1898, the fi fa was “permissible only three days after service of notice of judgment”.

The rule for a new trial was dismissed.

On September 13th, 1927, Arnold Falk filed an intervention in which he alleged that on September 6th he had been appointed receiver of the “Pan American Cigars, Inc.”; that on August 26th, 1927, judgment had been rendered against the Pan American Cigar Company, Inc.; that the plaintiff issued a fi , fa under said judgment by virtue of which the constable seized the property of the Pan American Cigars, Inc., “consisting of one safe, back fixtures, six desks, )two cabinet files, one lot of cigars and one cash register”; all of the value of $300; that those articles are not the property of the “Pan American Cigar Company, Inc.”, defendant in the suit and the debtor, but are owned by the intervenor herein, the “Pan American Cigars, Inc.”, a separate and distinct corporation, incorporated by Act of George P. Eberle, Notary, dated January 3rd/ 1927, while the Pan American Cigar Company, Inc., was incorporated by Act of E. M. Cahn, Notary, dated November 18th, 1920.

Intervenor further alleged that in case this court should decide that the judgment herein is against the Pan American Cigars, Inc., and that the property above described is subject to be seized under it, then intervenor alleges that the fi fa issued thereunder is illegal for the following reasons:

I. That the fi fa issued on the same day as the signing of the judgment and before the expiration of the three days allowed for an application for a new trial.

II. That the fi fa issued before the expiration of the delays allowed for a suspensive appeal during which a receiver was appointéd to intervenor, the “Pan American Cigars, Inc.”

III.That it is to the interest oi£ the Pan American Cigars, Inc., that its property should be released, otherwise it will be sold by the constable at a sacrifice.

Intervenor prayed for judgment decreeing the property hereinabove described to be the property of the Pan American Cigars, Inc., A. Falk, Receiver, and decreeing the said receiver, in his said capacity, entitled to its possession forthwith.

Arnold Falk made affidavit that all the facts contained in his petition were true and correct.

The plaintiff, the Item Co., excepted to the jurisdiction of the court, and filed a general denial to intervenor’s petition.

After trial judgment was rendered in favor of intervenor forever enjoining the execution of the fi fa against the property above mentioned. From this judgment the Item Co. has appealed.

The exception to the jurisdiction of the First City Court must be maintained. Want of jurisdiction ratione materiae cannot be waived nor consent give jurisdiction, 2 La. Dig. 425. Paragraph three of Section 91 of Article YII of the Cdnstitution, p. 65, provides:

“Said court (City Court) shall also have jurisdiction concurrently with the Civil District Court of all suits for moneyed demands above one hundred dollars and not exceeding three hundred dollars exclusive of interest.”

Arnold Falk, receiver and intervenor, as such, made affidavit in his petition that the property claimed hy the “Pan American Cigars, Inc.” was “valued at the sum of $300”. As a witness he swore that it was worth “about $230”.

George M. Gay, the deputy constable who made the seizure, swore that the approximate value of the property was “three or four hundred dollars”.

There are two reasons why the City Court had no jurisdiction of this ease. The first is that the property claimed and in dispute is worth more than one hundred dollars, the utmost limit of its general jurisdiction fixed by Section 91; and the second is that intervenor’s suit is not one for a “moneyed demand” but for ownership of property illegally seized as the property of the defendant in the suit. Shiff & Co. vs. Carprete, 14 La. Ann. 801; Hagan vs. Hart, 6 Rob. 427; No. 7179 Orl. App.; Tessier Dig. 60.

It is therefore ordered that the judgment appealed from be set aside and annulled and intervenor’s petition be dismissed for want of jurisdiction of the City Court, intervenor to pay costs in both courts.