George Sliman Co. v. Hemperly , 1936 La. App. LEXIS 282 ( 1936 )

OTT, Judge.

On October 17, 1930, the plaintifí company secured a judgment against the defendant, R. T. Hemperly, in the district court of Vernon parish for the sum of $753.82, with interest and cost, subject to certain credits. Plaintiff had a writ of fieri facias issued on said judgment out of the district court of Vernon parish directed to the sheriff of Beauregard parish for execution. In connection with the execution of said writ, plaintiff filed a petition in the district court of Beauregard parish alleging that it was informed and believed that the City Savings Bank & Trust Company, domiciled in the parish of Beauregard, was indebted to the defendant, R. T. Hemperly, or had property in its possession belonging to him, and asked that said bank be made garnishee in the suit and cited to answer the usual interrogatories.

The said bank was cited as garnishee and answered that it had on deposit subject to check the sum of $490.01 in the name of said R. T. Hem'perly. Under said writ of fi. fa. the sheriff of Beauregard parish also seized certain real estate in said parish, but the seizure of the real estate was released, leaving the deposit in said bank as the only matter in controversy.

Claiming to be the owner of the money garnished in the City Savings Bank & Trust Company, R. F. Hemperly, the son of R. T. Hemperly, the judgment debtor, filed an intervention and third opposition in the garnishment proceedings in Beauregard parish. The third opponent alleges in his third opposition that he sent the money garnished to the defendant, R. T. Hemperly, as his agent, which money was to be used by his father as his agent in improving some property owned by the opponent at Ludington, near De Ridder, and to replenish the stock of goods in a small store which his father was operating for him at that place. Third opponent also claimed damages for loss of trade in the store and for attorneys’ fees, all on account of said seizure, which damages he claims in the sum of $600.

Plaintiff filed an exception to the jurisdiction of the court of Beauregard parish to pass on the claim of the third opponent on the ground that the district court of Vernon parish, which court rendered the judgment, was the proper court to pass on said opposition. This exception was overruled-. Plaintiff answered the intervention and third opposition of R. F. Hemperly, denying that he is the owner of the money on deposit in said bank in the name of R. T. Hemperly, and averring that said money is the property of their judgment debtor, R. T. Hemperly.

Judgment was rendered in favor of the intervener and third opponent decreeing him to be the owner of said money on deposit in said bank in the name of R. T. Hemperly and ordering same turned over to him. Plaintiff has appealed.

No mention was made in the judgment about the claim of third opponent for damages, and, as no amendment of the judgment in that respect is asked for in this court, this claim passes out of the case. •

Exception to Jurisdiction.

Learned counsel for plaintiff urge in this court the exception to the jurisdiction of the district court of Beauregard parish, and insist that the claim of ownership of the third opponent to the property garnished in the parish of Beauregard can only be determined by the Vernon parish court in which the original judgment was rendered. They contend that the district court of Beauregard parish is limited to ascertaining whether or not the garnishee in that parish holds any property subject to .the writ issued out of the Vernon parish coürt, and that any conflicting claims relative to said property must be referred to the court in which the original judgment was rendered and which court has control of the execution of the judgment.

As the third opponent claims to be the owneY of the money seized, his. claim is purely and simply a third opposition. Code Prac. art. 396. That being true, such opposition must be made before the court granting the order of seizure or rendering the judgment under which the seizure was made. Code Prac. art. 397. However, there are well-recognized exceptions to this rule. One of these exceptions is, where a fieri facias is directed to the sheriff of another parish and property is seized under the writ in a parish other than the one in which the judgment was rendered, the court of the parish where the seizure is made and the property located has the right to pass on the claim of a third person claiming ownership of the seized property. Gondran v. Nelson Co.-Op. Ass’n, 152 La. 609, 93 So. 918; Coleman v. Brown, 16 La.Ann. 110; Jack v. Harrison, Jr. & Co., 34 La.Ann. 736.

In the present case the district court of Beauregard parish had jurisdiction to pass on the claim of third opponent. The exception was properly overruled.