Item Co. v. Nu-Grape Bottling Co.

Plaintiff obtained judgment against defendant and thereupon issued execution for the amount thereof; by virtue whereof relator, in his capacity of civil sheriff, seized and took into his possession certain physical property belonging to the defendant.

Thereafter one Harry H. Forst qualified as receiver for the defendant, and took a rule upon said sheriff to show cause why the property so seized should not be relinquished and turned over to said receiver.

The rule so taken was made absolute by judgment of the court below: whereupon plaintiff took a suspensive appeal therefrom. Which appeal is now pending before this court and is fixed for hearing on the very day this opinion is handed down. See our No. 27708, 107 So. 770, post, p. 975.

I. Meanwhile the civil sheriff applied for this writ of prohibition, on the ground that said court, whose process he was then executing, "exceeded the bounds of his (its) jurisdiction, and said judgment (upon the rule) is null and void"; and on the further ground that "it is not competent for a receiver to take property from the sheriff which has been seized under a lawful judgment rendered before the receiver was appointed, and the court was powerless to make said rule absolute for that reason." II. The receiver asks that the writs herein issued be recalled, on the following grounds (substantially), to wit: (1) That the sheriff has no personal interest in the matter; (2) that the remedy is by appeal and not by recourse to the supervisory powers of this court; and (3) that the judgment below was correct. III. 1. The contention made by the sheriff, that the court below (out of which the execution issued) is without jurisdiction and powerless to regulate its own process, is of course frivolous; the fact being that said court alone (and this court under itssupervisory powers) had jurisdiction in the premises. Lazarus v. McGuirk, 8 So. 253, 42 La. Ann. 194.

2. It is quite true that the sheriff has no personal interest in this litigation; and, of course, a court officer cannot be permitted to interject himself into a litigation merely because of the fees which may accrue to him therein. But in this case the party having an interest to wit, the plaintiff, has intervened herein and joined the sheriff in applying for the writs. And we know of no reason why an intervention (C.P. art. 389) may not be filed in a case coming before this court under its original or supervisory jurisdiction, which (except as to the subject-matter thereof) differs in no way from the original proceeding before any other court. Lazarus v. McGuirk, supra. The case of Laloire v. Wiltz, 31 La. Ann. 436, has not the slightest application to such a proceeding.

3. It is also quite true that in general this court will not issue a writ under its supervisory powers in cases where the party complaining has a remedy in due course by appeal. But soon after the grant of general supervisory powers to this court by the Constitution of 1879 (article 90), the court held that this constitutional grant of power was meant to "emancipate" it from many restraints theretofore imposed upon it by the Code of Practice. State ex rel. City of New Orleans v. Judge. 32 La Ann. 549. And in the very next case decided, this court proceeded to further emancipate itself, by declaring, in effect, that the only restraint upon it in the exercise of the supervisory jurisdiction so granted was its own "sound discretion." State ex rel. Sinnott v. Falls, 32 La. Ann. 553.

Accordingly, the writ herein issued was granted in what was (or then seemed to be) the sound discretion of all the justices of this court; and it has thus become (in the language of Mr. Chief Justice Nicholls, in State ex rel. Rivoire v. St. Paul, Judge, 28 So. 973, 104 La. 203), "an accomplished fact, * * * (which) calls for no decree of this court in the premises. * * *" And finally, since the case is actually here on appeal, and the oral argument of that appeal will doubtless enlighten us on the merits of the controversy, before this opinion becomes final, and thus enable us to correct any error which we may make thereupon; since also a speedy determination of this case will save a considerable sum incosts to the litigants; since the point presents only a meretechnical matter of procedure, involving no substantial rights of the litigants; and since (the matter having gone thus far) there is no reason why we should take two bites at the same cherry; "weprefer to put an end to the case now," as we have erstwhile had occasion to do. Tonahill v. Molony, 101 So. 130, 156 La. 753. The more so as we find in this case the above "strong circumstances going to make the case peculiar and exceptional and (thus) robbing it of serious danger as a precedent." Fenner, J., in Succession of Buissiere, 5 So. 668, 41 La. Ann. 217.

IV. For the rest, our learned brother of the district court erred in his judgment directing that all proceedings under plaintiff's judgment "be immediately arrested and stayed," and ordering that all the property and effects under seizure by virtue of the execution issued thereunder "be surrendered forthwith" to the receiver.

This was, of course, even more immediately effective than aninjunction against further proceeding with said execution; and this court said in Duval v. T.P. Ranch Co., 91 So. 656,151 La. 142 (citing authorities too numerous to be repeated here), that:

"It is well settled that a receiver cannot enjoin the execution of a judgment wherein the seizure occurred prior to his appointment in the absence of allegations of fraud or special interest in the property seized."

Decree. The writs herein issued are therefore perpetuated; the judgment of the lower court arresting and staying proceedings under the judgment in favor of plaintiff, and directing the sheriff to surrender the property seized to the receiver, is annulled and set aside; and it is now ordered that the rule taken by the receiver be dismissed, at his cost in both courts.

ROGERS, J., takes no part.