
    NO. 8643
    COURT OF APPEAL PARISH OF ORLEANS.
    UNITED STATES HOFFMAN MACHINERY INC. versus JACK NESBIT & MILES MASHBURN et als.
   Dinkelspiel; J.

This ligigation presents, substantially, the following facts:

appellant The brief of the^p$PC*®®tWfcizls states oorreotly the oause x of aotion.

‘ "The St. Charles Street Realty Co., Ino., one of the -defendants in the above proceedings sued out a provisional seizure against the other defendants and Mashburn and seized a pressing ■maohine -under a claim of Eighty Dollars, for rent. This proceeding was in the First City Court; the plaintiff in the above oase, the. United States Hoffman Machinery Co., Ino. filed an intervention and third opposition, olaiming a superior privilege on the maohine for Three Hundred- Seventy Dollars. The Court on final trial sustained the olaim for Eighty Dollars, ordered the property provisionally seized to be sold under a writ of fieri faoias, in satisfaction of the debt and dismissed the claim of the United States Hoffman Machinery Co., Ino. the pr present plaintiff, on the ground- that the amount involved was above the jurisdiction of the Court; the fi.fa. issued; the property provisionally seized was seized under the fi.fa. ánd at about the time the oonstable was ready to advertise it for sale the above suit was instituted by plaintiff.

Subsequently the property was actually seized and the Sheriff took from the Constable, the maohine whioh the Constable had in his possession and whioh he was prepared to sell to satisfy the the lessor's olaim. The Constable filed a rule in the District Court, setting up all the facts and the District Judge ordered the sheriff to return to the oonstable the property,

The St. Charles Street Realty Company, Inc., one of the defendants ksx herein, being a party to the suit and being the plaintiff in the provisional seizure in the First City Court, moved to dissolve the injunction issued in the oause, preventing the annUft. Oonstable from selling the machine on the ground that the United States Hoffman Machinery Co., Ino.'s. remedy was by third opposition in the Distriot Court, claiming the prooeeds realized from the sale to be made by the Constable under the judgment of overruled, +the First City Court; this motion was/stesac&sw*l$ being based upon no right or oause of aotion for the issuanoe of an injunotion in the said oause. The Distriot Court heard the motion to dissolve and overruled it, leaving the litigation in that position; the Constable is in possession of this maohine under a fi.fa. issued from the First City Court without power to sell the maohine beoause he is enjoined from doing so by the Distriot Court, thus leaving the plaintiff with the executory prooess, ordering the seizure and sale, from the District Court, when the Distrlot Court subsequently required the maohine to be returned to the Constable of the First City Court/

It is in this condition of affairs that this appeal is prosecuted and the whole question that presents itself to this Court is, has a litigant, whose claim exceeds the maximum jurisdlotion.of the First City Court, the right of going into the Dis-,through injunction proceedings, triot Court/and preventing the sale of the property upon whioh he claims a privilege, or is not his remedy simply to apply to the Distriot Court, mating the seizing creditor and the Constable a party and requring the party to either hold the proceeds in his hands by an order of the Distriot Court, xfci$nxixx*g!ix±:k requiring the seizing creditor in the suit to oome into the Distriot Court to litigate the same as though the seizure had been made from the opponent would have the right to litigate by third opposition.

Under the Article of the Code of Practice, 401, "Third Opposition claiming provllege is made by motion — Sheriff hold prooeeds. If, on the contrary, the.opposition be made on the ground that the third opponent has a privilege which entitled him to be paid in preference to the party mating the seizure out of the proceeds of the sale of the property seized, as when there are several seizure's :>x oonfliotlng olaims on the same property, such opposition may be made by motion, of which due notice must be given both the to the party who has made the seizure and tckx to the sheriff; and the oourt, without requring any seourity from the third opponent, shall direct the sheriff to retain in his hands, subject to their further order, the proceeds of the sale.

It has been held in the case of Edward Shiff & Co. vs. P. Carprette et al, 14 Ann. p. 801, quoting from the syllabus:

"When a party has a olaim exoeeding in amount the jurisdiction of a Justioe of the Peace, and bearing a privilege upon property attaohed by another party in a Juetioes1 Oourt, his remedy is by a suit in theDistrlot Oourt, olaiming ttspxix his privilege and enjoining the officer having the writ of attachment Issued by the Justice from proceeding with its execution, and paying over the prooeeds to the attaching oreditor, or by a rule taken upon the attaching oreditor, to show oause why he should not be paid by preference out of the prooeeds of the sale of the property attaohed."

The same doctrine is announced and affirmed in the 51st Ann. p./fetó* in the Case of Brown, Jr., versus Washington.

The syllabus there reads:

The olaim of the third opponent was not liquidated, and he. was prevented by its amount from going before a justioe of the peaoe oourt to assert the olaim and the privilege by which it was seoured against another oreditor, who was having judgment rendered in his favor by a justioe of the peace oourt, executed to satisfy the privilege recognized by the judgment on the property £sk to whioh opponent also olalmed a privilege.

opponent It was there held: That the third/«pgaatiiaa oan oompel his adversary to come into the District- Oourt to litigate, his right to a privilege.

Under the artioles of the Code of Praotfoe and the authorities oited, the injunction should have been dismissed and parties relegated to their rights as requlred'by law. Injunction is not the proper remedy in this oase.

For the reasons assigned, it is ordered, adjudged and deoreed, that the lnjnotion issued in the first oase and maintained, be dissolved and that plaintiffs, the United States Hoffman Machinery Company, Ino., if they so desire, will have a right to file a third opposition by rule or otherwiee/ Sc maintain whatever privilege they may have and that the judgment of the Court aqua be set aside and the proceedings dismissed, at plaintiffs' costs.

-Judgment reversed and injunction dissolved-  