
    (46 South. 28.)
    No. 16,788.
    ARCADIA COTTON OIL MILL & MFG. CO. v. FISHER. SILBERNAGEL CO., Limited, v. SAME.
    (March 2, 1908.
    Rehearing Denied March 30, 1908.)
    1. Actions — Consolidation—Joint Trial.
    Technically there was no consolidation of the causes.
    2. Courts — Different Decrees — Jurisdiction on Appeal.
    A judgment was rendered in each case. One is subject to review by this court; the other by the Court of Appeal.
    3. Appeai>-Motion to Dismiss.
    On motion to dismiss two grounds are presented for dismissing the appeal.
    These two cases were consolidated for convenience of the trial. The Arcadia Cotton Oil Company Case is transferred to that court.
    4. Same.
    Appellee complains of the record as prepared by the clerk. After having read it in order to determine whether the appeal should be dismissed on the ground urged, the courc found that the issues could be decided on the present record.
    The third or last motion was made to have plaintiff’s judgment amended. It is amended. The appeal is not dismissed, for the reason that the party is not estopped by pleading before a court of limited jurisdiction an amount in reconvention as due for damages, particularly if he reserves his right to the amount exceeding the jurisdictional limit of the court. The missing papers are therefore not needful in order to decide the cause.
    5. Judgment — Res Judicata.
    The judgment pleaded as res judicata did not pass upon the issues involved in this case. In any. case it did not have the effect of res judicata.
    Again, the asserted missing papers are not of importance.
    ■6. Attachment — Gbound for Attachment.
    The facts sustain the attachment in so far ns defendant sought to dispose of his property. Plaintiffs had a right to bring suit on the note they held.
    7. Same — Judgment.
    Its amount is reduced from the sum allowed in the district court.
    -S. Same — Right to Attach.
    Plaintiffs had tahen a mortgage to secure the payment of their advances to defendant. The value of the property mortgaged being about equal to their claim, they are not entitled to an attachment.
    (Syllabus by the Court.)
    Appeal from Second Judicial District •Court, Parish of Webster; Richard Cleveland Drew, Judge.
    Action by- the Arcadia Cotton Oil Mill & Manufacturing Company against A. B. Fisher and by the Silbernagel Company, Limited, against the same defendant. Actions tried together. From the judgments, plaintiffs appeal. Action by the Arcadia Company transferred to Court of Appeal.
    Judgment in case of the Silbernagel Company amended.
    Wise, Randolph & Rendall, 'for appellant Silbernagel Company. Stewart & Stewart, Alexander & Wilkinson, and Sandlin & Robertson, for appellee.
   Motion to Dismiss for Want of Jurisdiction.

BREAUX, C. J

This motion relates exclusively to the Arcadia Cotton Oil Mill.

. The ground for dismissal in this case is that plaintiff’s claim is less than $2,000, and that this court has no jurisdiction on appeal to hear and determine the matters in dispute as to the plaintiff.

The amount of the main demand is controlling as relates to jurisdiction without regard to pleas in reconvention, whether allowed or not in the court of the first instance.

The appeal must be dismissed from this court and transferred to the Court of Appeal.

The causes were tried together and considered together only for the purpose of the trial, and the issues in the two cases were separate and distinct.

Separate judgments were signed, and the issues as to plaintiffs were always kept distinct.

Strictly, under the Code of Practice, the causes could not be consolidated.

“At the request of one of the parties, the same may be consolidated if from their nature they may be compensated in order that they may all be decided by one single judgment.”

Jurisdiction was 'not conferred on this court by the effect of the joint trial.

The required oath for the transfer to the Court of Appeal has been made and is filed 'here.

It is therefore ordered, adjudged, and decreed that the said cause is dismissed from this court and transferred to the Court of Appeal, Second Circuit, state of Louisiana, to be there proceeded with as if it had been originally appealed to the proper court; costs of appeal to be paid by appellant.

Motion to Dismiss.

Plaintiff brought this suit to recover from defendant the sum of $5,000, interest, and fee of attorney on a note for that sum signed by defendant as maker, secured by mortgage on the property of defendant described in plaintiff’s petition.

The following is the consideration of this note as we gather:

In the year 1905 plaintiff agreed to open a line of credit for $5,000 for the defendant, thus enabling him to carry on the business in which he was engaged, which consisted mainly of buying and selling cotton, and in conducting a country store business.

Plaintiff averred that defendant received the full sum of the credit promised.

This note was secured by mortgage on 120 acres of hill land; also on a small vineyard.

The plaintiff averred that the property described in the mortgage deed is not sufficient in value by $2,500 to pay this mortgage note, and that the defendant had other property.

Plaintiff asked for and obtained a writ of attachment directed against defendant.

The usual allegations were made for this attachment of intention on the part of defendant to sell or dispose of his property with intent to defraud his creditor.

Some time after the property had been attached and seized, defendant filed a rule to have the seizure reduced as excessive. In accordance with an order on this rule, experts were appointed to appraise the property.

The return of these experts to the court shows that defendant’s property to the amount of $20,560 was seized and attached. This property consisted of immovable and movable property.

The defendant owned two stores; one at Doyline and the other at Selbey. The stocks and property of the defendant in these stores were attached as well as other property.

As relates to the amount for which plaintiff brought suit, there is a difference of about $500; the defendant’s contention being that the amount is about $4,500, instead of $5,000 claimed by plaintiffs. Of this later.

Going back to a time before this suit was filed, it appears that the defendant was not very successful in business. He met with vicissitudes to which commercial activity is exposed.

Motions by defendant:

Three motions were filed in this court:

One to dismiss the case of the Arcadia Cotton Oil Mill for want of jurisdiction, together with an application to have the case transferred to the circuit court.

This ground for dismissing the appeal has already been decided. It came up twice in the way that the record was made up, which has led to noting it here again.

The point presented for dismissing the case has already been considered and decided above. The Arcadia Cotton Oil Case was transferred.

The second motion to dismiss the appeal was presented on the ground that the transcript of appeal is incomplete; that documents were not copied in the transcript that should have been copied, and others are copied that should not have been copied; further that the index is in many respects incorrect.

The last or third motion was to have the judgment remanded on the main demand reduced.

This last motion or ground will be considered in due time.

We take up the ground of incompleteness of the record, the second of appellee’s grounds above noted.

There is some cause for complaint.

The record is not as complete as it should be. None the less, we have carefully examined the documents, and have arrived at the conclusion that the issues can be decided ; that there is sufficient of the pleadings and the evidence before us to enable us to render judgment. If it should be shown on the rehearing that error has been committed owing to its incompleteness, it will then be time enough to order the ease to be remanded.

We found no difficulty in arriving at the conclusion that the defendant’s counsel states in the brief that it is not possible to determine whether the seizure had ever been reduced in the present condition of the record. This relates to the property attached and seized.

It appears that a motion was made by defendant to reduce this seizure. An appraisement was made of the property seized and attached; but it nowhere appears that the seizure was reduced, though the appraisement was made for that purpose.

The seizure was not reduced as excessive, for the defendant, eight months after the attachment had been levied, furnished bond to obtain possession of the property. It is not mentioned in the appraisement, nor in the bond, that the seizure had been reduced. It •does not appear that the court ordered that the property seized be reduced as excessive.

From the foregoing it is evident that, in so far as the complaint of defendant just stated goes, it affords no ground for dismissal, because the record is not prejudicially incomplete as to him.

Again, the defendant urged that the papers of a suit before the justice of the peace court are not in evidence.

It appears that sufficient of the papers had been copied to show that the defendant in that suit in answer pleaded in reconvention In the sum of $100, which the plaintiffs claim operates to conclude or estop the defendant from claiming over that sum for damages in the present suit.

The defendant is not estopped nor concluded; for he alleged that he was entitled to larger damages, and reserved the right in his answer to claim them in a court of competent jurisdiction. Here, again, it is evident that the defendant is not prejudiced by the absence of the copies of the papers of the •suit before mentioned.

And, again, in the plea in bar the defendant urged that it cannot very well be sustained without other documents offered in evidence.

The bearing of the missing papers on the plea in bar is not shown.

We may as well state here that as relates to res judicata, urged in the plea in bar just mentioned, we are not inclined to give to the judgment of the federal court, dismissing the proceedings in bankruptcy in that court, the effect of res judicata.

The record disclosed that, after a writ of attachment had been issued in the Arcadia Cotton Oil Company Case against Fisher, creditors instituted involuntary bankruptcy proceedings against him in the federal court. A receiver was appointed. Fisher, the defendant filed answer, and alleged his solvency. Upon showing made by him, he was found solvent, and the proceedings in bankruptcy were dismissed.

The judgment of the federal court did not pass upon any of the facts now here at issue, except the one fact of insolvency. That he (Fisher) was solvent is not of itself a reason why a writ of attachment should not have issued against him; so as to that one question, even if it proves that he was solvent when the attachment issued, it would not have the effect of defeating it.

Insolvency of the debtor is not a sine qua non. 3 Am. & Efng. Ency. of Law (2d Ed.) pp. 201, 202.

The issue here is: Did the defendant intend to fraudulently do away with this property?

The judgment of the federal court does not pass upon the facts bearing upon the issues of the case here. Even if all the papers were before us mentioned by defendant’s counsel, they would not change the conclusion above expressed.

Moreover, we have determined to dissolve and set aside the attachment for reasons hereafter stated, so that from any point the missing document is not on that account cause to dismiss.

For that reason, we must decline to dismiss the appeal on the ground of missing documents. The motion to dismiss is overruled. Before leaving this point, we state that, after the proceeding in bankruptcy before the federal court had been dismissed, the Arcadia Oil Company sued out a writ of attachment in the suit, the title of which is given above, and a short time thereafter plaintiff, Silbernagel Company, sued out tbeir attachment.

On the Merits.

Years back — in the 80’s — defendant kept a store in Avoyelles. He failed in business. The circumstances attending his failure were not shown nor any act proven showing that a wrong was committed. We are informed that he failed in business, and that is all. He left the parish, and afterward engaged in business in the northern part of the state, and succeeded in gaining the confidence of a number of merchants who were willing to trust him. After some years, he again fell behind in business. He sought a respite from the court which was granted, but did not meet his obligations promptly under the terns of the respite. Creditors took steps to force him into insolvency. He succeeded in obtaining a compromise at 10 cents on the dollar and upwards, and obtained relief from his financial strait. He succeeded in re-establishing himself in business. Local merchants who commanded capital credited him. Some of the larger firms of Shreveport sold him goods and merchandise, thereby assisting him in carrying on his business as a merchant in one of the smaller towns or villages.

Several of the members of these firms who testified were not favorably impressed with the condition of his business soon after. They spoke of his dilatoriness in settling, and declined to continue business with him. He at about that time entered into negotiations with the plaintiff firm, Silbernagel & Co. The result was that he and the firm entered into an agreement in which plaintiffs bound themselves to make him an advance of $5,000, and defendant, on the other band, bound himself to ship them the cotton that he would buy within the year 1905.

That year, 1905, was not favorable. The cotton crop was short. A number of merchants were embarrassed in their business in consequence as well as planters. They were aided and carried over to another year — to-use the words frequently used by merchants- and planters.

The defendant, Eisher, was not, it seems, so-fortunate. Those who had advanced him showed no disposition to carry him for another year.

We have just mentioned that he had bound himself to ship the cotton he would buy to-the plaintiff firm; but, instead of so doing, he shipped to other firms, diverted his cotton away, and did not in that respect follow the-terms of his contract. When reminded by plaintiffs of his agreement, instead of showing a disposition to carry out his contract,, his conduct aggravated the situation. He was called upon by one of the employSs fora statement setting forth the condition of his business. This he at first refused to give. He changed his mind, however, and dictated a statement to the willing and perhaps zealous clerk of plaintiffs. At his instance, the dictated statement was handed to him by the clerk, and he subsequently refused to hand it back to the clerk.

He at about the end of the year (1905) conceived the idea of selling some of the goods-in his store at public auction.

Such a course on the part of the owners of a store in which goods are not usually sold at auction would cause inquiry anywhere, particularly in a small place in the country. It was something to give rise to the concern of creditors, and to influence them to call on-attorneys to institute proceedings.

The record, furthermore, disclosed that he-had some 10 or 11 mules that he shipped to-a small town in Mississippi to be sold for. cash. This shipment of mules by defendant excited some attention.

In accounting for his act in thus sending them away, he gave an account for the demand for mules and horses at the place to-which he had sent them, and mentioned the name of a man as authority for the statement that fair prices could be obtained for them.

This man, defendant’s informant, so defendant said, afterward became a witness in the ease, and denied that he had ever made the statement.

Defendant was heard to make remarks •about his intentions in regard to his business. He was at the time riding on a train. He was overheard. His remark was interpreted as an expression of his intention to protect himself from the successful pursuit of his creditors.

He gave mortgages on his property to asserted creditors. One of these mortgages was to his brother and the other to his nephew. This giving mortgages doubtless added to the suspicion already felt by his creditors that he was attempting to protect himself from the pursuit of his creditors.

On another occasion, after close dunning by plaintiff, he consented to part with a few hundred dollars.

Without entering particularly into details, the payment of the few hundred dollars was made under rather peculiar circumstances, not such as to inspire confidence. We will stop long enough to state in regard to this payment that plaintiffs through their employs sought to obtain a consignment of some cotton which he had. This was consented to, provided plaintiffs would bind themselves to let him have $800 of the proceeds. The cotton was shipped, but the defendant held on to it, and would not surrender it until the amount in question had been paid. The cotton was sold by plaintiffs, and brought a few hundred dollars, which went toward the credit of defendant’s account.

It was extraordinary that defendant should insist upon terms to deliver cotton which he had bound himself to ship.

Again, the attorney of the Arcadia Cotton Oil Company called on the defendant for a payment of a claim due that mill. When told by the attorney that he was selling his property and executing mortgages without paying his debts, his reply was that he was doing these things in order to pay his creditors; but, when the attorney asked him for something on account from the pro rata intended from these proceeds of sales and mortgages for creditors, he met with defendant’s flat refusal.

Defendant insisted always, and some of his witnesses testified, that his purpose in selling and mortgaging his property was to pay his creditors.

This must have had some influence on the jury, for they returned a verdict in his favor for a large amount of damages, to wit, $25,-000.

The testimony upon the subject did not convince the trial judge. After the verdict had been rendered, a motion for a new trial was made. The judge mildly expressed his disapproval of the verdict as follows:

“I stated the reasons for not granting the rehearing. [They] are these: If this was a court of last resort in these cases, J would not hesitate to grant the new trial asked for; but thinking likely that another jury would render as unsatisfactory a verdict against plaintiff as this is, and the cause having to go to the Supreme Court for settlement, the same having been tried and all the evidence having been taken that was necessary in the case, and feeling that the Supreme Court will correct any errors made by the jury in these cases as to the excessive damages and any other errors, and knowing it would finally have to go there, the new trial is overruled.”

In reference to the disposition of the property defendant’s conduct was one sufficient to sustain an attachment against him. For less cause, some attachments have been maintained. Here there is a series of causes, and, while some of them may have been explained away, others were not.

Although the court determined to dissolve the attachment, the foregoing facts were considered mainly, because they have bearing on the question of damages claimed by defendant (in reconvention).

The decisions upon the subject afford some light.

In one case the debtor declined to carry out 'his contract to completion, and threatened to dispose of the property under facts and •circumstances stated. It was held it came within the law applicable to fraudulent intent, and justified an attachment. Oil Company v. Matheson, 48 La. Ann. 1321, 20 South. 713.

In another case it was decided that the evi■dence did not justify a dissolution of the attachment, as it showed the debtor intended to dispose of his property. Wetherow v. Croslin, 24 La. Ann. 128.

The court says in part in another case all his conduct gave just cause for alarm. Boyd v. Labranche, 35 La. Ann. 287.

And, again, defendant’s conduct is unjustifiable. 48 La. Ann. 1321, 20 South. 713. While there were grounds for attachment for reasons hereafter stated, attachment should not have been sued for by plaintiffs.

We leave this branch of the case to take up another relating to the amount due' by •defendant to plaintiff. The total is made up as follows: Pour notes at $3,150.86; open account, ,$1,570.17. Total, $4,721.03, and interest on $1,000 from December 1, 1905, on $1,000 from November 1, 1905, and on $1,000 from October 1, 1905 — on each at 8 per cent. — and fee of attorney.

The verdict and judgment will have to be amended by reducing the amount of the last-mentioned sum, with 8 per cent, interest thereon, on $3,000 from the respective dates on which each note became due and exigible for said amount, and 5 per cent, interest on $1,570.17 from the date of the advance.

Plaintiffs had a right to bring suit for the pledged nóte and to recover amount thereon actually due. Insurance Co. v. Johnson, 117 La. 880, 42 South. 357; Rev. Civ. Code, art. 3170; Chaffe v. Whitfield, 40 La. Ann. 631, 4 South. 563; Mechanics’ & Traders’ Ins. Co. v. Lozano, 39 La. Ann. 321, 1 South. 608.

Having fixed the amount to which plaintiffs have a right, we will now fix the value of the property mortgaged. It is not always an easy matter to determine the value to be given to property. Experts differ, and it is only when it is evident that property, because of its revenues or for any other reason, has a value that a value can be approximately established. Here there is a great divergence in the estimate. We have concluded that the property mortgaged was worth about the amount due to plaintiffs. This conclusion is reached after deliberation. We are not of the opinion that further evidence will throw any light upon the subject.

Now, as relates to the amount of damages claimed by defendant, and which have been allowed by the jury: In our opinion it is excessive, and out of all reason. We cannot conceive for a moment under the facts and circumstances that defendant was damaged as he claims, or, at any rate, that he was damaged in a manner which gave him a right to recover a large amount of damages. It seems to us that in one sense the maxim, “Volenti non fit injuria,” applies to him. He does not appear to have sought to minimize the damages. Moreover, the attachment was rescinded in order of date.

Returning to the plaintiffs as relates to the attachment before referred to: The plaintiffs, being substantially secured by mortgage as to their claim, should not have obtained a writ of attachment. We have not found, however, that they acted in bad faith. It was an error in judgment.

Considering everything connected with the case, the amount must be limited to $1,000 in reeonvention for all damages.

Eor reasons stated, it is ordered, adjudged, and decreed that the judgment of the district court is amended by reducing the amount of the judgment from $5,000 to the sum of $4,721.03, with interest as before mentioned, and 10 per cent, attorney’s fee on the last-stated amount.

It is further ordered, adjudged, and decreed that the judgment appealed from as relates to defendant be, and' the same is hereby, amended by reducing the amount of damages to the sum of $1,000, with 5 per cent, interest thereon from the date of this judgment.

. It is 'further ordered, adjudged, and decreed that the writ of attachment is dissolved at the cost of plaintiffs, appellants, in the district court.

The defendant and appellee is condemned to pay the cost of the trial of the main demand in the district court.

The costs of appeal are divided equally. Each is condemned to pay half of the costs.  