
    No. 8347.
    Katz & Barnett vs. W. B. Sorsby. London, Liverpool & Globe Insurance Co., Garnishee.
    To entitle a party to appeal from an interlooutory judgment, the injury need not be irreparable 5 it is sufficient tliat it may become so by a final judgment.
    In garnishment proceedings in execution of a judgment obtained in an attachment suit, tho judgment debtor is not a necessary party to an appeal from a judgment hetw con creditor and garnishee.
    When an* insurance oompany made garnisheo, answering interrogatories, declares that it issued to the judgment debtor, a policy on a stock of goods for a stated amount; that said stock was burnt out, but tbe loss had not been adjusted, tlxe judgment creditor cannot on tho faoe of the answer, obtain a valid judgment ordering tbe company to adj ust the loss within a given delay, or else pay his judgment.
    Tho judgment oreditor has no greater rights than the assured, aud cannot exercise them without previously fulfilling all required conditions precedent.
    APPEAL from the Civil District Court for the Parish of Orleans. Mghtar, J.
    
      Joseph P. Hornor, Francis W. Balter, for Plaintiffs and Appellees :
    1. Where proper and necessary partios have not boen made to an appeal it will be dismissed. 12 L. 271; 13 L, 302 ¡ 12 R, 203; 10 L. 100; 3 R. 430 ; 5 R. 230 ; 12 R. 180 ; 8A. 367;11A, 674; U A, 074; 14 A. 313; 3 R. 140 ; 10 R. 309 ; 4 A. 377; 11 A. 409 ; 3 A. 174; 21 An. 209; 10 A. 78; 18 A. 281 j 10 A. 40; 31 A, 334; 33 A. 484; and 21 A. 735.
    2. A judgment ordering a garnishee to liquidate an indebtedness to the defendant and de. posit tbe amount thereof with tho sheriff within a reasonable delay fixod, or in default to pay tbe amount of tbe judgment of plaintiff, tho indebtedness of garnishee to tho defend, ant being, under bis answers, ovidontly greater than plaintiff’s judgment, is an interloontory Judgment whioh doos not work tbe garnishee irreparable injury, and no appeal lies therefrom. 23 A. 213; 22 A. 138.
    3. Where tbe transoript contains no agreed statement of faots, note of evidenoo, or bill of exceptions, and no assignment of errors has been filed, the appeal should be dismissed. 29 A. 71; 33 An. 350.
    4. If tbe garnishee admits an indebtedness to tho defendant, bat, does not speoify the amount, tbe Court can order him to liquidate tire same within a limite l timo, and p iy ovor to the sheriff suoh amount ns be may find due. 13 An. 212; 12 An. 272; 10 La. 501.
    5. An amonded answer fllod without leave of Court is not to bo considered as part of tile record. 5 La. 80.
    0. An averment that tbe garnishee is "advised that defendant lias assigned bis claim, ” is too vague and indefinite to be entitled to notice. 21 An. 33,
    7, Aot No. 27 of Extra Session of 1877, does not apply to a garnisheo who admits an indebt, edness, and where tbe plaintiff is not seoking to disprove or traverse tbe answers of tbe garnishee.
    
      H. W. Huntington, Horace I) ufour, for Gamislioe and Appellant:
    1. Only persons interested in maintaining the judgment, and in having it remain undisturbed need be made parties to the appeal, 11 A. 186 ; Hon. Dig. p.’263-4; Elder vs. Rogers, 11 A, 606.
    
      % A judgment condemning a gamislioe to pay money, incase ho fails to deposit a specific sum with the sheriff, when he has answered he did not know how much ho owed, is not interlooutory, but final, and an appeal lies therefrom. Wabash and Erie Canal vs. Beers t 1 Black, 54; Philip’s Practice, 75.
    
      3. Where the record enables the Court to decide on the merits, no formal assignment is necessary. The certificate of the clerk showing that the record contains all the proceedings in the suit is sufficient. 15 A. 420; 18 A. 261; 28 A. 115; State vs. Bank of Louisiana, o 3ST. S. 341; 14 La. 368.
    4. Analysis of cases cited by the Court in the decree on the motion to dismiss.
    5. Kone but those interested in maintaining the judgment undisturbed need be made parties to the appeal. 11 A. 606; 6 R. 399; 16 La. 324; 23 A. 260; 16 La. 109; 3 R. 36 ; 5 R. 224; 12 R. 203 ; 8 L. 367; 18 A. 281; 21 A. 209.
    <5. In a suit where the garnishee has been condemned, and has appealed, the original judgment debtor need not be made a patty to the appeal. Elder vs. Rogers, 11 A. 606; Marqueze vs. LoBlanc, 29 A. 203.
    7. Where interrogatories are not traversed, no judgment can bo rendered against a garnishee whose answers show neither an attempt to evade responsibility, nor an acknowledgment of indebtedness.
    8. A judgment must bo in accordance with the pleadings, and responsive to the prayer, and no judgment can grant more relief than is asked. 4 M. 289; 2 K. S. 241; 81ST. S. 469 : Hen. Dig. pp. 731-732; Louque’s Dig. p 338; Bernheim, Baeur & Co. vs. Sorsby, lately decided by Court of Appeals.
    p. Garnishee eannot be held liable, as his answers were not traversed within twenty days. Act 27, Extra Session of 1877; 31 A. 547.
    10. Where there is a condition precedent to recovery, it must be complied with before the party can recover. Drake on Attachment, Sec. 553.
    11. The exact amount due by garnishee must be shown. Drake on Att., Sec. 553; 5 Robinson, 447-
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

The plaintiff, appellee, moves to dismiss this appeal on the following grounds:

1. “That all proper and necessary parties have not been made parties to this appeal, the defendant not having been made a party hereto.”

2. “That no appeal lies from such a judgment as that attempted to be appealed from, said judgment being an interlocutory one, which does not work irreparable injury.”

3. “ That there is no note of evidence, bill of exception, or assignment of errors of record, and, therefore, the appeal must be dismissed.”

The first ground urged is the only one which calls for our consideration. The second ground is disposed of by the authorities in 6 La. 435; 2 R. 342; 12 L. 149; 11 R. 160; 12 A. 455; 7 R. 232, in which it has been held and reaffirmed, that to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury he absolutely irreparable. It suffices that it may become irreparable by the final judgment or action of the Supreme Court on that judgment.

The objection that there is no note of evidence, bill of exceptions or assignment of errors of record, does not justify the dismissal of the appeal herein sought.

The certificate of the clerk is full and complete, and there is no suggestion of diminution. The record would enable the Supreme Court to decide on the merits. 15 A. 420; 18 A. 261; 5 N. S. 341; 14 L. 368.

The first ground, however, is serious, and the failure to make the defendant a party to the appeal, in our opinion, is fatal.

The rule that all parties to a judgment must be made parties to the appeal, is only deviated from in case of merely nominal parties without interest. 3 A. 317,

It has been held, in 3 A. 623, that, where plaiutiff in execution obtains judgment against a garnishee, from the judgment against whom defendant appeals, the garnishee must be made a party to the appeal, or it will be dismissed. Being interested in the judgment, it can neither be affirmed nor reversed without giving him an opportunity of being heard. So in an attachment suit begun by garnishment, plaintiff, in appealing from a judgment of dismissal, must make the garnishees parties. See also, 14 A. 219. We think the rule thus laid down, may, with equal force, be applied to the present case, 12 A. 801.

In this instance the appeal was granted on petition, and there was a prayer for the citation only of the plaintiff. No citation issued to the defendant, nor has he made any appearance in this appeal.

That he is interested in the judgment seems to us apparent and incontrovertible. In the original attachment suit a judgment was obtained against him serving as the basis or measure of the judgment against the garnishee, and whether that obtained against the latter is final or interlocutory,, and working irreparable injury, is immaterial, as he must have the opportunity of being heard,” in a matter in whichlie is surely interested to the extent of the funds belonging to him in the hands of the garnishee, which are sought to be applied to the extinguishment of the debt claimed in the suit.

See Louque’s Digest, title appeal, Y. p. 43, (b. I, no. I, and authorities there cited). Also, 16 A. 40.

The-motion to dismiss must prevail, and it-is, therefore, ordered that the appeal herein be dismissed at the costs of appellant.

On Rehearing.

Fenner, J.

We are convinced of error in our former decree hereiu, in holding that the defendant, Sorsby, was a necessary party to this-appeal.

It seems well settled, that in proceedings by garnishment in execution of judgments, the judgment debtor is not a necessary party to an appeal from a judgment between the creditor and garnishee. Elder vs. Rogers, 11 A. 606; Marqueze vs. Leblanc, 29 A. 203,

Tlie, present ease cannot be distinguished in principle. The proceeding, it is true, was by attachment, and not originally in execution of judgment, but it was only after it had culminated in a final judgment against the defendant, with privilege on the property attached, and only in execution of that judgment, that the rule on the garnishee was taken, from the judgment on which the present appeal is prosecuted. That the defendant was not a necessary party to the rule, is apparent from the fact that the plaintiff did not make him a party. How, then, can the plaintiff be heard to set up that he was a necessary party to an appeal from the judgment on such rule %

Our former decree herein is, therefore, annulled and set aside, and it is now ordered that the motion to dismiss this appeal be denied.

On the Merits.

Bermudez, C. J.

The question to be decided in this case relates to the liability of a garnishee, answering interrogatories, under an attachment process.

The plaintiffs seek to hold the London, Liverpool & Globe Insurance Company responsible for the judgment rendered against the defendant, on the face of the answer made by it,- and which is to the effect, that: the defendant was insured in said Company for $5,000, on stock of goods; that he was burnt out, but as loss has not been adjusted, Respondent is unable to say what will be found due him. Defendants’ interest in aforesaid policy was seized,” etc.

The rule taken was filed more than two months after the answers of the garnishee had been part of record in the attachment proceedings.

It does not appear that any issue was joined on the rule, or that any evidence was introduced on the trial. There was judgment ordering the garnishee to liquidate the amount of the loss and deposit the same with the sheriff, within ten days, or in default, that it be condemned to pay the amount of plaintiffs’ judgment.

From this judgment the garnishee appealed.

It is clear that by its answer, the garnishee did not admit owing the defendant any specific sum of money. Had it done so, and had the plaintiffs been satisfied with the answer, their remedy would have simply been to obtain an order directing the payment of the money into the hands of the sheriff, who would have receipted therefor.

The garnishee merely admitted that the defendant might have a claim against it, but that it had not been adjusted, as yet.

As the attaching plaintiff can acquire no other or greater rights against the garnishee than the defendant, it follows that, though the garnishee be indebted to the defendant, yet if there be anything to be done, as a condition precedent, to his recovering his debt in an action against the garnishee, the plaintiff cannot obtain judgment, against the garnishee without performing the condition. It is not enough to charge the garnishee that he owes something to the defendant. The amount owing must be shown. Drake on Attachments, Sec. 553. '

The record does not establish that the judgment creditor lias proved any of the facts which it would have been incumbent on the insured to have alleged and proved, previous to a recovery. There is not even an allegation of liability, for any. specific amount, on the part of the Company to the insured. Even if the answer of the garnishee, apparently adopted by the rule, could be considered as part of it, the amount of the loss sustained, and therefore due to the insured, not having been admitted by the Company, no order to liquidate, no money judgment could have been rendered against it, as was done. It may still well be, that in a proper proceeding to hold it liable under the policy, the Company may have some valid, exonerating defense to set up, which it was not hound to interpose on the rule in this ease.

In the absence of any issue joined and of evidence introduced, the defense must he considered as having been one of no cause of action. This view of the case dispenses us from determining whether or not the rule was seasonably taken. Act 27, E. S. 1877; 5 R. 447; 16 A. 253; 31 A. 548.

Whatever may be the rights of the judgment creditors under the garnishment proceeding, the same remain unimpaired, in the condition in which they stood at the date of the seizure.

It is, therefore, ordered and decreed, that the judgment appealed from he reversed, and that the rule therein rendered be dismissed, with costs, in both Courts.  