
    (126 So. 225)
    No. 30040.
    DODD v. HORAN (BEESON-MOORE STAVE CO., Intervener). In re DODD.
    Nov. 4, 1929.
    On Rehearing Feb. 3, 1930.
    
      R. A. Fraser, of Many, for relator.
    Boone & Boone, of Many, for respondent.
   BRTJNOT, J.

Relator filed a suit against the defendant, J. C. Horan, for $350, alleging the said sum to be due him for services rendered and labor performed in the manufacture of staves and stave bolts. He asserted the laborers’ lien and privilege upon all of the staves and stave bolts manufactured in defendant’s mill during the period of his employment by the defendant, and provisionally seized all staves then on the mill-yards. The Beeson-Moore Stave Company intervened in the suit, denied that plaintiff had a lien or privilege on the property seized, alleged that it was the owner of the property by the purchase of it from defendant, in good faith and without notice of plaintiff’s alleged privilege prior to its seizure. After trial, the district court rendered judgment in favor of the plaintiff and against the defendant for the sum claimed and costs of court, recognized plaintiff’s lien upon the property seized, maintained the seizure, and ordered the seized property sold to satisfy the judgment.

intervener suspensively appealed from the judgment, and the Court of Appeal (121 So. 323) reversed the judgment in so far as it recognized plaintiff’s lien upon the property seized and in so far as it maintained the seizure and ordered the property sold. An application for a rehearing was made, a rehearing was denied (122 So. 140), and relator applied to this court for a writ of review. The writ issued, and the record has been sent up in response thereto.

The record shows that relator was the defendant’s bookkeeper. On the original hearing before the Court of Appeal, counsel for plaintiff and intervener, both in brief and argument, presented to the court as the decisive issue, the question as to whether or not a bookkeeper was a laborer within the meaning of Act 23 of 1912, and, as such, entitled to the laborer’s lien and privilege upon the staves manufactured at his employer’s mill. The Court of Appeal, in an exhaustive and lucid opinion, held that a bookkeeper was not a laborer within the meaning of the act, and its judgment is based upon that conclusion. In the application for a rehearing, the right of the Court of Appeal to pass upon that question is raised, for the first time. In disposing of the application for rehearing, the court said:

“The point raised on application for rehearing was not raised on the original hearing in this court, and we cannot consider it now. ‘It is settled practice of the court not to notice in application for rehearing points which were not made in the argument of the cause.’ Succession of Broom, 14 La. Ann. 67; Allen, Nugent & Co. v. Buisson, 35 La. Ann. 112; Baldwin v. Sheriff et al., 47 La. Ann. 1470, 17 So. 883, * * * Petitpain v. Palmer, 1 Rob. 221.

“Not only that, the very point which counsel says the court had not right to pass upon is the one which counsel on both sides particularly stressed in argument and in brief on the original hearing. It is the recollection of every member of this court that the question whether a bookkeeper is a laborer and has a privilege on the products of a stave mill, under section 1, Act 23 of 1912, was the only point stressed in argument by either counsel.

“Counsel who now says the court had no right to pass on that point, submitted a brief on the original hearing, the syllabus of which is in one paragraph and reads as follows: ‘All managers, mechanics or laborers employed by or working in sawmills, * * * stave and box manufactories, shall have a lien or privilege on all * * * staves, boxes and all material manufactured, * * * for the payment of their salaries or wages; provided that this lien or privilege shall have no effect against bona fide purchasers of the said material, without previous notice. Section 1, Act 23 of 1912; Swain v. Kirkpatrick Lumber Co., 143 La. 30, 78 So. 140, 20 A. L. R. 665.’

“The act (23 of 1912) gives to all managers, mechanics, and laborers employed to do work at stave mills a lien and privilege on staves manufactured at the mill, ‘provided that this lien or privilege shall have no effect against bona fide purchasers of the said material, without previous notice.’

“The two propositions which counsel stressed in his original brief were: First, that plaintiff, a bookkeeper, was a ‘laborer’ and entitled to the privilege; and, second, that intervener was not a purchaser of the staves in good faith and without notice of the lien in favor of plaintiff, and that therefore the staves passed from Horan, the defendant, to intervener burdened with the privilege. So that counsel for appellee came into court and earnestly and ably ■ stressed the point that his client had a privilege on the staves for the reason, as we understand it, that if he had no such privilege, he could have no possible interest in the alleged sale from Horan 'to intervener. We decided that he, had no privilege, and counsel now says the holding is correct. Then what further interest has plaintiff in the ease? The lower court rejected intervener’s demands, holding, as we understand, that Horan is still the owner of the staves. We left the decision on that point undisturbed. Plaintiff, we think, has gotten all to which he is entitled. He seized the staves, mot under attachment or fi. fa., but under an asserted lien and privilege.”

In Succession of Broom, 14 La. Ann. 67, this court said:

“It is the settled practice of the court not to notice in applications for rehearing, points which were not made in the argument of the cause.”

We cite, in this connection, the following: Allen, Nugent & Co. v. Buisson, 35 La. Ann. 113; Baldwin v. Young, 47 La. Ann. 1470, 17 So. 883; Petitpain v. Palmer, On Rehearing, 1 Rob. 221; 3 Cent. Dig. Appeal and Error, § 3242.

We think the judgment of the Court of Appeal is correct. It is therefore decreed that the writ heretofore issued herein be recalled and vacated, and that relator’s application be dismissed at his cost.

O’Niell, C. J., dissents and assigns reasons.

O’NIELL, C. J.

(dissenting). 'It seems to me that the Court of Appeal and the majority of the members of this court have overlooked the fact that the burden was upon the intervener, Becson-Moore Stave Company, to prove its ownership of the staves and stave bolts that were seized by D. D. Dodd; otherwise the stave company had no right to in-termeddle in the suit between Dodd and Hor-an. The district court decided that the in-tervener stave company did not own the staves or stave bolts; and the Court of Appeal affirmed that decision. The Court of Appeal says so in its decree, as quoted in the prevailing opinion rendered in this case, viz.: “The lower court rejected intervener’s demands, holding, as we understand, that Horan is still the owner of the staves. We left the decision on that point undisturbed.” It seems anomalous to me that the Court of Appeal could then decide that Dodd had no lien, or right of seizure, on Horan’s staves and stave bolts. We must bear in mind that Horan did not appeal from the decision of the district court; and, when the Court of Appeal affirmed the ruling that the intervener had no title to the staves or stave bolts, the inter-vener had no other interest whatever in the suit between Dodd and Horan.

The fact that Dodd’s attorneys contended, in their argument before the Court of Appeal, that Dodd had a lien on the staves and stave bolts is a matter of no importance, because, when that argument was made, the Court of Appeal had not yet affirmed the decision that the stave company had no title to the staves or stave bolts; but, when the Court of Appeal did affirm the decision that the stave company did not own the staves or stave bolts, the court had no right to upset the judgment in favor of Dodd and against Hor-an. It was then, and not until then, that Dodd’s attorneys could call the court’s attention to the anomaly of allowing an intervener to intermeddle in a suit between two other persons, in which the intervener had no interest whatever.

On Rehearing.

O’NIELD, C. J.

D. D. Dodd sued J. C. Hor-an, a stave manufacturer, for $350, claimed as the balance of a monthly salary for services rendered in the stave mill. Dodd claimed a lien on the staves manufactured during the term of his employment, and had 63,100 of them provisionally seized, under the provisions of Act 23 of 1912, p. 30. The statute gives to all managers, mechanics, and laborers employed in a sawmill, stave mill, etc., a lien or privilege on the lumber, staves, etc., manufactured in the mill, to secure the payment of. their salaries or wages.

The Beeson-Moore Stave Company intervened and opposed the seizure, claiming that the company had bought the staves from Horan without knowledge of the claim of Dodd, and averring that Dodd was employed only as a bookkeeper by Horan and therefore had no lien on the staves. After trial of the case, the district court found that the stave company had not bought the staves, but had merely advanced money to Horan to enable him to manufacture them; and the court decided that Dodd had a lien on the staves to secure the payment of the $350 due him .on his salary. The court therefore rendered judgment against the stave company, rejecting its intervention and opposition, and gave judgment against Horan and in favor of Dodd for the $350, and recognized Dodd’s lien on the staves and ordered them sold to satisfy the judgment. The stave company appealed from the decision to the Court of Appeal. Horan did not appeal. The Court of Appeal (121 So. 323) decided that Dodd was employed only as bookkeeper at the mill, and therefore had no lien on the staves; hence the court annulled the decree that Dodd had a lien on the staves, and ordered the staves released' from the provisional seizure. The court did not, in terms, either affirm or annul the judgment of the district court rejecting the intervention and opposition of the stave company for want of ownership of the staves.

Dodd' filed' a petition for a reliearing, contending tliat tiie court had affirmed the judgment declaring that the stave company did not own the staves, and that, inasmuch as Horan had not appealed from the judgment against him and in favor of Dodd, for the $350, with recognition' of a'lien on Horan’s staves, the Court of Appeal was without authority to reverse the judgment which the district court had rendex’ed in favor of Dodd and against Horan, and which the stave company was held to have no interest in. The Court of Appeal refused to grant a rehearing (122 So. 140), on the ground that the point raised m the application for a rehearing was not made until the court had decided the ease. In a statement per curiam, giving the reasons for refusing to grant a rehearing, the ■court • said: “The lower court rejected in-tervener’s demands, holding, as we understand, that Horan is still the owner of the staves. We left the decision on that point undisturbed.” Prom that statement it might well be inferred that the Court of Appeal affirmed the judgment rejecting the intervener’s demand,- and holding that Horan was still the owner of the-staves.

Our opinion is that the point made by Dodd in his petition for a rehearing was well founded, if in fact the Court of Appeal affirmed the judgment of the district court rejecting the demand of the stave company, as intervener, and holding that the company was not the owner of the staves. An intervener, or third opponent, claiming ownership of property seized as the property of another person, must prove his ownership and have it judicially established; otherwise he has no interest in complaining of the seizure of the property.

The point which Dodd raised in his petition for a rehearing could not have been raised appropriately until the Court of Appeal, by its silence on the subject, seemed to affirm the decree that the stave company did not own the staves. The appeal of the stave company brought up for decision by the Court of Appeal, first, the question whether the stave company owned the. staves; and, second, if the court should decide that the stave company did own the staves, whether Dodd had a lien on them; and, third, if Dodd did' have a lien on the staves, whether the stave company bought them with or without knowledge of Dodd’s lien. If the Court of Appeal found that the stave company did not own the staves, the judgment condemning Horan to pay Dodd $350, and declaring that Dodd had a lien on the staves to secure the payment of the $350, was not subject to review, because Horan, who was then the only party having an interest in having the judgment reversed, did not appeal from it.

The statement per curiam, in the reasons given by the Court of Appeal for refusing to grant a rehearing, indicate, as we have said, that the court affirmed the decree of the district court that the stave company did not own the staves; but an examination of the original opinion and decree of the Court of Appeal leaves us in doubt as to whether the court deemed it necessary to decide the question whether the stave company had bought the staves from Horan. Except for the statement of the Court of Appeal, in the refusal to grant a rehearing, that the court “left the decision on that point undisturbed,” we would infer from the court’s original opinion and-decree that the only matter which the court decided was that Dodd had no lien on the staves. We have concluded, therefore, to remand the ease to the Court of Appeal, with instructions to decide, if the court has not already decided, whether the judgment of the district court, declaring that the Beeson-Moore Stave Company did not buy the staves from Horan, should he affirmed or reversed. If the court affirms the judgment, or has affirmed it, in that respect, the court should not reverse the judgment condemning Horan to pay Dodd $350 and declaring that Dodd has a lien on the staves to secure the payment thereof; because, in that respect, the judgment of the district court is final if the stave company has no interest in having it reversed.

This case is ordered remanded to the Court of Appeal, with instructions to decide, if the court has not already decided, whether the Beeson-Moore Stave Company, intervener, bought the staves which were seized as the property of J. C. Horan; and the Court of Appeal is instructed further to affirm the judgment of the district court in all respects if the Court of Appeal decides or has decided that the Beeson-Moore Stave Company did not buy the staves from Horan previous to the provisional seizure which was levied at the instance of the plaintiff, D. D. Dodd. The intervener, Beeson-Moore Stave Company, is to pay the costs of the present proceeding in this court; the question of liability for other court costs depends upon the final judgment to be rendered by the Court of Appeal.  