
    NO. 8296
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. WIDOW HENRY H. TOELKE VERSUS JOHN M. TOELKE
   Dinkelapiel; J«

The facta in this oase are substantially as follows:

Miss Hartara Toelke and Mrs. Margaret Simpson, the Exeoutrixes of the last will end testament of their mother, die late Mrs. Henry Toelke, obtained a judgment against the defendant, John M; Toelke, in the full sum of Five Thousand Four Hundred and Seventy Six and 38/100 Dollars ($5476.38) with legal Interest and oosts.

On this judgment a ftia fi fa was issued and garnishment direoted to the Canal Commercial Trust & Savings Bank.

The answer of the bank admits that on February 38th, 1931, at four P. M. it was served with a- notice of seizure in the above entitled cause; that at the time there was on deposit with said bank to the credit of John M. Toelke, the sum of One Thousand Hine Hundred and Thirty Dollars and Thirty Eight Cents ($1930.38); that at the time of said servioe there was then outstanding in the Clearing House of this City, oheoko drawn on said balance to the following parties to wit: Cheok dated February 36th, 1931 in favor of Paul Eugene for $50,00.

Cheok dated February 38th, 1931 in favor of the Delta Lumber ■^Company for $405.37.

Check dated February 38th', 1931 in favor of P. J. McMahon & Sons Undertaking Company for $7.00.

'Cheok dated February 38th, 1931, in favor of Stauffer EsheSman & Company for $53.40.

Cheok dated February 35th, 1931 in favor of the Estate of R. J. Holzer for $345.00,

Cheok dated February 38th, 1931 in' fa.vor of the Louisiana Glass & Mirror Works for $19.55.

Further answering aver that said cheoks were charged against respondent in the Clearing House on the morning of March 1st, 1931, e.t eight o'clock A. M. and that on account of servioe of the notice aforesaid, respondent has noted the said oheoks as drawn against said acoount and charged to respondent but has refused to pay same until the rights of 8.11 parties shell be decided herein.

Further shows that at eleven fifteen A, M. on Maroh 1st ?.ft“r the action of the Cleaning House aforesaid, that there wee served on respondent a petition and no'tioe of seizure thereunder. Further answering shows that said sum on deposit was subject to e. debt of Five Hundred Dollars due respondent by said Toelke, and respondent had the right to offset the defendant the said debt against the sai</ and in preference to •said seizure.

Further answering finally praye that the above answer may be deemed sufficient and that the several parties mentioned hereinabove may be notified of these proceedings; that the rights of all psrties, including respondent's olaim, as creditor against said fund may be determined end for judgment distributing the same accordingly and for all general and equits-ble relief.

This answer was sworn to and filed,

■ Subsequently on Maroh 14th, 1931, plaintiff through her attorney, alleged that the bank had filed answers admitting a deposit of One Thousand Mine Hundred and Thirty and 38/100 Dollars, by John H. Toelke and that the defense in behalf of sundry parties named by the hank together with the bank itself, should show cause on a day fixed, why the sum admitted to he due should not be.turned over to plaintiffs and the funds placed in the hands of the Civil sheriff to await the further orders of Court.

Subsequently there was filed the petition of intervention and Third opposition by the firm composed of John M. Toelke snd George Eitrnin, who averred that they oomposed a firm or partnership trading under the neme of John U. T&elke; that sold partnership was sgreed to and entered into in the month of February 1919 and has been in existanoe oontinuously sinoe that date and is now in existanoe; further that all of the business of sld firm was conducted under the name of John M. Toelke, including the hank aocount of the funds of the said firm, hills of account end the like, hut that notwithstanding that the said accounts, were carried on in the name of said John M. Toelke, they were the property of said firm.

4 TRat lindar the judgment rendered in ahora numbered and entitled oause against the eald John M. Toelke Individually, in ho manner oonneoted the said firm therewith nor did it grow out of the busiriees- of -said partnership, and that plaintiff has- undertaken to seize by garnishment process, certain funds aggregating the sum of One Thousand Nine Hundred,and Thirty and 38/100 Bollara, belonging to said partnership, deposited in its partnership or trade name in the Oanal Commercial Bank & Trust Company, and the said plaintiff is threatening to oolleot and take possession of said funds -in payment of said judgment and further that the said plaintiff will take possession of said funds and keep same uni unless prohibited from doing so by this Honorable Court; that the plaintiff is not entitled to oolleot any portion of the said funds because the se.id sum' does not belong to the said Toelke but belongs to the partnership existing between the said John JI. Toelke and George Eitmin, trading under the name of John M. Toelke as hereinabove set forth and reiterating that all of said funds are liable for and belong to the partnership, that prior to the attempt of the plaintiff to seize said funds, the said partnership had drawn and issued the following mentioned oheoks, against Said deposit, to the several parties named thereunt» der and they are identically the same names snd amounts as given in answer to the garnishment proceedings of the bank and henoe need not be repeated here.

They further in the 6th article of their intervention state that the firm had borrowed the sum of Five Hundred Dollars from said bank, whloh sum was credited to the said partnership acoount for the partnership business and the sum thus stated should be paid out of said funds.

The praver is that they be permitted to file this petition of intervention and third opposition s.nd that there finally be a judgment decreeing the amount on deposit to be paid to the various parties in the different amounts as sts-ted due them together with the sum of Five Hundred Dollars to the bank, end that the seizure of said funds by plaintiff be annulled and eet aside and deo^ared to be of no validity or effeot.

To this petition for intervention and opposition, ■plaintiff exoepted on- the ground that.said petition die- . olosed no right or oauee of notion.

And in the event this exception.is overruled, answer, that they have nothing on whioh to base a belief to paragraph one of petition for intervention; also that -they have nothing on whioh 'to bese a belief to paragraph two. of-petition for intervention; admitted though to paragraph three, the seizure alleged therein, admitted in paragraph four,- that they will take into their possession the funds seized if súooess'ful in said seizure.

Hot having sufficient information on whioh to base a belief the allegations of paragraphs five and paragraph six were denied.

Then respondents speoially plead estoppel based on the averments contained in said petition and failure’ to reoord names of said agreed partnership.

Finally pray that their exceptions be maintained, petition of intervention and third opposition be dismissed at intervendré1 cost, but in the event said exceptions are overruled then that said answer be deemed a good and sufficient answer and that intervenors1 petition be dismissed s.t their oosts and for general relief.

We áre confronted at the outset on the trial of this oase when witnesses for third opponents were introduced in evldenoe, with the objection of oounself for plaintiff, to the following effeot:

“I object to any testimony in support of the.allegations of the intervention and third opposition herein filed setting up-a partnership, on the ground that verbal testimony cannot be deduoed to prove a partnership, and on the further ground that there is no allegation of the recordation of any artioles of partnership as required by Article 3834 of the Revised Civil Code, by Artioles’ 3836 to 3838 of the Revised Civil Code,; by Aot 64 of I9i8 and by Act 248 of 1918."

The ruling of the judge was "Let ihashiastiist the objeotion go to the effedt."

And throughout the entire testimony as found in this record, end to eroh end every witness offered by third opponents the seme objeotion wes made end the seme ruling had, and we ere satisfied that the Court erred and the objeotion should have been maintained.

Article 2837. Firm Name. The business of this partnership must be conducted in the name of e,ll the persons concerned, unless a firm is adopted by the artioles of partnership reduced to writing and recorded in the manner directed by th“ last article.

Article 2838. Names in Firm Name. If the artioles be recorded, the parties may themselves adopt a firm which shall be composed of the name of one or more of the partners, but no other name than those of the concerned shall enter in suoh firm.

Act No. 64 of the Legislature of 1918, provides!

"That no person or persons shall hereafter carry on or oonduot or transact any business in this State under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless suoh person or persons shall first file in the offloe of the Register of Conveyances, in the City of New Orleans, or the Clerk of Court, as the case may be, of the parish or parishes in whloh suoh person or persons oonduot or transact or intend to oonduot or transact suoh business, a oertlfioate setting forth the name under which said business is, or is to be ponduoted or transaoted, and the true or real full name or names of the persons or persons owning, conducting or transacting the same, with post offloe address or addresses of said -person or persons. Said oertlfioate shall be executed adil&tty.p^ acknowledged before a notary publlo by the p8r»oa'ioí^ííór-'"'í.b sons so oonduoting or intending to. oonduot eiUd lnftSKMWS
And Section 3 provides: "That any person or persons now conducting suoh business under an assumed name or under any suoh designation referred to in Section 1 of this Aot, shall file suoh certificate as hereinbefore prescribed, within sixty days after this Aot shall take affect, and persons hereafter oonduoting or transacting business as aforesaid, shall, before commencing suoh business, file suoh oertifioate in the manner hereinbefore prescribed."

It is contended that under Section four of the Act of the legislature, Just — quoted, whioh reeds: "That this Aot shall in no way affect or apply to any corporation duly organized under the laws of this State, or any corporation organized under the laws of any other State and lawfully doing business in this State, nor shall this Act be deemed or construed to prevent the lawful use of a partnership name or designation, provided, that such partnership name or designation, shall inolude the true real name of et least one of suoh persons transacting ssid business." that this partnership in the name of John II. Toelke was in every vrt.y a compliance with the law. Vie do not so oonstrue the law, but on the contrary, -JHSíano recordation of this partnership h'-ving been filed in the office of the Register of Conveyances of the City of Hew OrleenSjand the real names of the partners composing the partnership and who were conducting the business together not with their designation was/a com.-li''nce with the statutesj and Toelke having held himself out to the world under the lew as the sole owner of whatever business may hove boen conducted, having deposited the funds in the bank to his individual credit, we consider this under the low hie property and his funds, and subject to the seizure in this oeee.

In so far :-s the bank is ooncsrned ¡md its ol-tim of Five Hundred Dollr-rs, under the plain provisions of the oopy of the note offered in evidence, the note not being due at the time these proceedings were instituted, the defendant, T'elke not having .become a bankrupt, no involuntary proceedings filed against him, and not having fsiled -In business, the bank had no legal right or lien and privilege : on the prooeeds in their hands.

For the reasons assigned, it is therefore ordered, adjudged and deoreed that the judgment toendered by the Court aquo in this pase be and the same is hereby reversed, set aside and annulled, and that there now be judgment in favor of plaintiff, Mrs. Widow Henry H. Toelke, represented by her Exeoutrlxee, Mrs Barbara Toelke and Mrs. Margaret Simpson, deoreeing that the money seized in the garnishment proceedings in this oase, amounting to the sum of One Thousand Nine Hundred and Thirty Dollars and Thirty Eight Cents ($1930.38) be paid to plaintiff in this oase, i

-judgment reversed and judgment rendered in favor of olalntiff-  