
    No. 7084.
    Martin Lannes et al. vs. Jean Courege et al.
    A depositary has a right to sue for and recover property fraudulently and surréptitiously taken from him.
    One having a joint interest may proceed alone to recover possession from a mere, trespasser.
    An affidavit which verifies the necessary allegations in the petition for writs of sequestration and injunction-, is sufficient to maintain the writs.
    Allegations showing right of possession in the plaintiff and wrongful possession. of defendant, and the fear of plaintiff that defendant will part from the property, are sufficient facts to warrant,a sequestration.
    The fact that defendant has sued on certain promissory notes, and filed them in co.urt as evidence of^the elaimisued.onrwillnofcprevent.the plaintiff, who has a ■ right to tlieir posseSáion, from sequestering thorn.
    The Third District Court for the parish of Orleans has no authority on the application of one party to enjoin another party from prosecuting suits brought by him in-a justice’s court against third persons, and to which the one asking for the injunction is not a party.
    The fraudulent possessor of a note may be enjoined by its legal custodian from using the note as evidence in a suit brought on it by the fraudulent possessor. One who has the right to a separate action for the recovery of property, is not obliged to intervene in a suit between other parties involving the property.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe, J.
    
      Sambola & Ducros for plaintiffs and appellees.
    
      Frank D. Chretien for defendants and appellants.
    The opinion of the court on the original hearing was delivered by Spencer, J., and on the rehearing by Marr, J.
   Spencer, J.

Plaintiffs.allege that they, together with one Jean M. Bertbin, constituted a committee on behalf of an Association of Butch-' ers, doing-business at'-'certain 'public markets in New Orleans, and formed with the view of suppressing private markets by judicial proceedings; that said committee was charged with the duty of collecting money and obtaining notes from the public butchers, for the sole purpose of defraying the expenses of the contemplated judicial proceedings ; that for said purpose they obtained from various butchers their promissory notes (a list of which is annexed to petition), payable in December, 1874, to the order of and indorsed by said Berthin, with the distinct understanding between the makers of said notes and said committee that said notes should not be> paid or used, unless all private markets were effectually and permanently closed prior to their maturity; that petitioners as such committee promised and agreed to surrender to said makers said notes, if said results were not attained ; that the effort to close the private markets failed, and that it is the duty and obligation of petitioners to return said notes to said makers; that said notes, from their dates to December, 1875, remained in the possession of said committee, and in the office and special charge of said J. M. Berthin, in New Orleans, as worthless paper. That one Jean Courege, in December, 1875, and January, 1876, obtained possession, surreptitiously, fraudulently, and without legal right or consideration, of 137 of said notes, aggregating in amount $5100. That he kept private secret possession of said notes until lately, when he entered suits in the Fourth Justice’s Court on thirty-eight of said notes against the makers thereof, alleging himself to be owner thereof, and is seeking by said suits to collect the said notes. They aver their right of possession of said 137 notes, and their duty and obligation as depositaries to restore them to the makers under the said agreement. They therefore bring this suit in the Third District Court, pray that said 137 notes- be sequestered, and restored to their possession ; and that said Courege be enjoined from disposing of any of them, and be enjoined from prosecuting said thirty-eight suits in the Fourth Justice’s Court, and that said Fourth Justice’s Court be also-prohibited and enjoined from proceeding further therein, until the rights-of plaintiffs be determined, etc.

Upon oath and bond, the writs of sequestration and injunction issued as prayed for.

Jean Courege excepted in limine as follows:

1. “ That the said petition discloses no cause or right of action in. the said plaintiffs.

2. “ That the affidavit for the injunction and sequestration therein obtained is not sufficient and not in accordance with law.

3. “ That the allegations in the said petition do not disclose sufficient grounds for an injunction and sequestration.

4. “ As to the thirty-eight notes referred to in plaintiffs’ said petition, and now pending in’suits before the.the Fourth Justice of the-Peace Court, he especially excepts to the above petition for the reasons :

1. “That the court was without authority to enjoin the plaintiff in the prosecution of these suits.

2. “ That the notes could not be sequestered in the hands of the-judge of said court, thus divesting the court of a jurisdiction of which, it was already seized.

3. “ That the right to prosecute a lawsuit, whether well founded or not, is a right guaranteed by article ten of the constitution.

4. “ That if the plaintiffs in the above suits have any interest in the said thirty-eight notes they could have joined either the plaintiff or defendants in the said suits by third opposition and intervention.”

We will notice these exceptions in their order :

First — The petition, if the facts stated are true (and for the purposes of this exception must be so considered), discloses a clear right in. plaintiffs, as depositaries, to recover the possession of property fraudulently and surreptitiously taken from their custody. C. P. 15 ; 10 An. 552 ; 10 M. 465; 4 M. 619 ; 3 L. 216 ; 4 An. 178 ; 7 An. 110 ; 2 N. S. 20 ; 1 An. 48.

The fact that Berthin, one of the committee", does not or will not join them in the demand, does not prevent the others from proceeding to protect themselves from the acts of a spoliator. One having a joint interest may proceed alone to recover possession from a mere trespasser.

Second — The affidavit verifies the facts charged in the petition, and is sufficient to maintain the writs of sequestration and injunction.

Third — -The allegations showing plaintiffs’ right of possession and '.the wrongful possession of defendant, and the fear of petitioners that ■defendant will dispose of the notes, etc., are sufficient to maintain the ¡sequestration, and the injunction, at least and certainly so far as concerns the ninety-nine notes not sued upon in the Fourth Justice’s Court.

Fourth — "We do not see how the fact that defendant had filed thirty-eight of the notes in question in suits by him brought in the Fourth ■Justice’s Court can prevent plaintiffs from asserting their rights of possession thereof and upon proper affidavit and bond sequestering -them. If defendants’ proposition be true, one who has stolen a note ■can retain possession of it by simply suing on it. The sequestration of ■these notes in the Fourth Justice’s Court in no manner interfered with -or divested the jurisdiction of that court in said suits. The notes were not in custodiam legis, in the sense contended for by defendant. The rule invoked by him is that when property is in custody of one court under its process, another court can not by its process interfere with •such custody. There is no doubt of the correctness of this proposition. But these notes were not held under process of the Fourth Justice’s Court. They were at most simply filed therein as the evidence of the .claim sued upon. 'No law required them to be so deposited, being mere ¡acts under private signature. C. P. 175. By simple leave of the court they could be at any time withdrawn by Courege. Hence their sequestration was not only legal but necessary to the preservation of plaintiffs’ rights. The law, C. P. 275, gives the right of sequestration whenever the ownership or possession of a movable is in controversy, upon the claimant.making oath to his fears of its removal, etc. As these notes were not held under process of the justice’s court, we can see no possible objection to their sequestration. Their production, if required in that court as evidence, could always be enforced by subpena duces tecum served upon the sheriff, or the plaintiff, if the latter has bonded them.

¥e agree with the judge a quo, that the plaintiffs can not enjoin the Fourth Justice’s Court from hearing causes pending between the defendant, and other persons. It would lead to infinite confusion to-allow one,court to thus arrest litigation in another court, on the demand of persons not parties in such suits in such other courts.

We do not think that section 2013 of Revised Statutes applies to a. case like this, but is intended to enable the Third District Court to exercise its appellate jurisdiction over justices of the peace in the parish of Orleans. We think, therefore, that so far as plaintiffs seek to enjoin the Fourth Justice’s Court from hearing, and the defendant from prosecuting, his suits, the court a qua properly refused the application. But if it be true, as alleged, that the defendant is a spoliator of said thirty-eight notes, and obtained their possession fraudulently and surreptitiously, and that plaintiffs are entitled to their possession, we think the defendant may well be enjoined and prohibited personally and individually from using said notes as his own or as evidence of a right in himself.

Plaintiffs are not obliged to file interventions or oppositions in said thirty-eight suits. It is not a proper case for third opposition, and nobody is obliged to intervene in a suit; for the simple reason that he who has a right of intervention has a yet more evident right to a separate action.

Defendant’s exceptions should have been overruled, except to the extent stated.

It is therefore ordered and decreed that the judgment appealed from be modified and amended so as to read as follows :

It is ordered and decreed that defendant’s exception to the sufficiency of plaintiffs’ petition, and to their demand for sequestration of the notes in controversy, be overruled. That defendant’s exception to the injunction sued out by plaintiffs be overruled, except in so far as-said injunction prohibits the Fourth Justice’s Court from hearing, and the defendant from prosecuting, said thirty-eight suits — and to that extent only said exception is sustained, and said injunction dissolved. But the right of defendant to prosecute said suits shall not authorize him to make use of said notes as evidence or otherwise, such use being within the prohibitions of the injunction as herein maintained. It is. further decreed that defendant and appellee pay costs of appeal.

Dissenting Opinions.

Egan, J.

In my opinion it is well and properly settled that a writ of sequestration will not lie. to seize-and take any property or thing at the time in custodiam legis, or on file or deposited for use in a suit in another court. The fact that it was not necessary under the law for Courege to file the notes in controversy with the justice does not alter tlie case, as whether necessary or not he did.so file them- as the basis of the several suits and they were in the lawful custody of the justice and could not be taken therefrom by the sheriff under the sequestration in this case, which would have been ineffective without so taking- them. It is true that the notes might have been ■ withdrawn by Courege with leave of the court, but not otherwise, whether filed in that or any other court. It is, however, not the practice or the law that the plaintiff who has filed a private or other writing in any court can take it from the records without leave, and so long as we recognize the jurisdiction of courts, whether justices’ or others, it would be subversive of all law and propriety to permit the process or orders of another court or its officers to disturb the lawful custody of any paper or thing in its keeping. It is not pretended that within the bounds of their authority or jurisdiction the fact that justices’ courts are not courts of record makes any difference in this respect, or that there is'any reason why they should not be respected within the scope of their jurisdiction and authority. I therefore think the sequestration was both illegal and unnecessary, and that the proper remedy was injunction operating directly upon the defendant Courege and directed to him. I do not think that the constitution or the law gives any man a right to sue on the note, or to recover the debt or property of another, who may therefore at any time on proper allegations and proof obtain and maintain an injunction from any court of competent jurisdiction to restrain the defendant from either suing, prosecuting suit upon, or in any other manner using or controlling promissory notes claimed to belong to the plaintiff in injunction, and from collecting and reducing into possession by suit or otherwise the debt evidenced by the note. This was the view taken by us in the case of Brown vs. Brown, decided .at this term, 30 A. I therefore dissent from the decree in this case maintaining the sequestration. On the other branch of the case, the injunction should be maintained as against the defendant personally, not only to the extent decreed, but to the full extent of preventing his making any use whatever of the notes in controversy or interfering with or using them in any manner and for any purpose, whether by suit or otherwise.

DeBlanc, J.

I concur in the views of Mr. Justice Egan as regards the invalidity of the sequestration resorted to by plaintiffs, and — in my opinion' — their injunction is as invalid as their sequestration, in so far as they interfere with the suits already brought in the Justice’s Court.

The relief to which plaintiffs consider that they are entitled, may be granted by, and should have been asked from the court in whose jurisdiction the aforesaid suits are pending. That jurisdiction cannot — legaily — be invaded by the process of another Court, for the manifest purpose of suspending, embarrassing or preventing the trial of an already commenced and progressing litigation.

Had plaintiffs appeared in the Justice’s Court'and there asserted ■their, right..to .the. possession-of >the 38 .nates sued-upon by-defendants, from the date of their demand not one of those notes could have been withdrawn from the files of that court without their consent. Their appearance in that jurisdiction would have secured every advantage which they could hope to gain by an order of sequestration obtained in •another Court.

The Judge who has the undenied jurisdiction of a suit on a note, cannot be ordered by another judge to suspend his proceedings, until the latter ascertain whether the holder of said note is entitled to its possession. That question should be presented to and determined by the Court first seized of jurisdiction, on application of either the sued drawer of the note, or of those from whose possession it was unlawfully taken.

I respectfully dissent from the views and decree of the majority.

On Rehearing.

Mare,- J.

If the allegations of the petition be true, the defendant, •Courege, is attempting to practice a great fraud, through the medium of ■a justice’s court. The defendant chose to put his case in the court below, on exceptions, which necessarily, pro hac vice, admitted the truth of the allegations contained in the petition.

It is urged that plaintiffs could not maintain this action because •Jean Marie Berthin was one of the committee, of which the plaintiffs, eight in number, were members. But it is distinctly charged in the .petition, that “ they, said notes, remained in the possession of said com- , mittee, your petitioners, but in the office and special charge of Berthin . * * * as worthless paper after their maturity.” And again : “ that your petitioners were the only persons entitled to the possession of said notes, and they only as a committee, and to return them to the makers thereof, which duty they now desire to perform.” These allegations, which ■can not be called in question under the exceptions taken by defendant, show a perfect and exclusive right of action in the plaintiffs to recover . possession of the notes ; and to prevent the alleged fraudulent attempt of Courege to enforce them as valid obligations- belonging to him. If the facts are not as thus charged, these distinct allegations must be put at issue by the defendant, as it is his right to do, in an answer to the merits.

If Berthin was a member of the committee, and entitled as such, equally with any one of the other members of the committee, to the possession of the notes, he could not control the other eight members. It was the committee, not one of its members, that was entitled ; and if one should refuse to join the others in a proceeding to recover the possession, he could be made a defendant if he was á necessary party. But under the allegations of the petition for the purposes of the exception, no such question would arise.

It is true that each one of the makers of the 137 notes might, when sued, defend himself; but that is no reason why the committee, entitled to the possession for the purpose of returning them to the respective-makers, should not sue to recover them for that purpose.

A district court would not be authorized, by injunction or other writ, to forbid a justice to hear and determine a case pending before him, and falling within his jurisdiction ; but there are cases in which it is competent for one court, at the instance of one not a party to, but interested in a suit pending in another court, to deal wjith the parties to that suit; and, in aid of its own jurisdiction, to forbid them, by injunction, to proceed with their suit.

There were 137 notes in the possession of Courege; and he might have brought 137 suits against the makers of those notes. It was the ' right of plaintiffs, according to the allegations of their petition, to sue him for the possession of all of them : to sequester such as were in his possession, and to enjoin him from suing on them. It is true that * plaintiffs might have intervened in every one of the suits ; but they were equally entitled to sue and assert their rights in a single and separate suit, in a competent court. Their right was an entirety, the possession of all the notes; and the proof requisite to establish their right to one of them would suffice to establish their right to all of them. It would be a great defect in our jurisprudence if a person not a party to any one of 137 suits brought in a tribunal of inferior jurisdiction, having a right to the custody and possession of the subject matter of all these 137 suits, who could not assert his right in the inferior tribunal in a single action, could not go into a court of competent jurisdiction, and assert it in a single suit; and by the appropriate conservatory process of that court obtain the remedy and relief to which he is entitled.

Our decree does not enjoin the plaintiff from prosecuting his thirty-eight suits in the justice’s court; but it does forbid him to use the notes as evidence in the suits, and for the very good reason that upon the allegations of the petition, the plaintiff in the thirty-eight suits is attempting to make an unlawful use of the notes to the prejudice of the rights of plaintiffs as asserted in their suit in the district court.

The sequestration need not take the notes out of the possession of the justice’s court. They may be sequestered and detained in that court by proper notice served by the sheriff, on the justice, or his clerk : and the justice might well be appointed sheriff’s keeper. If plaintiffs are entitled as they allege they are, to the possession of these notes for the purpose of returning them to the makers, their right would be of no avail if the plaintiff in the justice’s court might withdraw them, and part with, or conceal, or dispose of them: or if he might proceed to judgment against the makers, and enforce it by execution.

Our decree does not invade the jurisdiction of the justice: it deals with a suitor in the justice’s court, not directly in his relations toward the makers of the notes in the pending suits, but in his relations to the plaintiffs in the district court, touching the right to the possession and use of the notes, the subject matter oE the suit in the district court.

It is no infringement of art. ten of the Constitution to say to a suitor, you shall not make any use of property the possession of which you obtained unlawfully, which you hold and detain unlawfully, and which you are attempting to use unlawfully to the prejudice of the right of another who invokes the aid of a competent tribunal to preserve and to enforce that right.

A careful re-examination of this case has but served to convince us that our original decree is correct, and it is therefore affirmed.

Mr. Justice DeBlanc adheres to the opinion expressed by him on the original hearing, and dissents as he then did.  