
    Charles F. Claiborne, Judge.
    SUCCESSION OF EMMA WILLIAMS MARTIN and P. J. FLANAGAN vs LAND DEVELOPMENT CO.
    Nos. 8282 and 8464 Consolidated
    June 19th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

The Succession of Emma Williams Martin nas opened in 2EEe Civil District Court, ’under the No. 105,354, and was allotted to Division E. P. J. Flanagan was appointed Administrator.

Flanagan brought suit against the Land Development' Company.to annul a tax sale of certain property owned by Etana Williams. This suit was allotted to División A of the Civil District Court and bore No. 105,440. There tos a judgment in favor of the Succession of Williams annulling the tax sale, and in favor of the Land Development Co. against the Succession of. Williams, for the price paid by the Company at the tax sale and for all other taxes paid by it. See 145 La. 843. This judgment tos recorded in the District Court, and by consent, a rule was made absolute on November 7th, 1919 ordering

"execution to issue in favor of defendant (the Land Development CompanY) for each and all of said items of taxes, interest, and costs".

Under this judgment the property recovered by the Sue- . cession of Williams was sold under a Fi.Fa. issued November 17th, 1919, The price of sale' tos insufficient to satisfy the writ, leaving a balance unpaid of $171.73.

Thereafter Flanagan, Administrator, filed suit against the Land Company to recover from it the rents and revenues of the property collected by the Land Development. Company during its possession of the property alleged to amount to $2,970.00, bearing No. 131,319 Division®, The Land. Company then issued an alias Fi.Fa-. and caused to be seized all the rights, title and interest of the Succession in the suit agai.nst it above mentioned.

On May 31st, 1920 by order of the Judge of Division A, the suit of Flanagan vs Land Co. No. 105,440 was transferred to, and consolidated with, the Succession of Suma Williams No. 105, 354 Division E, on an ex parte application of the Administrator of said- Succession.

I.On June 25th, 1920,the Judge of Division A rescinded the above order.

From this judgment the Succession appealed on November 15th, 1921.

II On June 29th, 1920, the Succession filed in No. 105.440, Division A, a rule to set aside the seizure of its suit against the Land Company, No. 131,319, on the ground

"that the issuance of a writ of Fi.Fa. on an ordinary judgment against a Succession is illegal, null, and void".

The Land Company excepted that the proceeding by rule was not authorized by law,' and that the judgment heretofore rendered on November 7th, 1919 ordering the execution of the Judgment of the Supreme Court was res judicata.

The Court by judgnent rendered July 19th, 1920 maintained the exception of res judicata and dismissed the rule. From this judgnent the Succession appealed on November 15th, 1921.

III. On March 18th, 1921, the Succession filed in No. 105.440, Division E, a petition praying for a judgnent adjoining the Land Company from prodeeding under the alias Fi. Fa. issued from Division A to sell the rights, title, and interest of the Succession in its suit No. 131,319 against the Land Company. A preliminary writ was issued as prayed for. The Land Company then took a rule to set aside the injunction on the ground that. Division A alone was seized, of jurisdiction .of the suit of the Succession of Williams vs the Land Company; that it had set aside its order transferring the case 48 Division E, and that therefore Division E had no jurisdiction of the injunction. By judgment rendered April 1st, 1921, the judge of Division E made the rule absolute to the extent of setting aside the preliminary order of injunction rendered March 18th* 1921.

From this judgnent the Succession appealed.

I.

Counsel for appellee argues that no appeal can be taken from an order setting aside a previous order, to transfer a case from one division of the Civil District Court to"another. In this he is right, 34 A. 1216, If the appeal from that or dear, was the only appeal in the case, we would have to dismiss it. But in the same case another judgnent was suDse.quently rendered maintaining an exception of res' judicata, and di smi'ssing-.plaintiff's suit. This was a final judgnent ás it was the last one which oould have been rendered in the -casá by^bhej^fstrict Judge. 117 La. 221. Plaintiff appealed from the^judgneno and his appeal carried with it appeals from all previous interr looutory judgnents. 143 La. 480. Shroeder vs Conner Ct. Appeal.

The seizure of plaintiff's suit was made-May 25,1920.' The order to consolidate, was rendered May 31, and cancelled ' June 25, 1920 and signed November. 10th, 192Í. The motion .to set aside the seizure was made June l.stj 1920,

It is settled law that when a Court is seized of jurisdiction. of'a subject mattéá or of property; no other court may assume jurisdiction of the same matter, and that,-.all quesn' ti-ons of amership of-the property, in the control Of-:the Court, or of privileges upon said property.and its proceeds, must-be determined.by the Court.in possession of.the property.

C. P., 126 5 5 provides -tlgats

fWhenever-'a. .corifiLct- of privileges, arises. between'--'different rcr.e'dito,rs,-;;;all.''the suits'and'qiaims bé-' tr#síehxed.tp.the C.qprifbf whose>má#af<í ty-.on-.^hfch' tbe: ^riyflege. b'rr ii tq be:.;;eaeibi'sed, m'a.'-firsf served^n^esbe pfqcess, .otó • definitive bmibutiopf a# sa-i'd-.-Cburt «ball probe# 'ólÉBft.and.fi,'^bts: of, mortgage ftrfty ihgi. tb, theif -f dnK\ aM;::;dighi'ty, ’in a suitenery" •after notifying all parties interested".

Sec. 10 of Rule Vlll of the Rules of the Civil District Court adopted June 22,1915 reads:

"Whenever, by reason.of the institution or pendency of two or more suits, by creditors claiming as against a common debtor, Conflicts may arise as between such creditors, whether as to the validity of their claims, or to the legality of the seizure levied, or as to the Order in which they shall be paid, and there is a common fund, which is the subject of such controversy, all such suits shall be assigned to the division first acquiring jurisdiction quoad such funds".

This section has bee^repeated in the Rules adopted October 15th, 1921,

In the case under consideration,the suit seized is in Division K and so is the Succession to which the fund will belong if realized.

In 10 La. 587 the Court said that the Court of Probates was the proper tribunal to apply to to prevent funds of a succession from being diverted.

As we said in our opinion on the motion to consolidate the two transcripts for the purposes of the appeal, the question involved before both divisions is whether a judgment creditor has the right to issue a iffifa against a succession and seize ther assfets in the hands of the Administrator. It is to the interest of justice that this question should be referred to the judge of one Di vision,> and it is more in-accordance with the rules of &JÍ. law^jjhat the question be decided by the Judge of the Court" having. jurisdiction over the Succession and its property;

II.

We do not think that the exception .of res judicata, should have been sustained. One of the elements of the plea is wanting* The thing demandpd-must be the same. In consenting that execution of the judgment' of the. Supreme'-Court take place and that V&hir.claims ¡?J:--botjj/ parties,, the Administrator of the Succession of Williams cannot be considered as having consented that a suit which he had not then filed should be seized under an alias fifa against the Succession-, or that the order of execution should extend to that asset.. C. C. 2286 (2265).

The right to issue the fifa or to seize the assets of the Succession was never raised nor passed upon. 12 R. 327; 35 A. 298; 38 A. 854; 50 A. 637.

"A decree of res judicata applies only to natters directly adjudicated". 50 A. 637 (640); 116 La. 507; 119 La. 555.— 3 2~ C2-

III.

As we have just decided that the case of Flanagan vs Land Company No. 105,440 Division A was properly transferred to Division E, the judgnent of said Division E setting aside its preliminary injunction must itself, be set aside.

It is therefore ordered that the following judgnents be reversed and annulled, to-wit:

lo The judgnent- of Division A in No. 105,440 entitled Flanagan vs Land Co. rendered June 25th, 1520

2o The judgnent of Division A in same No. 105,44C rendered July 19th, 1920

3o The judgnent of Division E in the Succession of Emma Williams No. 105,354 and Flanagan vs Land Development Co. No. 105,440 rendered April 1st, 1921.

And it is now ordered that the suit of Peter if. Flanagan, Admtor. vs The Land Development Co. No. 105,440 of the Civil District Court, Division A be transferred to Division E of said Court and be consolidated with the Succession of Emma Williams Martin No. 105,354 of the Civil District Court, Division and that these cases be remanded to be tried according to law and to the views herein expressed - the costs of appeal to be paid by the Land Development Company, and costsof the District Court to await the final determination of the suits.

Judgments reversed and cases remanded.

June 19th, 1922/  