
    No. 516
    First Circuit
    SIMON v. HULSE (LOUISIANA HIGHWAY COMMISSION, Garnishee)
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Refused.)
    (February 3, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Benton & Benton, of Baton Rouge, attor neys for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for intervener, appellant.
   LECHE, J.

Plaintiff obtained a judgment against defendant, in the district court sitting in and for the parish of St. Charles, May 7, 1929. In execution of that judgment, plaintiff then obtained garnishment process in the district court sitting in and for the parish of East Baton Rouge on May 20, 1929. The process was issued against the Louisiana Highway Commission, and citation and interrogatories were served on the garnishee on May 21, 1929. The garnishee answered the interrogatories within the delay fixed by lav/, and its answer is to the effect that it neither holds nor controls any property, any credit, or any right belonging to plaintiff’s debtor, S. T. Hulse. Further answering in detail, garnishee showed that Hulse had in May, 1928, contracted with it to build a highway in the parish of Bienville for an estimated price of $43,651.51; that it had, at the time of service of the interrogatories, paid to Hulse earned sums of money amounting to $25,875.28; that the unearned sums which might become due to Hulse under1 the contract, had been assigned by Hulse to Ardis & Co. of Shreveport, and later to the Union Indemnity Company of New Orleans, the last notice of said assignment dated April 27, 1929, having been received by garnishee previous to the service of interrogatories. Wherefore garnishee again asserted that it owed nothing to defendant S. T. Hulse.

Plaintiff traversed the answers of garnishee and the Union Indemnity Company intervened in the garnishment process in order to protect the rights which it had acquired under the assignment made to ’t by Hulse. So that all who are interested are now parties to this proceeding.

The district court rendered a judgment apparently in favor of plaintiff, but containing conditions depending upon future events, and silent upon the question of liability for costs.

Both the highway commission and the Union Indemnity Company have appealed.

Articles 239, 241, and 246, Code Practice, define as liable to seizure, by garnishment process, property, rights, and credits belonging to the debtor and held by, or under the control of, third persons. The plain language of these articles, and others on the same subject, indicates that such property, rights, and credits must be in existence at the time of service of interrogatories and no reference is made to property, rights, or credits that might, at some future time, come into the possession of, or1 under the control of the garnishee. It is hard to conceive how seizure can be made of things that are not yet in existence. In the case of Humphrey vs. Midkiff, 122 La. 939, 48 So. 331, 20 L. R. A. (N. S.) 912, the court holds unequivocally that property, rights, and credits of the debtor in the hands of third persons must be in. esse before they may he seized under garnishment process. The decision in Fay & Egan Co. vs. Saw & Planing Mills, 50 La. Ann. 205, 23 So. 312, does not controvert that proposition.

Plaintiff does not, in his rule to traverse the answer of garnishee, charge or prove the falsity of the answer, but seems to rely upon his right to seize a credit which may or may not become due to his debtor in the future. It is our opinion that there is no law to sanction such a proceeding.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that the relief prayed for by plaintiff in rule to traverse be denied, and that the garnishee, the Louisiana Highway Commission, be discharged from all liability under this proceeding; all costs of same to be paid by plaintiff.  