
    No. 13,303.
    The Yun Loy Company vs. James B. Rosser, Jr.
    Syllabus.
    A party who goes into court on a writ of sequestration for the recovery of movable property,'to which he holds a paper title from parties claiming to be the owners, can not be mulcted in damages by parties alleging and claiming an adversary interest therein, notwithstanding the plaintiff is defeated m his action.
    The ease would be different if his title was shown to be either fraudulent or simulated.
    . On Rei-ieaking.
    1. The writ of sequestration is a powerful weapon to use and he who invokes it must be sure of his ground. It is the resort to' a harsh remedy and involves much of risk and peril to the litigant who causes its issuance.
    2. Where wrongfully issued, where not sustainable, or where discontinued by the plaintiff, who had invoked it, after seizure and detention of the property against which directed, damages caused by the seizure will be allowed.
    APPEAL from the Civil District Court, Parish of Orleans — • King, J.
    
    
      A. E. & O. 8. Livaudais for Plaintiffs, Appellants.
    
      George W. Flynn and Percy 8. Benedict for Defendant, Appellee.
    On the rehearing by Blanchard, J.
   The opinion of the court was delivered by

Watkins, J.

This is an action for the recovery of three thousand, five hundred and seventy-five dollars ($3,575.00) as damages against the defendant, resulting from certain alleged wanton, malicious and illegal acts of the defendant in having closed their business by an unlawful seizure and detention of the plaintiffs’ property; and on the trial thereof before the district judge, there was a decree in favor of the defendant, and against the plaintiffs, rejecting their demands.

It is from that judgment that the plaintiffs prosecute this appeal.

The petition alleges as the grounds of their action, that they are engaged in the business of shrimp-fishing, drying and packing business, and for that purpose have erected buildings, sheds and platforms on a certain spot or location in Grand Bayou, near Grand Lake, in the Parish of Jefferson, and have added thereto all the appliances, instruments and tools necessary for the purpose of carrying on their legitimate business, under a license duly granted by State and parochial authority.

. That, on or about the 27th day of January, 1898, the defendant, by virtue of certain judicial proceeding^ by him instituted against one Ah Cun, in a suit entitled James B. Rosser, ,Jr. vs. Ah Cun, in which suit he alleged himself to be the owner of your petitioners’ establishments, prayed that petitioners be ejected as trespassers, caused a writ of sequestration to issue without bond, and acting under said writ, caused the sheriff to seize and take into possession, all of the above described property as his own, and detained the same under seizure from the 9th to the 18th day of February, 1898.

That, through said unlawful interference with, and closing of petititioners’ business during the busy season of the year, they have suffered damages to the extent of twelve hundred and twenty-five dollars — the items of which are particularly specified.

Petitioners aver, that said proceedings were vexatious, malicious, and instituted with the intent to damage your petitioners in their credit, business and reputation.

They further aver, that said James B. Rosser, Jr., who in the suit above referred to, had alleged himself to be the owner of the property seized, and prayed to be sent into possession thereof as owner, subsequently discontinued the same, and instituted another suit against your petitioners, in which he claimed the ownership of one undivided half interest in saicj property, and demanded a partition thereof.

They further aver, that by judgment of the court in the last entitled suit, on the 23rd of July, 1898, same was dismissed at Rosser’s cost— he having proved no title or interest in said property.

They further aver, that notwithstanding said repeated judicial admissions and allegations of the said Rosser, he had caused one Sam Lee, and one Louis Desgouttes, to institute a certain suit in the Civil District Court of the Parish of Orleans, in which the plaintiffs allege themselves to be partners in petitioners’ company, and therein prayed for a liquidation thereof, and have caused another writ of sequestration to issue on bond subscribed by J. B. Rosser.

That said last mentioned suit has been since dismissed, for the want of jurisdiction territorially.

It is upon these different judicial proceedings that plaintiffs rely in making the allegations that the defendant has been guilty of certain wanton, malicious and illegal acts, entitling them to judgment against him in damages.

In his answer, the defendant denies that he has caused the petitioners any damages, or that there has been any unlawful interference witli tlieir business. He denies that any of the judicial proceedings referred to were either vexatious, malicious or instituted with the intent to damage petitioners in either their credit, business or reputation.

He avers that his action in the premises was characterized by perfect good faith and the desire to obtain a judicial ascertainment of his legal rights in the possession of his property.

He avers further, that by a notarial act, of date 7th December, 1897, and duly registered in the recorder’s office on the 18th day of February, 1898, he acquired, as he then supposed, the ownership of the shrimp factory in controversy, which consisted of platform, buildings and ¿ippurtenances thereon, known as the Tun Loy Company, and situated on Grand Bayou, now Grank Lake, in the Parish of Jefferson, and that under said belief he undertook, through his agent, to take possession of said property, when he was resisted by several Chinamen, to the respondent unknown, the leader of whom gave the name of Ah Cun.

That, thereupon, he instituted the suit first described, against Ah Cun as a trespasser on the aforesaid property; and that thereafter, upon being apprised of the existence of the Tun Loy Company, and that the members composing same were said to be Sam Lee, Louis A. Desgouttes, Wong Goon and Wong Bing Hong, he discontinued the said suit against Ah Cun and instituted the second suit against Wong' Goon and Wong Bing Hong, praying to be recognized as the owner of one undivided interest in said property, and praying for a partition thereof, according to law — praying for rents and revenues of the property from the date of its purchase.

lie represents that on the trial of said cause, the court held that “the sale of the partnership property to the plaintiff by two of the partners, without the knowledge or consent of the others, was unauthorized, and that such an illegal transfer is, as to the other partners, void, and of no effect.”

He further avers that he then took no further action individually; but that his vendors, Louis A. Desgouttes and Sam Lee, instituted a suit for a liquidation and settlement of the co-partnership known as the Tun Loy Company, in the Civil District Court for the Parish of Orleans; and that said suit was subsequently dismissed by the court upon a plea to the jurisdiction tendered by the defendant.

The respondent, assuming the character of plaintiff in reconventiom, avers, that said Sam Lee and Louis A. Desgouttes were and are partners of the firm known as the Yun Loy Company, organized and formed by said named parties; and that the action of said plaintiffs in instituting this suit against the respondent, is wicked and malicious, and the same is brought for the purpose of injuring and damaging- respondent, and that respondent has been damaged in the full sum of four thousand, five hundred dollars, for which sum he prays for judgment against the plaintiffs in reconvention and in solido; and that their demands against him be rejected.

Upon these issues, considerable testimony was taken; and the various ’ suits referred to were offered in evidence, and are appended to the transcript.

An examination of the evidence and of these records discloses, that the statements made in reference thereto in the pleadings, are substantially correct; that is to say, in so far as the contents and purport of said records are concerned.

The foundation upon which those various suits are predicated is the reputed act of sale to which the defendant makes reference in his answer, and therefrom we have made the following- extracts, to-wit:

“Personally came and appeared Messrs. Louis A. Desgouttes and Sam Lee, both of full age and residents of this parish (Orleans) who declared, that for the consideration and on the terms and conditions hereinafter set forth, they do, by those presents, grant, bargain, sell, convey, transfer, assign and set over with full guarantee against all troubles, claims, debts, liens, privileges or other encumbrances whatsoever, unto Mr. James Barkley Rosser, Jr., * * * here present, accepting and purchasing- for himself, his heirs and assigns, and acknowledging delivery and posession thereof, the following described property, to-wit:
“The shrimp factory known as the Yun Loy Company, situated on Grand Bayou, near Grand Lake, in the Parish of Jefferson, State of Louisiana, the property consisting of a platform, buildings, sheds, tools and implements of trade, and all the movable property situated therein, or thereon, there being one frame building measuring about sixty by forty-five feet, and another one measuring- about twenty by twenty feet, and a shed and boiler; to have and to hold the property herein conveyed unto said purchaser, his heirs and assigns, forever.
* « # * * * • *
“This sale is made and accepted for and in consideration of the price and sum of one thousand dollars ($1,000.00), which has been settled for in the following manner, to-wit:
“The sum of four hundred dollars cash in current money, paid by the said purchaser at the execution of these presents, and in the presence of the undersigned notary and witnesses to the said vendors, who hereby acknowledge the receipt thereof, and grant full acquittance and discharge therefor, the balance of said purchase price, the sum of six hundred dollars, to be paid in cash, current money, on or before the --day of-, 1897.”

Immediately afterwards the following statement is made, to-wit:

“Said purchaser at the execution of these presents has paid the whole amount of the purchase price, to-wit: The sum of one thousand dollars instead of in the manner hereinbefore recited, and which the said vendors, jointly and mutually acknowledge to have reéeived, and grant the said purchaser full discharge and acquittance therefor.”

The foregoing act was passed by a notary in the presence of two witnesses, and signed by the parties. It bears upon its face the appearance of reality, and we understand from the evidence that there is nothing to impeach the validity of same. No claim is made and no proof was adduced of the untruthfulness of the recitals in the act that the purchaser had paid one thousand dollars in cash for the property.

Something, it is true, was said in argument, to the effect, that such a sale was an unusual one, and that it was surprising that a well informed attorney-at-law, residing in New Orleans, would have expended one thousand dollars in the purchase of a shrimp factory in tide water within the Parish of Jefferson, without having visited the property and made himself acquainted with its situation and value. But, in making this statement, we feel satisfied, counsel has assumed more than is justified by the record. To support the plaintiffs’ case, positive proof should have been administered of the unrealty of the transaction, or of its fraudulent and simulated character, to have justified the extravagant claims made as to the plaintiffs’ damages. In the absence of such proof, the defendant was clearlly entitled to go into court with a writ of sequestration for the recovery of the property he had purchased; particularly in view of the statement that his entry and possession thereof had been denied.

That whs the only legal course for him to pursue. He certainly would not have been justified in resorting to force.

Having ascertained, subsequently to the institution of that suit, that there were other parties than his vendors claiming to have an interest in the property, the defendant wisely exercised the discretion of dismissing his suit and instituting a different one, setting up his ownership of an undivided interest therein.

It can not be said with reason or propriety, that the defendant was guilty of any fault in having been summarily turned out of court in that ease by a decree of the judge contradictorily rendered. And, much the same may be said of the suit which was brought in the Parish of Orleans, for the liquidation and settlement of the partnership on behalf of his vendors, in view of the fact that sa. 'e was dismissed by the decree of the court, on the ground that it did not possess jurisdiction thereof, territorially.

Possessing a title which ostensibly conveyed full ownership of the property in controversy, the complaint made by the plaintiffs of the defendant’s action is manifestly groundless.

He certainly had, at least, probable cause for his action; and it can not be said or assumed that he was wholly without right in the premises, notwithstanding the fact that his pretentions had been so frequently defeated.

In our view, we think the defendant has been the greater sufferer of the two; though we are not prepared to say that the claim of either of the parties to damages, is meritorious. This case presents the litigants in the situation of having misunderstood their rights and interests in the premises; and the result of it all is, that they became involved in a troublesome and expensive litigation, by which neither party has been benefitted.

From all that appears in this record, and with due consideration to the litigation between the parties, its surroundings and results, we do not feel authorized to disturb the finding of the district judge who saw and heard the witnesses.

But, in so finding, we do not intend to conclude the right of action of either party for the recovery of actual damages.

Judgment affirmed.

Breaux, J., dissents.

On Rehearing.

Blanchard, J.

A reconsideration of this ease has led to a conclusion different from that first announced.

The judgment of the District Court rejecting- plaintiffs’ demand for damages should not be sustained, but reversed.

Plaintiffs, who are aliens and subjects of the Emporer of China, owned and operated a¡ shrimp-fishing, dirying- and packing establishment on tide water in Louisiana.

Defendant, claiming- ownership, caused a writ of sequestration to issue and under the same the establishment was seized and detained under seizure for ten days.

The suit in which the seizure was effected was not brought against plaintiffs nor against any member of plaintiff’s firm.

It was instituted against a person styled Ah Cun, who, it was alleged, with five or six men in his employ, was trespassing upon the property of the plaintiff (defendant herein).

It was quite likely that the suit was meant to be against the persons who composed the plaintiff company, for it .does not appear that there was any Chinaman about there who rejoiced in the cognomen of “Ah Cun.” The court appreciates the difficulty of arriving at a correct understanding, pronunciation and orthography of the names and surnames of the Celestials who come to America.

But that does not matter. Whether in suing Mr. A. Cun, the plaintiff in that proceeding (defendant here) intended the process to be against one of the members of the present plaintiff company makes no difference. He was equally without right to the harsh remedy he invoked even though the process had been directed against the parties in possession under their proper names.

This is so because defendant himself had no sufficient title as owner to the property, or any part of it. •

He may have thought he had title and, thus, proceeded without malice and upon probable cause. But this can go only to the mitigation 'of damages.

The basis of his claim of ownership Was an act of sale from one Louis A. Desgouttes and one Sam Lee to him of the property in question. He does not seem to have put himself upon sufficient inquiry as to whether or not his vendors had any title to convey, or if they had, whether they could convey in the manner attempted.

Following his purchase he sent his agent out to take possession. This agent found the members of plaintiff- company in possession. They resisted his demand and the suit against Ah Cun followed, with a seizure and dispossession of those who are now plaintiffs.

The latter — by name Wong Goon, Eung Lum, Wong Bing ITong and Wong Chong — appeared in the cause by way of interpleader and exception and averred that they constituted the Tun Loy Company, that their property had been unlawfully seized, that Ah Cun was to them a person unknown, etc. They prayed that the plaintiff in that cause be ordered to show cause on a day named why the writ of sequestration should not be set aside and the suit dismissed. The rule issued fixing a day for the hearing.

On that day the plaintiff (Rosser) appeared and discontinued his suit. This had the effect, of course, of releasing the seizure.

A few days later the same plaintiff filed a suit entitled James B. Rosser, Jr., vs. Wong Goon, et als. In this he averred he was the owner of an undivided half of the same property the whole of which he had sued for in the case against Ah Cun.

He alleged Wong Goon and Wong Bing Hong to be the. owners of the other undivided half, that they werq hostile to him and his interests, that he desired a partition of the common property, that it was not susceptible of division in kind, etc.

He prayed for partition by licitation, for an accounting from his co-owners, for judgment for his share of the profits'of the business, and judicial sequestration of the property.

The judge did not issue the order for the judicial sequestration, but ordered defendants to show cause why it should not issue.

The order was never granted, and upon issue joined, the parties went to trial ¡upon the merits, with the result'that there was judgment in favor of defendants. No appeal was taken.

Later, Louis Desgouttes and Sam Lee, who had sold the property to Rosser, brought suit in the Civil District Court of Orleans Parish, against Wong Goon and Wong Bing Hong, alleging that they (plaintiffs) and the parties named composed the Tun Loy Company and that it was desirable there should be a dissolution and liquidation of the company and settlement between the partners. They prayed accordingly, and for the sequestration of the property and appointment of liquidator.

James B. Rosser, Jr., defendant in the present action, signed the petition in the Desgouttes and Sam Lee suit against Wong Goon and Wong Bing Hong as attorney for plaintiffs, and also became the surety on the sequestration bond for $1000.

A writ of sequestration issued and under it all the property of the Yun Loy Company establishment was seized.

This was in August, 1898. The property was detained under this seizure from that time until December following, when the suit was dismissed ad the plaintiffs’ cost upon exception to the jurisdiction of the court rations personae.

A month later the present action was brought by the Yun Loy Company against Rosser for $3375 damages, claiming to have resulted to the company on account of the several seizures of the property as above described.

For the first seizure — -that taken out in the suit-against Ah Gun —where the property was detained ten days, the sum of $1225 is asked. For the second seizure — -that effected in the suit of Louis Desgouttes and Sam Lee against Woong Goon and Wong Bing Iiong — the sum of $2350 is asked.

As to damages resulting from the first seizure the evidence suffices, we think,' to warrant easily a judgment of $500 against defendant, and that is putting it at a low figure. .

This is for actual damages sustained and contains no estimate for exemplary or punitive damages.

Attorney’s fees, actual expenses incurred, pecuniary loss sustained, etc., enter into this calculation.

Frank & Co. vs. Chaffe & Sons, 34 La. Ann. 1203; Byrne & Co. vs. Gardner & Co., 33 La. Ann. 8; Stetson vs. LeBlanc, 6 La. 266; C. C. 2315; Beckhan vs. Hutchinson, 50 La. Ann. 766.

As to damages resulting from the second seizure, where the property was held in custody for four and a half months, we do not find evidence to justify holding that defendant Rosser instigated the suit brought by Desgouttes and Sam Lee' against Wong Goon and Wong Bing Hong, though he did act as attorney for plaintiff therein and did sign the sequestration bond.

To' succeed in the present action on .that complaint it must be shown that Rosser connived at the bringing of that suit, and that he was actuated by malicious motives and with a desire to injure plaintiffs herein. This is not shown.

Rosser is not sued here as surety on the sequestration bond which he signed it that case. In a proper action against Desgouttes and Sam Lee, as principals, and Rosser, as surety, on the bond for damages suffered by reason of that seizure and long detention of property, it may be that the Yun Loy Company, or the members thereof, might make a showing entitling them to recover.

For these reasons, it is ordered that the former decree of this court be set aside, and it is now adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that plaintiff company do have and recover of the defendant the sum of five Hundred Dollars, with legal interest from judicial demand, in full settlement of all claims for damages growing out of the seizure of the property of the plaintiffs under judicial sequestration which issued at the instance of defendant in the suit instituted by him in the District Court, Parish of Jefferson, entitled James B. Rosser, Jr., vs. Ah Cun.

It is further ordered, etc., that there be judgment in favor of defendant on the demand as brought for damages herein asserted by plaintiff company against defendant, growing out of the seizure of the property of the plaintiff at the suit of Louis Desgouttes and Sam Lee vs. Wong Goon and Wong Bing Hong, No. 57,232 on the docket of the Civil District Court, Parish of Orleans.

It is further ordered," etc., that the reconventional demand of defendant Rosser herein be dismissed, and that he be taxed with all costs of both courts.  