TERRY vs. TERRY ET AL., 10 La. 68

Mathews, J., delivered the opinion of the court. In this case, the plaintiff claims a privilege as vendor of a boat which was used on the lake Pontchartrain, in trade between New-Orleans and various places situated on the other side of the lake. The judgment of the court below was against his claim, from which he appealed. It apears that the price of the boat was the subject matter of dispute, the thing itself having been sold by the marshal of the City Court, to satisfy several judgments which had been obtained by persons who navigated the vessel.

Whilst the price was still in the hands of that officer, a person named Bowman applied to that court for an order of sequestration of it, and claimed the sum of two hundred and ninety-six dollars and thirteen cents, as a privileged creditor, for supplies of provisions and other articles furnished to the boat, and sums to which he had acquired a right by purchase from other privileged creditors. He obtained the provisional order of sequestration, &c.

While matters, were in this situation, the plaintiff made the claim as above stated, amounting to five hundred dollars, a sum above the jurisdiction of the City Court; and made parties to this suit, or attempted to make them, his vendee and Bowman, who had obtained the order of sequestration in the court of limited jurisdiction. No service of citation was made on the vendee, who is stated to have been absent from the state, nor was a curator ad litem or ad hoc regularly appointed for him. The court below dismissed the suit as to this party, and we think properly.

The order of sequestration which the plaintiff had obtained in the District Court being a mere cautionary measure, could n0£ the effect of an attachment,' so as to bring the cause before the court, as between this defendant and the plaintiff, in such manner as to give jurisdiction; nor could the service of citation made on the attorney at law, appointed to defend him, have this effect. The case then rested on 7 the different claims of privilege set up by the remaining parties.

A plea to the jurisdiction of the District Court was hleh 011 Part the defendant, based on several grounds, one of which was that their proceeding interfered illegally with the separate and exclusive judicial functions of the City Court. Where the vented bySPthe SainT from going before ' a jurisdiction, to gate Ms rank and privilege with anothor creditor, who was seeking a,*lprmfege'Vlfí gainst the common debtor, m said court: Held, pe^Hs^dversa-ry to come into a higher court, to litigate their claims.

The judge a quo, in his opinion by which he retained cognizance of the case, investigated thoroughly these 8TOUnch, and we are of opinion arrived at a correct con-elusion. The plaintiff could not go into the court of limited jurisdiction, and it would have amounted, to a denial of justice> if he were not permitted to bring his adversary into the higher court, to litigate on the subject of their privileges, ... , , r , notwithstanding the judgment rendered m this matter m the inferior tribunal.

Thé judgment by which the defendant was condemned to pay a certain sum, would remain ... , . ,. untouched, whilst its accessory, the privilege allowed, remained a proper subject of litigation before the District Court: otherwise, our jurisprudence would present the f * r absurdity of a wrong without remedy, or a denial of justice jn a matter clearly cognizable before our courts of judicature. The reasoning and conclusions of the court below, have relieved us from the trouble of examining the difficult and too often perplexed question relating to a conflict of jurisdictions, as we are satisfied with both.

But the question of privileges, perhaps not less vexatious and difficult of solution, in spite of the attempt of the compilers of our Code to render this subject plain and simple, must be solved. There are so mauy privileges allowed on the property of debtors, and they are so various in their origin and their classifications so multifarious, that it is often difficult to settle their rank. The counsel for the plaintiff in the present case seems to rely principally on the articles of the Louisiana Code which treat of privileges on ships and merchandise. The

interpretation of these articles as made by the inferior court, denies to his client any privilege ; and the record does not furnish facts by which the conclusion of that court on this head is shown to be erroneous. The boat about which the present dispute is maintained, is moveable property, and if the plaintiff has any privilege on its price, it must result from the provisions of the Code, wherein the privilege of the vendor of such property is established and defined.

The vendor of a vessel or other moveable pro-perfy_ not paid to^privilege on soícTby a forced sale, in a vendeePfor the ^e^a^take^a note and allowed privilege is of inferior rank to that of a oredi-for who has for-mshed supplies to the vessel, We are of opinion, that the plaintiff in the present instance is entitled to the privilege of a vendor, as secured by the

article 3194 of the Louisiana Code; but that it is inferior in rank to that claimed by the defendant.

It is, therefore, ordered, adjudged and decreed, that the . - . ' ° . . judgment of the District Court m relation to this part. of the cause, be avoided, reversed . and annulled ; and it is further ordered, adjudged and decreed, that the marshal of the City Court pay over to the plaintiff and appellant the amount that remains in his hands of the price of the boat in question, after payment of l'aw charges and paying and satisfying the claim of the defendant: the costs of this suit in both courts to be first paid out of the funds in the hands of the marshal.

This judgment not to prejudice the claims of the judgment creditors, under whose judgments the boat was seized and sold. They must be allowed to claim from the marshal the several sums due to them according to the rank of their privileges, compared with those of the vendor and Bowman, and other creditors.