Opinion
No. 24967.
April 27, 1925. Rehearing Denied May 25, 1925.
Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.
Action by Charles H. Puchen against W.D. Haas Co. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
A.H. Garland, of Ville Platte, for appellant.
W.E. Couvillon, of Marksville, for appellee.
On Motion to Dismiss.
The defendant and appellee moves to dismiss the appeal in this case on the ground that no legal citation of appeal has been served on him.
The indebtedness for which plaintiff sues is alleged to have arisen on February 6, 1919, and "to be a matter connected with the cotton business, or the buying of cotton, conducted by W.D. Haas individually at Bunkie, Avoyelles parish, La., under the old firm name of W.D. Haas Co.," which was dissolved on January 1, 1919, W.D. Haas taking over all of the assets and assuming all of the liabilities of said firm.
Alexandria, La., was the legal domicile of W.D. Haas at the date of the institution of this suit, and of the service of the citation of appeal, as well as the legal domicile of the old firm of W.D. Haas Co. during its continuance.
The citation of appeal is addressed to "W.D. Haas Co., Bunkie, La.," and the return on said citation shows service of a copy of the petition and citation —
"on the defendant herein named, leaving the same at the mercantile establishment in the town of Alexandria, Rapides parish, La., in the hands of W.D. Haas in said establishment, and a person apparently over the age of 14 years, in the employ of the said W.D. Haas Co. as president, whose name and the other facts connected with this service I learned by interrogating the said W.D. Haas, the said W.D. Haas Co. and the individual members thereof being absent from the domicile of the said firm at the time of service."
As no partnership by the firm name of W.D. Haas Co. existed at Alexandria at the date of the institution of this suit, or of the service of the citation of appeal, we shall treat as surplusage the entire return on the citation, except that part which shows that personal service was made on W.D. Haas, at his legal domicile in the parish of Rapides. The service of said citation was also legally made in that parish, as section 1, subd. 12 of Act 179 of 1918, provides that:
"Any person engaged in commercial business may be sued and served in all matters connected with said business in the parish where the business is carried on, even though he may have his legal domicile elsewhere, or at his legal domicile, as desired by the party controlling the suit or process."
The service in this case of citation of appeal at the legal domicile of defendant at Alexandria, was, therefore, duly authorized by said act, and must be held to have been properly made on defendant in said parish.
For the purposes of this suit, W.D. Haas individually and W.D. Haas Co. are one and the same person in legal contemplation, and the issuance of citation to either, and service upon W.D. Haas, meet all the legal requirements of the case.
The motion to dismiss is therefore overruled.
Exception to the Jurisdiction.
This exception is predicated upon the following grounds:
"And now into court comes William D. Haas, made a defendant in the above numbered and entitled cause, as proprietor of the firm of W.D. Haas Co., and alleges that said firm of W.D. Haas Co. was dissolved over two years ago, and has not been in existence since that time, nor was the same at time of the dissolution domiciled in the parish of Avoyelles, but it was domiciled in the parish of Rapides, and that even when the said firm was in existence, the same was not composed of W.D. Haas.
"Avers further that this suit, if intended to be directed against this defendant, W.D. Haas, as sole proprietor of a firm which does not exist, the court is without jurisdiction to entertain a suit against him, for the reason that your exceptor is a resident of and domiciled in the parish of Rapides in your said state; further, that the said firm of W.D. Haas Co. at the time of its dissolution, over two years ago, and prior to any dealings, either by W.D. Haas or W.D. Haas Co., with the said plaintiff, occurred particularly prior to February, 1919, was domiciled in the parish of Rapides, and your honorable court would still be without jurisdiction ratione personæ in this matter."
The exception to the jurisdiction is without merit, as the present suit is not against the old partnership of W.D. Haas Co., the dissolution of which, according to the testimony of W.D. Haas, occurred on January 1, 1919, but against W.D. Haas, individually, doing business under the name of the late firm. The legal domicile of said firm is therefore unimportant.
In an act of sale of date February 15, 1919, W.D. Haas purchased all of the interests of the heirs of Samuel D. Haas, his late partner, in the stock of merchandise, notes, accounts, store building, and warehouse of the late firm of W.D. Haas Co., which was located and engaged in business at Bunkie, Avoyelles parish, prior to 1919. Haas also assumed all the liabilities of said firm.
It is testified by W.D. Haas that his late firm conducted a cotton business also at Bunkie, La., purchasing cotton under the name of W.D. Haas Co., prior to the year 1919.
The testimony in the case, as well as invoices, letters, etc., found in the record, show that W.D. Haas, since January 1, 1919, and as late as November 5, 1920, had been conducting individually a cotton business at Bunkie, La., under the old firm name of W.D. Haas Co.
As the cause of action of plaintiff arises from a matter connected with said business conducted by W.D. Haas at Bunkie, La., under the name of the late firm, the Fourteenth judicial district court of the parish of Avoyelles plainly has jurisdiction over the person of the defendant, although his legal domicile at the time may have been in Alexandria, parish of Rapides. Act 179 of 1918, § 1, subd. 12.
The exception to the jurisdiction was sustained by the trial judge, and plaintiff's suit was dismissed. This was error.
It is therefore ordered that the judgment appealed from be annulled and reversed. It is now ordered that the exception to the jurisdiction be overruled, that this case be remanded to the lower court, reinstated on the docket of said court, and be proceeded with according to law and in due course. Appellee to pay costs of appeal.
When the attorney for the defendant, appellee, was arguing his motion to dismiss this appeal, one of the members of the court reminded him of section 1907 of the Revised Statutes, which provides:
"No appeal to the Supreme Court shall be dismissed on account of any defect, error, or irregularity of the petition or order of appeal, * * * or in the citation of appeal or service thereof, * * * whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all cases the court shall grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee)," etc.
Thereupon, the attorney for appellee declared that he did not desire another service of the citation of appeal, and that, if the court should find it to be the law that his client was not entitled to a dismissal of the appeal, but was entitled only to a new service of the citation of appeal, he would waive his objection to the place where the citation of appeal had been served upon his client, and that the court need not further consider his motion to dismiss, or decide whether he was entitled to another service of the citation of appeal. Surely, the defendant, appellee, would not be entitled to have this appeal dismissed if the service of the citation of appeal at Alexandria was not a valid service. Murphy v. Insurance Co., 33 La. Ann. 454; Borde v. Erskine, 33 La. Ann. 873; Succession of Townsend, 36 La. Ann. 447; Philips v. Her Creditors, 37 La. Ann. 701; Cockerham v. Bosley, 52 La. Ann. 67, 26 So. 814; Hiller v. Barrow, 144 La. 282, 80 So. 538; Taylor v. Allen, 151 La. 82, 91 So. 635.
Our reason for overruling this motion to dismiss the appeal ought to be that the law does not allow us to dismiss it; and we ought to say that our reason for not ordering a new service of citation of appeal is that the appellee has waived whatever right he might have had to another service of the citation of appeal — as section 1907 of the Revised Statutes suggests an appellee may and ought to do.
The opinion, which has been submitted to the consultation, dealing with this motion to dismiss the appeal as if it would be a good cause for a dismissal if the service of the citation of appeal was not good, is not consistent with the decisions which I have cited, or with section 1907 of the Revised Statutes, and may lead to confusion.