Plaintiff obtained judgment on an open account against defendant on October 13, 1952, in the sum of $220.90, with legal interest from December 7, 1951 until paid, less the sum of $18.14 paid, together with
The Judge of the trial court had previously, on January 9, 1953, signed an order authorizing the intervention and directing the citations to issue as prayed for. Defendant, H. C. Nobles, through counsel on January 13, 1953, accepted service of the petition, waived citation and reserved all rights. The plaintiff, Bulova Watch Company, on January 14, 1953, through counsel accepted service and reserved all rights. On the motion filed by the defendant, H. C. Nobles, the attorney for the intervenor, Joseph Ebrecht, accepted service of the motion on January 13, 1953, and the attorney for the plaintiff accepted service, and V. G. Anderson, the Marshal, accepted service of the motion. On January 26, 1953, the Court tried the motion of the defendant as well as the intervention and third opposition of Ebrecht. He sustained the motion directing that certain tools of the defendant used in his trade be released and also rendered judgment in favor of
On the day the judgment was signed in favor of intervenor, the plaintiff, Bulova Watch Company, Inc., through counsel, moved for and was granted an order of devolutive appeal to this court returnable on or before February, 1953, upon the plaintiff's furnishing bond in the sum of $100. The appeal was not perfected under that order, because on May 6, 1953, the plaintiff applied for and was granted another order of devolutive appeal returnable to this court on or before June 8, 1953. The record was filed in this court on May 19, 1953. The plaintiff, Bulova Watch Company, Inc. has appealed from the judgment and contends here that the judgment of the City Court should be reversed because the pleading filed by the lessor was an intervention, and that it should have been filed before the judgment was rendered in favor of plaintiff on the main demand, and that the intervention was filed too late and was improperly before the court. The plaintiff and appellant further contends on the appeal that if the pleading be considered as a third opposition, it should be dismissed for the reason that the Marshal of the City Court was never cited or made party to the suit.
It is a modern rule of practice and procedure that in construing pleadings, courts will not be governed by the name or style a pleader gives to his pleading, but will construe the pleading for the purpose for which the plea was filed and look to its substance and the relief sought, rather than technicalities. Bozeman v. McDonald, La.App., 40 So.2d 517. The terms "intervention" and "opposition of third persons" referred to in Articles 153, 362, 364, 389-394, Code of Practice, provide for a proceeding by a third person not an original party to the suit before a judgment on the merits of the case. Articles 395-403, Code of Practice, provide for a proceeding instituted by a third person for the purpose of arresting the execution of an order of seizure or judgment rendered in such suit or to regulate the effect of such seizure in what relates to him. Of course, the pleading filed in this case had for its purpose the assertion of a lessor's lien and its payment by preference and priority over the claim of plaintiff, the seizing creditor, and is, correctly speaking, a third opposition because it does not seek to be decreed the owner of the property. It only has for its purpose the recognition of its privilege as a lessor, which entitles him to be paid by preference his claim out of the proceeds of the sale.
It is our opinion, therefore, that the pleading filed by the lessor is a third opposition and that its purpose was to regulate the distribution of the proceeds of the sale and the Judge below so found when he ordered the Marshal to pay Ebrecht, the intervenor, and third opponent, the full amount of his claim in satisfaction of his lessor's lien on the goods, wares and merchandise seized in the leased premises.
The only serious question presented by the appeal is whether the failure of the record to show that the Marshal had service of the petition filed by Ebrecht, intervenor and third opponent. Appellant contends here that since the record does not affirmatively show that the Marshal was served with intervenor and third opponent's petition, the judgment should be annulled in his favor and reversed and that the proceeds of the sale of the merchandise should be ordered to plaintiff, the seizing creditor. Article 401 of the Code of Practice reads:
We also find that an opposition based on a privilege must be served on the seizing creditor and sheriff; but defendant in execution need not be made a party. Converse v. Hill, 14 La.Ann. 89; Wagner v. Newman, 18 La.Ann. 508; Cason v. Cecil, 201 La. 890, 10 So.2d 692, 201 La. 890; Pollock Paper & Box Co. v. Crosby, La.App., 16 So.2d 611. If plaintiff had made these objections at the time the court below rendered judgment or had filed any answer to this opposition on the ground that the Marshal had not been made a party to the opposition or intervention and had given the Trial Court an opportunity to have ruled on the matter, we would entertain his position here. It is raised for the first time on a devolutive appeal after the judgment of the trial court had been executed and the proceeds disbursed. Can we consider it now as a substantial defect apparent on the face of the record to annul and set aside a judgment of the Trial Court already executed? There can be no doubt that the Marshal was served with the motion of defendant to release the tools and implements of his trade. There can be no doubt that the record shows that plaintiff's counsel and the Marshal filed no responsive pleading to the intervention and third opposition of the lessor because the minutes of the court, as well as the judgment read:
It was not necessary to join issue between third opponent and defendants in opposition by default in absence of plea. LSA-R.S. 13:1877.
The Marshal sold the property on January 31, 1953, two days after the judgment on the intervention and opposition was rendered and distributed the proceeds in accordance with the judgment. The point this case must turn on is whether a seizing creditor as a party to a suit can permit a case to be tried without making any plea or objecting to the want of proper parties and then raise the question of proper parties or service of process for the first time on a devolutive appeal after a judgment has been executed. We think plaintiff's objection on account of no service or appearance by the Marshal comes too late when urged for the first time on a devolutive appeal after the judgment has been executed. What the Court of Appeal, Parish of Orleans, said in Rothschild v. Perkins, 8 Orleans App. 369, is appropriate here:
For the foregoing reasons, the judgment is affirmed.