LAWS OF LOUISIANA

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

PREPARED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY SAUNDERS AND GURLEY,

OF THE NEW ORLEANS BAR.

Acknowledgments. - See Affidavits and Deeds.

Actions. Actions are commenced by petition, stating cause of action and asking for citation and relief, addressed to court having jurisdiction. Petition must also set forth residence and names of both plaintiff and defendant. Citation issued by clerk of court, under seal, is served by sheriff. Ten days after service allowed for pleadings or compliance with demand. One additional day allowed for every additional ten miles defendant's residence is distant from court-house. In district courts certified copy of petition must be served with citation. In suits growing out of transactions made here, service may be made in other states or countries. (Act 23 of 1900.) Service by publication is not allowed, except in proceedings in rem. When court is in session default can be entered if no appearance within delay provided. Two judicial days thereafter, if still no appearance, judgment may be confirmed. All dilatory exceptions must be filed before default. Judg ments by default on accounts can be confirmed by affidavits. In New Orleans claims not exceeding one hundred dollars exclusive of interest go to city court, where default can be taken four days after service of citation, and judgment two judicial days thereafter, if no appearance has been entered.

Administration of Decedents' Estates. - See Successions.

Affidavits - Or acknowledgments may be taken before any judge, justice of the peace, notary, or commissioner for Louisiana, or other officer authorized to administer oaths. If before a notary or commissioner for Louisiana and certified under hand and official seal of such notary or commissioner, no further proof of the signature, seal, and official character of such officer necessary. (Act 140 of 1896.) If before other officer, his capacity, etc., must be certified by secretary of state. All acknowledgments must be witnessed by two male witnesses over the age of sixteen years. This is not necessary for affidavits. It is considered better practice for the witnesses to sign both the instrument itself and the acknowledgment. Usual form of affidavit, not statutory: UNITED STATES OF AMERICA.

STATE OF

COUNTY OF

}

Before me, the undersigned authority, personally came and appeared ally known, who being duly sworn, deposes and says Sworn to and subscribed before me this

day of

to me person

19 •

(Signature.) Designate character of officer taking affidavit.

Usual form of acknowledgment, not statutory:
UNITED STATES OF AMERICA.

STATE OF

COUNTY OF

Before me, the undersigned authority, personally came and appeared

to me per

sonally known, who signed the foregoing document before me and in the presence of the two subscribing legal witnesses and acknowledged in the presence of said witnesses that he had signed the above and foregoing as his voluntary act and deed, and for the uses and purposes therein set forth.

at

In faith whereof, I have hereunto set my hand and seal of office this day of (Signature.) Designate character of officer taking acknowledgment. In foreign countries can be certified before a minister, chargé d'affaires, consul-general, consul, vice-consul, or commercial agent. The officer taking the affidavits and acknowledgments should satisfy himself as to the identity of the person appearing before him. Corporations should always attach their seals. Individuals need neither seal nor scroll. It is legal to have the acknowledgment pasted on the instrument, if arranged so as to be inseparable therefrom, but such practice is deprecated.

Aliens. No restrictions upon them.

Appeals. Appeals are either suspensive or devolutive. The first suspends execu

tion; latter does not. Suspensive must be applied for within ten days with bond exceeding by one half amount of judgment if for specific sum. If judgment decrees delivery of peri-hable object, security to an amount exceeding by one half estimated value thereof. If judgment for real estate or object not perishable, security to an amount exceeding by one half estimated value of the revenue to be derived therefrom pending the suit, and such further security as judge may determine for injury or deterioration. In devolutive appeal, bond for costs only, and fixed by judge. See, further, Courts.

Arrest. See Conservatory Writs.

Assignments.-State law superseded by the United States bankruptcy law.
Attachment. See Conservatory Writs.

Chattel Mortgages - Do not exist. See Liens or Privileges; also Pledge and Mortgages.

Claims against Estates. See Successions.

Claims, Proof of. - See Proof of Claims.

Conditional Sales. - Conditional sales of movable property are lawful, but do not affect innocent third persons. Possession of a movable is a presumption of ownership, and if purchased from one in possession, in good faith, it carries title, notwithstanding possession may have been under conditional agreement or even fraudulent. The landlord has privilege for rent on nearly all property placed in building notwithstanding it belongs to third persons. If the contract is a Louisiana contract the law grants a privilege for unpaid price. See Liens or Privileges. No special statute.

Conservatory Writs.- Conservatory writs are provisional orders obtained in certain cases, provided by law, in order to give effect to the suit brought or to be brought. They are, arrest of the debtor, attachment in hands of third persons, sequestration, provisional seizure, and injunction.

Arrest of Debtor. (Seldom used.) Any creditor whose debtor is about to leave the State, even for a limited time, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person of such debtor arrested and confined until he shall give sufficient security that he will not depart from the State without the leave of the court. Can be used for liquidated or unliquidated debt. Cannot be used against citizens of another State unless such debtor absconded from his own State. Creditor using this writ must present petition accompanied by oath (C. P. art. 214) and bond exceeding by one half amount claimed, with good surety residing in parish where suit is brought.

Attachment. -Writs of attachment can be issued in following cases: 1. When debtor is about leaving permanently the State, without there being a possibility in the ordinary course of judicial proceedings of obtaining or executing judgment against him previous to his departure, or when such debtor has already left the State permanently. 2. When such debtor resides out of the State. 3. When he conceals himself to avoid being cited and forced to answer to the suit intended to be brought against him. 4. When he has mortgaged, assigned, or disposed of, or is about to mortgage, assign, or dispose of his property, rights, or credits, or some part thereof, with intent to defraud his creditors or give an unfair preference to some of them. 5. When he has converted, or is about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors.

In attachments of non-resident's property, judgment extends to property seized only, and there can be no personal judgment rendered. A creditor may in like manner obtain a seizure against all species of property belonging to the debtor, real or personal, credits, rights of action, etc., whether same be in debtor's possession or in that of third persons. Petition for attachment must be accompanied by affidavit (art. 243, C. P.), and bond for amount equal to that claimed, including costs and interest, with surety residing in parish where writ issued. If creditor is absent, affidavit may be made by agent or attorney in fact or attorney at law. In such cases agent or attorney can swear to best of his knowledge, information, and belief. Sureties need not own real estate. Attachment can issue whether debt due or not due. Attaching creditors are paid in the order of the date of service of their attachments. Non-residents are entitled to obtain writs of attachment. Defendant can obtain damage for illegal issuance of writ. Writ can issue on Sundays or holidays. If creditor believes a third person has money or property belonging to defendant, or is indebted to him, or has rights or credits belonging to him or under his control, such creditor may issue interrogatories to such third person and seize such property, etc. If garnishee answers that he has nothing belonging to debtor, creditor may by proper proceedings traverse said answers and prove their falsity. Defendant may have property attached released by giving sheriff bond for sum exceeding by one half the value of the property attached, with surety residing at place where action is brought.

Sequestration.-Writ of sequestration will issue: 1. When one, who had possessed for more than one year, has been evicted through violence, and sues to be restored to his pos session. 2. When one sues for the possession of movable property, and fears that the party having possession may send the property in dispute out of the jurisdiction of the court during the pendency of the suit. 3. When one claims the ownership or the possession of real property, and has good ground to apprehend that the defendant may make use of his possession to dilapidate or to waste the fruits or revenues produced by such property, or convert them to his own use. 4. When a woman sues for a separation from bed and board, or only for a separation of property from her husband, and has reason to apprehend that he

will ruin her dotal property, or waste the fruits or revenues produced by the same, during the pendency of the action. 5. When one has petitioned for a stay of proceedings and a meeting of his creditors, and such creditors fear that he may avail himself of such stay of proceedings to place the whole or a part of his property out of their reach. 6. A creditor by special mortgage shall have the power of sequestering the mortgaged property, when he apprehends that it will be removed out of the State before he can have the benefit of his mortgage, and will make oath of the facts which induced his apprehension. 7. The plaintiff may obtain a sequestration in all cases where he has a lien or privilege on property, upon complying with the requisites provided by law. 8. A sequestration may be ordered in all cases, when one party fears that the other will conceal, part with, or dispose of the movable in his possession, during the pendency of the suit, upon complying with the requisites of the law. Petition must be accompanied by affidavit (art. 276, C. P.) and bond for such sum as the court shall fix, with surety residing in parish where writ issues. Defendant may release on furnishing sheriff bond with surety residing in parish where writ issued for such sum as judge shall determine as being equal to value of property to be left in his possession. If defendant fails to bond within ten days after seizure, plaintiff may then bond upon executing bond as above specified. In a few cases the judge before whom a suit is pending may ex officio order sequestration. In such cases no bond is required.

Provisional Seizure.-Writs of provisional seizure will issue in following cases: 1. In executory proceedings when the plaintiff sues on a title importing confession of judgment. 2. When a lessor prays for the seizure of furniture or property used in the house or attached to the real estate which he has leased. 3. When a seaman, or another person, employed on board of a ship or water craft navigating within the State, or persons having furnished materials for or made repairs to such ship or water craft, prays that the same may be seized and prevented from departing until he has been paid the amount of his claim. 4. When the proceedings are in rem; that is to say, against the thing itself which stands pledged for the debt, when the property is abandoned, or in cases where the owner of the thing is unknown or absent. 5. Laborers on farms or plantations, whether they are employed by the day, month, or year, when they sue for their wages, shall have the right to provisionally seize the crop or other thing on which they have a privilege for such employment, by making oath that they verily believe the crop or other thing on which they may have a privilege is about to be removed from the farm or plantation or place where it was raised, or ordinarily belongs; or, if it has already been removed, that they verily believe the thing is about to be sold, or disposed of, so as to deprive them of their privilege. Petition must be accompanied by affidavit. No bond is required. Defendant can bond with surety residing in parish where writ issued for value of the property or amount of claim. Intervenor claiming ownership can bond after ten days, if defendant fails to do so. Lessors may seize even in hands of third persons such furniture as was in the leased house, if the same has been removed by lessec, provided he declare on oath that same has been removed without his consent, within fifteen days previous to his suit being brought.

Injunction. Writs of injunction must be granted in following cases: 1. When the defendant is in the act of building or constructing some work tending to obstruct a place of which the public has use. 2. When the defendant is constructing, either within the bed of a navigable river or on its banks, works which may prevent the navigation of such river, or render it more difficult, or prevent ships or other crafts from easily landing and unloading on the bank of such river. 3. When the defendant has commenced some building or other works on real estate the ownership or possession of which is contested by the plaintiff, or if he pretends that such building or works would be injurious to his interest. 4. When defendant opposes the execution of work necessary for the repairs of public levees, dikes, roads, bridges, canals, drains, and the like. 5. When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of real estate or of a real right, of which he claims either the ownership, the possession, or the enjoyment. 6. When a woman has sued her husband for a separation of property, or for a separation from bed and board, and fears that he will, during the pendency of the suit, dispose, to her prejudice, of the property either held in the community or on which she has a privilege for her dotal rights. 7. When the sheriff, in execution of a judgment, has seized property not belonging to the defendant and insists on selling the same, disregarding the opposition of him who alleges that he is the real owner, or is guilty of any other illegal act in the execution of his office. 8. When the ownership of an estate, real or personal, is in dispute, and the plaintiff fears that the defendant, who is in possession of such property, may take advantage of his possession to sell or dispose of such prop erty in any other manner during the pendency of the suit. 9. On the application of any purchaser whose property is seized for the payment of the price of a thing sold to him, whenever suit has been instituted against him for the recovery of the property. 10. To stay execution when payment is alleged to have been made after judgment rendered, when compensation is pleaded against the judgment, or where the sheriff is proceeding on the execution contrary to some provision of law; provided that no judgment or execution shall be enjoined on an allegation of compensation, set-off, or subsequent payment, except for the amount of such sum plead in compensation, set-off, or payment as shall be established by the defendant, according to law; and such judgment, for any surplus that may exist, shall be executed in all respects as if no such injunction had been granted; and provided further, that whenever an injunction is granted on an allegation of compensation, set-off

or payment, it shall be the duty of the judge to require from the person claiming such injunction a bond and security in double the amount of the sum alleged to have been paid conditioned for the payment of damages in case the injunction shall have been wrongfully

sued out.

Injunctions may issue against third persons not parties to a suit as follows: 1. The sheriff may be enjoined from paying to the plaintiff the proceeds of the property seized, if a third person opposes such payment, alleging that he is entitled to be paid out of such proceeds in preference to the plaintiff, having a previous hypothecation or privilege, or any other right by which he claims to be paid in preference to the plaintiff. 2. The sheriff may be enjoined from paying the claim of the plaintiff out of the proceeds of the sale of the property seized, if a third person opposes such payment, alleging that the defendant had no other property to pay his debts except that which had been seized, and praying that the proceeds of the sale may be brought into court, to be distributed among all the creditors of the defendant, according to the order of their respective privilege or hypothecation. 3. If one be in possession of property, of whatever nature it may be, whether the same was placed in his hands as a deposit or otherwise, and a third person claims the ownership of such property by a suit, such third person may obtain an injunction directed against the possessor of such property, prohibiting him from disposing of the same until the further order of the court. 4. Besides the cases above mentioned, courts of justice may grant injunctions in all other cases when it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some other act injurious to the other party. 5. In addition to the cases mentioned above, the judge may grant an injunction, on the application of any purchaser whose property is seized for the payment of the price of a thing sold to him, whenever a suit has been instituted against him for the said property. Petition must be accompanied by affidavit (art. 204 C. P.) and bond with surety residing in parish for such amount as judge shall determine. When act prohibited is not such as may work irreparable injury to plaintiff, court may in its discretion dissolve same upon defendant giving bond. If injunction is violated, the court may cause to be destroyed whatever has been done in contravention thereof or punish for contempt

Consignments. No special statute.

Corporations. Any number of persons not less than six can form corporations for construction, working, and maintenance of railroads, canals, plank roads, bridges, ferries, to bore for oils, minerals, etc., to construct and operate pipe lines, etc., and other works of public improvement, whether within or without the limits of the State. No provision as to amount of capital stock; fifteen or more for corporations to effect fire, marine, river, and life insurance, etc. (Act 105 of 1898.) Three or more persons can form themselves into a corporation for the purpose of carrying on any lawful business or enterprise, except for insurance or banking or business designed to exercise the power of eminent domain. Such corporation must have a subscribed capital of not less than three thousand dollars. Any number of persons exceeding six can form themselves into corporations for any religious, scientific, literary, or charitable purpose. Any number of persons not less than twentyfive shall have power to form themselves into a corporation for athletic, military, gun practice, or social purposes, to promote the progress and development of the State, etc., in the same manner and form, and with the same powers and under the same conditions and restrictions, as are provided by law for the organization of corporations for literary, scientific, religious, and charitable purposes.

Every charter shall contain: 1. The name, title, and place chosen for its domicile. 2. A description of the purposes for which it is established, the nature of the business to be carried on, and the description of the officers on whom citation may be served. 3. The amount of the capital stock, the number of shares, the amount of each share, and the time when and the manner in which payments on stock subscribed shall be made. 4. The mode in which elections of directors or managers shall be conducted. 5. The mode of liquidation at the termination of the charter. Charters must be signed by the requisite number of persons and passed before a notary, or the signatures acknowledged before a notary. Charters for commercial and manufacturing purposes must be recorded in the mortgage office of the parish of their domicile, together with the list of subscriptions to their stock. Such charters must also be published in some daily paper in the parish of their domicile five times within thirty days. Other charters must be approved by the district attorney of the parish of their domicile and recorded in the mortgage office. They need not be published. All meetings of stockholders and directors must be held at domicile of corporation. No provision as to number of directors or as to residence, except as to insurance companies and banks, directors of which must be citizens of Louisiana. No provision as to amount of capital stock to be paid in at organization. Charters can be amended or dissolved at a general meeting of the stockholders convened for that purpose. The amount of three fourths of the stock represented at such meeting is necessary. The change or dissolution shall be recorded in the same manner as the charter, but need not be published. The capital stock of any Corporation may be increased or decreased by a vote of a majority of the stock, at a meeting called for that purpose. Notice of such meeting must be published for thirty days preceding time fixed for meeting, and copy of notice deposited in post-office, prepaid, addressed to each stockholder at his usual place of residence, at least forty days before

meeting A certificate of the vote containing various information regarding shares, liabilities, etc., shall be signed under oath by the chairman and secretary of the meeting and filed in office of the secretary of state. Amendments to charters for literary, scientific, etc., purposes must be approved by the district attorney. Any railroad, plank road, turnpike, canal, elevator, or warehouse, drainage, sewerage, land reclamation, levee, waterworks, electric light and power, bridge or bridges, sugar mills and refineries, saw mills, rice mills, cotton oil mills, irrigating plants, and railway companies established under laws of this State, may borrow money for construction, repairs, acquisition of property and franchises, etc., and issue bonds secured by mortgage or pledge on its property, income, etc. No stockholder can be held liable or responsible for the contract or fault of the corporation beyond unpaid balance due on his stock. Foreign corporations (except mercantile) doing business in this State must file with secretary of state a declaration of domicile and name of resident agent upon whom service of process can be made. If this is not done, corporation can be sued in parish where cause of action arose, and service of process made on any person acting or transacting business for such corporation. Cost of organizing corporation about thirty dollars exclusive of fee of lawyer and notary. Foreign corporations can hold real estate.

Whenever a person residing permanently out of the State shall die, his stock may be transferred or sold, or dividends collected by his heirs, executors, administrators, or representatives without the necessity of having themselves recognized as such by or obtaining from any court in this State any order or decree for the sale or transfer of said stock or dividends.

Administrators, executors, tutors, and syndics may sell at private sale at market price bonds and shares of stock when necessary and when ordered by court. If minors are interested, the advice of a family meeting must be obtained. For taxes, see Tax Law.

Courts, Jurisdiction and Terms of. See Court Calendar for Louisiana. Deeds. All instruments affecting real estate must be in writing, and to affect third persons must be registered in conveyance office in parish where property situated. A deed of sale of real estate must be signed by the vendor and should be signed by vendec. Vendee's signature is not essential, and any act of ownership is sufficient to act as acceptance of deed. Act should contain: 1. Date and place where passed. 2. Names, surnames, and qualities of the contracting parties. 3. A description of the immovable property which has been transferred, with all necessary details. 4. The price of the transfer, whether paid in ready money or on time, and in the latter case what the terms and conditions are. Deeds must be passed in this State before a notary and two witnesses, or properly acknowledged if passed elsewhere. For form and requirements of acknowledgment, see Affidavits. Married woman need not join husband in act affecting his real estate unless she has a privilege or mortgage registered against it.

Depositions. - A litigant wishing to take the testimony of a witness residing out of the parish or State must file written interrogatories stating under oath the materiality of the evidence. A copy of these interrogatories is served upon the opposite party or his attorney, who is allowed three days to cross. Commission is then issued addressed to any officer authorized to administer oaths. The commission can be executed any time within limit fixed in commission. The officer executing commission should cause witnesses to appear before him, and, after swearing them to tell the truth and answer truly all the interrogatories and cross-interrogatories, should propound them to the witness and reduce the answers to writing. Under the statute the writing must be by the officer himself, or a disinterested person in his presence. In our opinion, however, answers can be taken stenographically in the presence of the commissioner and subsequently transcribed on typewriter, if the officer's return shows that it was read over to the witness and signed by him. If witness resides in the parish, at least two days' previous notice of the time and place of taking the deposition must be given. If the witness or his counsel reside out of the parish, then ten days' notice shall be given. No questions beyond those in the written interrogatories can be propounded (except by consent), and the witness should not be assisted in testifying. The parties litigant can be present if they desire. The officer should prepare a proces-verbal reciting the taking of the testimony, etc. The depositions, commission, and proces-verbal should be fastened together, sealed up, the envelope indorsed with the title and number of the case, and forwarded to the clerk of court from which the commission issued. This can be sent by mail, express, or any other safe means. The form of proces-verbal usually used (not statutory) is as follows:

UNITED STATES OF AMERICA.

STATE OF

COUNTY OF

}

88.

(Title of the suit and name of the court.)

Be it known, that acting under and by virtue of the annexed commission issued in the above entitled and numbered suit by the court, and authority in me vested, I,

a notary public, commissioner, etc. (as the case may be), did cause to personally come and appear before me on this day of at the hour of one of the witnesses named in the annexed commission, and after having first duly sworn him according to law to tell the whole truth and to truthfully answer the annexed interrogatories and crossinterrogatories, I did then propound to him the said interrogatories and cross-interrogato ries, to which he made answer as follows, to wit: