Tri-State Finance Corp. v. Surry 139 So. 2d 100

BOLIN, Judge.

Plaintiff instituted this action against defendant for the sum of $1,175.40, together with interest and attorney’s fees, allegedly due by defendant to plaintiff on a promissory note, secured by a chattel mortgage on one 1955 Ford pickup truck and one 1955 Chevrolet sedan automobile. Ancillary to the principal demand, plaintiff caused both vehicles to be seized under a writ of sequestration. The defendant resisted the principal demand on a number of grounds, contending, among other things, the plaintiff practiced fraud upon him by inducing him to sign the promissory note in blank and subsequently completing same in a much larger amount than originally agreed upon. In the alternative, the defendant claimed the entire debt sued upon resulted from the sale of the Chevrolet sedan from the plaintiff to him; that the chattel mortgage included the pickup truck only as ad*102ditional security; and that such sale should be rescinded because of the redhibitory vices in the automobile. After a trial on the merits, but before a decision was rendered, the defendant filed a motion to dissolve the writ of sequestration on the pickup truck, together with a prayer for damages, alleging said truck was exempt from seizure under the homestead provisions of the constitution and also under the statutory exemption as a tool or instrument of his trade. The motion to dissolve was disposed of separately, resulting in a judgment dissolving the said writ and granting the defendant the sum of $250 as attorney’s fees for its dissolution. The judgment on the merits was rendered in favor of plaintiff and against defendant for the amount prayed for and thereby rejecting all of the special defenses tendered.

From that portion of the judgment dissolving the writ of sequestration, declaring the pickup truck exempt, releasing it from seizure, and awarding the defendant attorney’s fees, the plaintiff prosecutes a suspensive appeal to this court. The defendant has answered the appeal and prayed that the sale of the Chevrolet automobile be rescinded on the grounds of redhibitory vices; that the note and mortgage executed in connection therewith be cancelled; and that he be awarded additional damages for the dissolution of the illegal seizure of his truck in the sum of $252.40; and that otherwise the judgment be affirmed.

We will first direct our attention to the correctness of the judgment of the lower court which dissolved the writ of sequestration on the pickup truck. Article 11, Section 1, of the Louisiana Constitution of 1921, LSA provides, in part, as follows:

“There shall be exempt from seizure and sale by any process whatever, except as hereinafter provided, the homestead, bona fide, owned by the debtor and occupied by him, consisting of lands, not exceeding one hundred and sixty (160) acres, buildings and appurtenances, whether rural or urban, of every head of a family, or person having a mother or father or a person or persons dependent on him or her for support; also * * * one automobile truck, * * * whether these exempted objects be attached to a homestead or not, * * * to the total value of not more than Four Thousand Dollars ($4,000.00).”

Article 11, Section 2, sets up certain exceptions to the above exemptions and provides, in part, as follows:

“This exemption shall not apply to the following debts, to wit:

* * * * *

“7. For the amount which may be due for money advanced on the security of a mortgage on said property; provided, that if at the time of granting such mortgage the mortgagor be married, and not sepai'ated from bed and board from the other spouse, the latter shall have consented thereto. * * *

The method of waiving the homestead is set forth in the following quoted portions of Article 11, Section 3:

“ * * * Any person entitled to a homestead may waive same, in whole or in part, by signing a written waiver thereof; provided, that if such person be married, and not separated from bed and board from the other spouse, then the waiver shall not be effective unless signed by the latter; and all such waivers shall be recorded in the mortgage records of the parish where the homestead is situated. * * * ”

In Anderson v. Finley, La.App. 2 Cir., 1956, 84 So.2d 845, 847, this Court, quoting from Brantley v. Pruitt, 1932, 175 La. 879, 144 So. 604, set forth the four conditions for a debtor to claim exemption of land as a homestead, to-wit:

“ ‘(a) He must be the bona fide owner of the land.

*103“ ‘(b) He must occupy the premises as a residence.

“ ‘(c) He must have a family or person or persons dependent on him for support.

“ ‘(d) And the property must not exceed in value $2000.’ ”

Since the Pruitt decision, supra, the exemption has been raised to $4,000 and “one automobile truck” has been included in the constitutional provision. The above four conditions remain applicable under the present law and are applicable with respect to the truck involved herein. The defendant herein meets all of these conditions.

The evidence adduced on the trial shows that:

(a) Defendant, Lloyd Surry, is the bona fide owner of the-1955 Ford Pickup truck. He owned same prior to the mortgage and there is no question of vendor’s lien involved on the truck.

(b) Defendant was “occupying”, or using the said pickup truck in the course of his occupation and work at the time of its seizure.

(c) Defendant is “the head of a family”, in that he is the sole support of a wife and three children.

(d) The truck is worth much less than $4,000.

There is no provision in the chattel mortgage in question waiving the exemption for seizure, and it is conceded that defendant’s wife did not execute any such waiver. We, therefore, have no hesitancy in affirming that portion of the judgment declaring the pickup truck exempt from seizure under the cited homestead provisions of the Louisiana Constitution. We, therefore, pretermit any discussion as to whether the truck was also exempt under LSA-R.S. 13:3881 (formerly C.P. art. 644) as a tool or instrument of his trade.

As the motion to dissolve was separately tried, an award of damages for the dissolution of such illegal seizure was proper. The attorneys who represented the defendant in dissolving the seizure testified as to the nature and value of their services, and we see no error in the trial court’s award of $250 for such services. The defendant contends the judgment should also have included an additional award for loss of wages, profits, etc., which the defendant suffered while he was deprived of the use of his truck by the illegal seizure. If such items are sufficiently established, a judgment may be rendered for such damages. Mills v. Knox, La.App. 2 Cir., 1950, 49 So.2d 462. However, as appropriately pointed out in the cited case, the proof to substantiate such claims must be clear and definite and not subject to conjecture. Even though no written reasons were assigned by the trial judge, we note from his comments in the transcript of testimony that he was not satisfied with the proof offered by the defendant on these items of special damages for loss of wages, profits, etc. In our review of the record, we find no error in this portion of the judgment.

In the alternative, the defendant alleged that, at the time of the sale of the Chevrolet sedan, it contained vices and defects which rendered it unfit for the purposes for which it was acquired. The pertinent provisions of our law as it relates to this question is found in LSA-C.C. art. 2520, as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The evidence shows the defendant had previously owed the plaintiff company a small debt. While discussing his financial problems with the finance company, the sub*104ject of the purchase of the 1955 Chevrolet sedan came up. The plaintiff company had the vehicle on its lot for sale, and they agreed to sell it to Surry entirely on credit. While there is some dispute as to the agreed purchase price, it is clear the sale was made, and because there was no cash down payment, defendant granted a chattel mortgage on the Chevrolet as well as on the 1955 Ford pickup truck, which he already owned. This Chevrolet was represented by the plaintiff to be in good repair and ready for use. However, a review of the record shows that within a short time serious defects began to manifest themselves in the newly purchased automobile, which defects we will briefly outline. On the same day the defendant acquired the car, he and his family were -taking a trip to Belcher when he discovered that the frame was bent at the front to such a degree that he was unable to jack it up and fix a flat tire. Approximately four days thereafter, the defendant was unable to change the gears. Because of this latter difficulty, he returned the car to the plaintiff and it in turn sent same to a mechanic who found the transmission was faulty and needed a complete overhaul. The garageman kept the car about eight days and returned it to the defendant with the assurance that all of the difficulties had been eliminated, and it was in good working order. The defendant, therefore, took the car and again attempted to use it, but found that it was using an excessive amount of oil. He again returned it to the plaintiff who agreed to remedy all of the difficulties by having the motor completely overhauled. Within a few days after the purported overhaul job was done, the car went bad on the defendant again. He left it at a nearby grocery store and informed the plaintiff finance corporation that it would not run. Whereupon, the automobile was taken by the plaintiff to a mechanic for the third time. The vehicle remained in the garage this last time about a week, and the defendant was told it was ready for him. However, he refused to accept it, complaining he was convinced it was unfit for the purpose for which he purchased it. As Surry had owned the automobile for only a short time, he had not paid anything on the original purchase price, and he merely informed the finance company that he was not going through with the transaction and desired to be relieved of the note and chattel mortgage in connection therewith.

It is our opinion that the testimony in the instant case conclusively shows that the automobile was so defective as to render it practically useless to the purchaser. The record also shows that every time a vice or defect became apparent, the defendant would return the automobile immediately to the plaintiff; and it was only after he had become so completely disgusted with its operation that he notified the plaintiff he would not take it and desired the entire transaction cancelled.

In the recent case of Falk v. Luke Motor Company, Inc., 1959, 237 La. 982, 112 So.2d 683, 685, the Louisiana Supreme Court rescinded the sale of an automobile on the ground of redhibitory vices and defects. There, as here, many repairs were made, such as replacement of the engine, generator, voltage regulator, starter, etc. There also, the seller partly remedied the defects, but the defendant maintained that the automobile was below standard and not repaired to his satisfaction. The court stated the issue as follows:

“Hence, the sole issue posed for our determination is whether the automobile exhibited such imperfections which rendered its use so inconvenient that, had the plaintiff known of them, he would not have bought it.”

and held:

“We are fully convinced that the use of this car was so inconvenient and imperfect as to justify a recission of the sale.”

In Combs v. International Harvester Co., La.App., 2 Cir., 1959, 115 So.2d 641, 643, this court cancelled the sale of a second*105hand truck on the grounds that the vices and defects (dead battery, bad brakes, defective starter, worn valves) rendered the vehicle “so imperfect and useless plaintiff would not have purchased it at any price had he known of its condition.” In making this holding the court cited the following basic test in an action of redhibition as set forth in Roby Motors Co., Inc., v. Harrison, 1932, 19 La.App. 659, 139 So. 686, 688:

“ 'It goes without saying that when a person purchases an automobile he primarily wants a vehicle that will meet his needs for it. A car that will not run, or one which runs intermittently, requiring the attention of a mechanic frequently to keep it going, is an abomination to the owner.’ ”

The present case certainly meets this test, and we, therefore, conclude that the sale of the Chevrolet sedan should be rescinded and the note and mortgage executed in connection therewith should be cancelled.

In many of the cases which we have examined relating to the rescission of sales because of redhibitory vices, the courts have stated the parties should, as near as possible, be returned to the status quo. This will not be difficult in the instant case because the only money owed by the defendant to the plaintiff, in addition to that for the purchase of the Chevrolet automobile, was the sum of $36. It is conceded by all parties that this amount has been paid. Therefore, a rescission of the sale and the cancellation of the note and chattel mortgage will restore the parties to their exact status before the sale took place, i. e., Surry will have his pickup truck free of any mortgage; Tri-State Finance Corporation will have the Chevrolet; and plaintiff will have been repaid the $36 indebtedness, which was the only amount owed to it prior to the transaction in question.

Having decided the sale should be rescinded because of redhibitory vices, it is not necessary for us to pass on the special defense of fraud.

For the reasons stated, the judgment of the lower court, insofar as same dissolved1 the writ of sequestration on the 1955 Ford pickup truck and awarded the defendant judgment against plaintiff in the sum of $250 for the illegal issuance thereof, is affirmed; otherwise, said judgment is reversed and set aside and the plaintiff’s demands are rejected. The plaintiff-appellee to pay all costs of the lower court and this appeal.

Partially affirmed and partially reversed.

GLADNEY, J., dissents and assigns written reasons therefor.

GLADNEY, Judge

(dissenting).

As shown in the majority opinion, the appeal taken to this court was pursuant to orders of appeal granted Tri-State Finance Corporation April 3, 1961 from a judgment signed on that same date, maintaining a motion to dissolve the writ of sequestration. The appeal bond filed on April 25, 1961, effected a devolutive appeal from the judgment rendered against Tri-State Finance Corporation. On April 4, 1961, a separate judgment was signed on the merits of the case and from that judgment neither the plaintiff nor defendant perfected orders of appeal.

In briefs filed before this court both the appellant and appellee treat the appeal as if it is inclusive of both judgments. My opinion is that our consideration is limited to the entirety of the judgment appealed and we have no jurisdiction to consider matters having no connexity with or which do not arise out of the judgment from which plaintiff appealed.

LSA-C.C.P. Art. 2133 permits an appellee to timely file an answer to the appeal which “shall be equivalent to an appeal on his part from any portion of the judgment rendered against him and of which he complains in his answer.”

The answer of appellee to the appeal not only seeks to have this court consider cer*106tain damages arising from the alleged illegal seizure of respondent’s truck, but also includes a prayer for relief which has no relationship to the judgment sustaining the motion to dissolve, hut arises from other matters which were tried on the merits and for which a separate judgment was signed, hut from which no appeal was taken. It is, therefore, my opinion that the majority opinion is in error in extending the jurisdiction of this court to include those matters which go beyond the concept of the judgment sustaining the motion to dissolve the writ of sequestration.

On Rehearing

AYRES, Judge.

A rehearing was granted herein to afford a consideration of the question of the court’s jurisdiction or authority to review, under the appeal taken herein and the answer thereto, the judgment of April 4, 1961, pronouncing upon the merits of the matter at issue between plaintiff and defendant. The facts necessary for this consideration will again be briefly stated.

Plaintiff, by this action, sought recovery of the defendant upon a promissory note secured by chattel mortgage upon a Ford truck, and a vendor’s lien and chattel mortgage on a Chevrolet automobile. Under a writ of sequestration, this truck and the automobile were seized. Defendant answered plaintiff’s demands under date of February 1, 1961, and then, under date of March 21, 1961, filed a motion to dissolve the sequestration, as to the pickup truck, with damages. The motion to dissolve was tried March 30, 1961, and sustained, with an award of damages in the sum of $250 in the nature of attorney’s fees. Formal judgment dissolving the sequestration and awarding damages was signed April 3, 1961. From that judgment, orders of appeal were immediately granted to plaintiff, Tri-State Finance Corporation. The appeal was perfected by the filing' of an appropriate bond on April 25, 1961. The case, on its merits, was tried and judgment was rendered and signed on the day following the rendition and signing of the judgment sustaining the motion to dissolve and the entry of orders of appeal.

Plaintiff’s appeal from the judgment dissolving the sequestration and awarding damages was answered by defendant, which answer would tend to place at issue, on the appeal, not only matters incidental to the judgment appealed but matters appertaining to the judgment on the merits. Such answer purports to present a question of defendant’s liability on the obligation sued upon and plaintiff’s entitlement to a judgment thereon.

We may point out that, on the original hearing, this court considered that all issues presented by the motion to dissolve, as well as on the merits of the case, were encompassed by plaintiff’s appeal from the judgment on the motion to dissolve and by defendant’s answer to that appeal. In fact, counsel for both plaintiff and defendant briefed all such issues as if properly before the court. The matter was thus considered and judgment rendered accordingly. Attention was, however, directed in a dissent, and later in a motion for rehearing, to the possible lack of jurisdiction of the matters concerned in the judgment on its merits.

The matter presented for determination is whether an answer to an appeal from a judgment on a motion to dissolve a sequestration and an award of damages may bring up for consideration matters subsequently determined by the trial court, as to the merits of the case, on which a separate judgment was rendered and signed and from which no appeal was specially taken. Preliminary to a discussion of the question presented, we may point out that, by statute, as well as in the jurisprudence, the rule is well established that, until an appeal from a judgment is perfected, the trial court is not divested of jurisdiction, nor is the appellate court invested with jurisdiction. LSA-C.C.P. Art. *1072088; Ilardo v. Agurs, 226 La. 613, 76 So.2d 904; Vaughn v. American Bank & Trust Co., 223 La. 479, 66 So.2d 4; Borgnemouth Realty Co. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841; Mundy v. Phillips, 157 La. 445, 102 So. 519.

Therefore, inasmuch as no appeal was taken from the judgment rendered on trial of the merits of this cause, it can only be reasoned that the trial court has not been divested of jurisdiction, nor that this court has been invested with jurisdiction of the merits of this case. Thus, generally, it may be said that a judgment, order, or decree, or part thereof, which has not been appealed from is not before an appellate court for review. Hence,

“ * * * an appeal from one of several judgments, orders, or decrees does not authorize the review of any other judgment, order, or decree; and this is so however closely they may be united. * * * ”,

and this

“ * * * rule applies where the judgments, orders, or decrees are entered in distinct actions or proceedings.”

5 C.J.S. Appeal & Error § 1472, pp. 729-731.

Also, on an appeal from an interlocutory decision, usually only the decision from which the appeal was taken will be reviewed. Where an appeal from such a decree is authorized, the rule is stated:

“ * * * in such a proceeding the appellate court will not review another interlocutory decision from which no appeal was taken, * * * nor will it .review a final judgment or decree. An authorized appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, even though the appeal from the interlocutory decision is taken after the entry of the final judgment.”

5 C.J.S. Appeal & Error § 1494, pp. 815, 816.

This court, in Harrison v. Atlas Signcrafts Co., La.App.2d Cir., 1941, 200 So. 173, refused to consider questions pertaining to the merits of a controversy on an appeal from a judgment dissolving a writ of attachment rendered in advance of the trial of the case on its merits.

Therefore, we are of the opinion that the trial court was not divested of jurisdiction of the merits of this cause, nor that this court was invested with jurisdiction thereof by the appeal taken by plaintiff from the judgment sustaining a motion to dissolve the sequestration in awarding damages for the wrongful seizure made thereunder.

Appellee contends, however, that, by its answer to the appeal, the correctness of the judgment as to the merits of the cause is before us for review. Reliance is made upon LSA-C.C.P. Art. 2133. This article provides that an appellee shall not be obliged to answer an appeal unless he desires to have the judgment modified, revised, or reversed in part, or unless he demands damages against the appellant. The effect to be given is that

“ * * * The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against Mm and of which he complains in his answer.” (Emphasis supplied.)

As clearly observed from this portion of the article, the answer must pertain or .relate to some portion of the judgment appealed. The judgment appealed did not pertain to the merits of the case and, therefore, the issues presented as to the merits may not be, in the manner undertaken, brought up for review. Had the merits of this cause never been tried nor judgment rendered predicated thereon by the district court, such facts would only serve to confirm the correctness of the proposition that an appeal from an interlocutory deci*108sion does not confer jurisdiction of the merits of the case upon an appellate court, nor that such jurisdiction of the merits can he conferred by an answer to an appeal taken from an interlocutory decision.

Nevertheless, we are urged to consider the merits of this cause under the provisions of LSA-C.C.P. Art. 2164. This article provides that

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

As stated in the comments of the .reporters:

“The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below. This article insures that the ‘theory of a case’ doctrine, which has served to introduce the worst features of the common law writ system into Louisiana is not applicable to appeals under this Code. * * *”

The answer to this urging of appellee is that the article contemplates matters and issues over which the appellate court has jurisdiction. We conclude, therefore, that we were without jurisdiction to consider, and were in error in considering, matters pertaining to the merits of this cause as urged upon us through appellee’s answer to plaintiff’s appeal from the judgment dissolving the sequestration and awarding damages for the wrongful exercise of that process. That portion of our decree reversing the judgment of the trial court upon the merits of this cause is, therefore, erroneous and our decree must be accordingly amended.

For the reasons assigned, our original decree is amended by deleting therefrom the following provision:

“ * * * otherwise, said judgment is reversed and set aside and the plaintiff’s demands are rejected. * * *”

and, as thus amended, our original decree is reinstated.

Amended and reinstated.