[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 185 Plaintiff, suing upon a New York judgment for alimony, attached the one-eighth interest of defendant, a nonresident, in certain residence property at the corner of Camp and Phillip streets in the city of New Orleans. By supplemental petition filed March 30, 1921, the original demand of plaintiff for alimony was increased from $3,320 to $4,197.97, and, by further amendment of petition filed June 29, 1922, the latter amount claimed was increased to $5,822.97.
Defendant obtained the release of the property attached on a bond in the sum of $2,475, executed September 12, 1921.
Numerous third persons, including William J. Hartman, were made garnishees, and answered that they were not indebted to defendant in any amount. A second writ of attachment issued upon the filing of the supplemental petition June 29, 1922. Hartman was made garnishee under both the first and second writs of attachment. In his answer as garnishee under the first writ made April 8, 1921, he denied any indebtedness to defendant. In his answer as garnishee under the second writ, he made a similar denial, and stated that he had purchased on September 12, 1921, the interest of defendant in the property attached for the price of $1,650.
On June 22, 1921, plaintiff filed a rule to traverse the answers made by Hartman as garnishee on April 8, 1921, and on October 24, 1921, plaintiff filed a second rule to traverse the answer of Hartman as garnishee made on October 3, 1921.
The grounds of these rules to traverse were that the answers of the garnishee were false and evasive.
On January 17, 1922, these rules were ordered dismissed by the court, as shown by minute entry, no formal judgment being signed.
On November 28, 1921, plaintiff filed and recorded in the office of the recorder of mortgages for the parish of Orleans a notice of *Page 187 lis pendens, reciting the pendency of her original suit filed May 13, 1920, of her supplemental petition filed March 13, 1921, increasing her demand to $4,197.97, and of the rule to traverse the answers of W.J. Hartman as garnishee made October 3, 1921.
On February 15, 1922, Hartman, garnishee, took a rule on plaintiff to cancel and erase the notice of lis pendens recorded November 28, 1921, on the ground that the property had been released on bond, and that said notice had been filed by plaintiff through her attorney "illegally and wrongfully, there being no warrant in law for same."
The exceptions to rule to cancel tendered by plaintiff were overruled, and on June 20, 1922, a judgment was rendered making absolute the rule to cancel inscription of notice of lis pendens of date November 28, 1921. No appeal was taken from this judgment.
On January 17, 1922, a judgment was rendered dismissing the rule to traverse, no appeal being prosecuted from this judgment. On February 6, 1923, Hartman, garnishee, filed a second rule to cancel a second inscription of the notice of lis pendens recorded on June 30, 1922, and referring to the pendency of the supplemental petition filed June 29, 1922. The second rule to cancel the second notice of lis pendens recites the purchase by Hartman from defendant, on September 12, 1921, of the interest of defendant in the property attached, the release of said property from seizure on bond in the sum of $2,475, the proceeding thereafter by plaintiff against Hartman under garnishment process, and by rule to traverse his answers as garnishee, the recordation, in connection with said proceedings, on November 28, 1921, or the first notice of lis pendens, and the finality of the judgments dismissing the rules to traverse and to cancel the inscription of the first notice of lis pendens.
Mover alleges in said rule that plaintiff, in her supplemental petition filed June 29, 1922, *Page 188 has attempted, illegally and wrongfully, to revive the issues already determined in his favor in the proceedings already had.
The exception of res adjudicata pleaded to the supplementalpetition of plaintiff has never been passed upon by the lower court, as said exception has never been tried. The plea of res adjudicata set up in the second rule of Hartman to cancel the second notice of lis pendens is based solely upon the allegationsof the first notice of lis pendens, upon the statement that theallegations of the second notice are similar, and upon a judgment of date June 20, 1922, ordering the cancellation of the first notice, and also upon a judgment of date January 17, 1922, dismissing the rule to traverse the answers of Hartman as garnishee.
The first rule to cancel the first inscription of notice of lis pendens was filed February 15, 1922. It is based upon the allegations that Hartman had purchased the interest of defendant in the property attached on September 12, 1921, upon the release of the attachment upon bond, and that plaintiff, through her attorney, illegally and wrongfully and without warrant of law recorded said notice in the office of the recorder of mortgages of the parish of Orleans.
It is true that the first notice of lis pendens contained the averment that:
"The transfer by Joseph R. Macheca, on the 12th of September, 1921, of his interest in said real estate to said William J. Hartman, was collusive and of no effect between the parties, and was in violation of the writ of attachment and garnishment proceedings instituted and pending in said cause, and that no real consideration or otherwise passed between the parties to said transfer, and that the object of said alleged transfer and sale was to deny and defeat the rights of plaintiff," etc.
However, the first rule to cancel the notice of lis pendens raises no issue as to simulation and fraud or collusion to place the property transferred beyond the reach of plaintiff, a judgment creditor, and no such *Page 189 issues were passed upon on the trial of said rule. The merits as to these issues were not gone into at all.
The judgment on the rule was, therefore, interlocutory, and not final, and cannot be made a basis for a plea of res adjudicata. C.P. arts. 538, 539.
"The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality." R.C.C. 2286.
The demand in the first rule was for the cancellation and erasure of the inscription of the notice of lis pendens as illegal. Its object was not to have the sale from defendant to Hartman declared legal and valid.
The demand in the supplemental petition of plaintiff is much broader than the allegations contained in the notice of lis pendens, as said demand contains, apparently, all of the elements of a resolutory action, and its object is to have said sale declared illegal, null, and void as simulated and fraudulent. The demands, therefore, are not the same in the rule to cancel the notice of lis pendens and in the amended petition filed by plaintiff. It is true that no matter how the question is raised, whether by plea, exception, intervention, etc., the questions disposed of by the judgment are res judicata. Hewett Bank v. Williams, 48 La. Ann. 708, 19 So. 604; McNeely v. Hyde, 46 La. Ann. 1098, 15 So. 167.
However, it is necessarily true also that the question must be raised. The question as to the sufficiency of the garnishee's title was not raised in the rule to cancel the notice of lis pendens, and could not be raised, except in a direct action brought for that purpose, as will be shown by decisions of this court cited in this opinion.
Moreover, the notice of lis pendens is not *Page 190 annexed to the petition, and is not referred to in the petition. Such notice forms no part of the pleadings in the case, and we cannot conceive how this notice can be resorted to in order to eke out a plea of the thing adjudged. The cancellation of such notice is purely a collateral issue, independent of the merits of the case as to the title of the garnishee, which has been attacked by plaintiff in a direct action of revocation. The plaintiff has had no day in court as to the issue whether said sale is simulated and fraudulent, and should be set aside, and the property transferred by her debtor subjected to the payment of her judgment. Nor can the judgment dismissing the rule to traverse the answers of Hartman be considered as a basis for the plea of res adjudicata. The grounds of traverse are the alleged falsity and evasiveness of the answers of Hartman as garnishee. The issue as to the fraud or simulation of the sale from defendant to Hartman is not raised in this proceeding, and this issue has not been tried on the merits of the case.
In fact, the validity of the garnishee's title to property in his possession, when he claims to be owner, cannot be passed on in a rule to traverse his answer. Such an issue can only be adjudicated in a direct suit, brought to test the sufficiency ofthe title. Liminet v. Fourchy, 51 La. Ann. 1303, 26 So. 87; Wapples on Attachment, p. 368; Peet et al. v. McDaniel Co., Gardner Co. and A. Baldwin, Garnishees, 27 La. Ann. 455; Martin Ivens, Jr., v. E.M. Ivens Co., Johnson, Garnishee, 30 La. Ann. 249.
The plaintiff has taken a devolutive appeal from a judgment rendered on April 9, 1923, and signed on April 23, 1923, ordering the cancellation of the inscription of the second notice of lis pendens recorded on June 30, 1922, against Hartman as the owner of the property attached in this case. Tr. 108, 110. *Page 191
Plaintiff has also appealed suspensively from a judgment rendered on April 23, 1923, and signed on April 27, 1923, on the plea of res adjudicata, filed herein on July 11, 1922, by W.J. Hartman to the demands of plaintiff in her supplemental petition, filed June 29, 1922, and dismissing her suit.
The basis of this judgment rendered by Judge Boatner is the judgment rendered by Judge King June 20, 1922, ordering the cancellation of the first notice of lis pendens recorded November 28, 1921, and the judgment dismissing the rule to traverse. The new trial on the rule of Hartman to cancel notice of lis pendens was refused, and Hartman's plea of res adjudicata to plaintiff's demands against him in her supplemental petition filed June 29, 1922, was maintained.
The judgment sustaining the plea of res adjudicata was not rendered on that plea, as urged against plaintiff's amendedpetition, and formally fixed for trial, but on the rule ofHartman to cancel the notice of lis pendens, the plea of res adjudicata being set up expressly in said rule to cancel.
For the reasons already assigned, this judgment is erroneous. The judgment signed on April 23, 1923, ordering the cancellation of the inscription of the second notice of lis pendens, is also erroneous, as it appears from the reasons for said judgment assigned by the trial judge, that he was of the opinion that the property went free of the plaintiff's claims, because it had been bonded.
This is not merely an attachment suit. The amended petition filed by plaintiff June 29, 1922, sets forth, ostensibly, a revocatory action. Plaintiff was a judgment creditor of defendant in a sum exceeding $5,000 on September 12, 1921, when defendant, as her debtor, sold to Hartman his interest in the property attached, after it had been released on bond. Plaintiff alleges the insolvency of defendant at the time, to the knowledge of Hartman, and collusion between defendant *Page 192 and his vendee, Hartman, to shield said property from her pursuit as a creditor, through a pretended transfer of said property, which plaintiff charges to be simulated and fraudulent, and devised for the purpose of defrauding her. Plaintiff prays for judgment decreeing said transfer to be simulated, fraudulent, null and void, and of no effect. It is well settled that the law of this state does not and cannot sanction or maintain a sale of property by the original owner or his vendee during the pendency of a revocatory action instituted by a creditor of the original owner, seeking to avoid, in its effects as to him, an alleged fraudulent sale of the same property by an insolvent debtor.
R.C.C. art. 2453; City of New Orleans v. Marchand, 35 La. Ann. 222; Gillespie v. Cammack, 3 La. Ann. 252; Cantereau v. Lacaze, 9 La. Ann. 257; Ranlett v. Constance, 15 La. Ann. 423; Pagett v. Curtis, 15 La. Ann. 453.
In the case of Ranlett v. Constance above cited, we held:
"Under the provisions of article 1972 of the Civil Code, the district judge was authorized to decree that the property itself be applied to the payment of the creditor's claim. It was not the mere attachment that gave a privilege to the plaintiff; but, independently of the attachment, he acquired the right of recourse on the property itself by virtue of his action in revocation. His remedy is, consequently, twofoldagainst the bond, by means of the attachment, andagainst the property through the revocatory action. C.C. 2428." (Italics ours.)
Article 1977 (1972) of the Revised Civil Code declares that:
"The judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor's estate, by virtue thereof, or the value of such property to the amount of the debt, be applied to the payment of the plaintiff."
Article 2453 (2428) of the Revised Civil Code is to the effect that: *Page 193
"The thing, claimed as the property of the claimant, cannot be alienated, pending the action, so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another's property, and does not prevent him from being put in possession by virtue of such judgment."
Therefore, the bonding of the property attached did not release said property from the claims of plaintiff in her revocatory action.
The defendant Hartman, in addition to the exception of res adjudicata pleaded to the demands contained in plaintiff's supplemental petition, also pleaded in the alternative:
"(1) That plaintiff having accepted in these proceedings the benefit of the sale now sought to be attacked as fraudulent and simulated is estopped to attack its validity. (2) That said petition states no cause or right of action against defendant."
Neither of these alternative pleas was passed upon by the lower court. Appellee, however, for answer to the two appeals, prays that both judgments be affirmed, but, in the event that the exception of res adjudicata should not be maintained, appellee prays, in the alternative, that we maintain, either the exception of no cause of action, or the exception of estoppel.
Where an exception has not been passed on in the court below, it cannot be considered by this court. Gordon v. Business Men's Racing Ass'n, 140 La. 674, 73 So. 768.
The judgments appealed from are annulled and set aside, and this case is remanded to the court below for further proceedings according to law.
On Rehearing.