#### HEMPERLY v. GEORGE SLIMAN & CO.

No. 1716.

Court of Appeal of Louisiana. First Circuit.

July 30, 1937.

For former opinion, see 174 So. 673.

Dickson & Denny, of Shreveport, for appellant.

Woosley & Cavanaugh, of Leesville, for appellee's.

PER CURIAM.

It is claimed on application for a rehearing that the minutes of the trial court show that intervener and third opponent, R. F. Hemperly, took a nonsuit as to that part of his claim for damages, and therefore the plea of res adjudicata was improperly sustained in his second suit for damages against the above defendants. The issues in the present suit are stated in our opinion where we affirmed the judgment of the trial court sustaining a plea of res adjudicata to the claim for *768damages arising out of the alleged illegal seizure of' plaintiff’s property by the defendant company under a judgment against plaintiff’s father. 174 So. 673.

There are two extracts of the minutes of the lower court in the record bearing date October 4, 1935. The first of these entries shows that on that day the exception filed by Sliman & Co. to the jurisdiction of the court on the intervention and third opposition was overruled; that on motion of counsel for intervener the fixing was set aside; answer to intervention filed and by agreement fixed for that day; that the garnishee filed, answer to intervention and the case was taken up and evidence adduced and submitted; that judgment was rendered in favor of intervener, R. F. Hemperly, declaring him to be the owner of the $490 seized in the hands of the City Savings Bank & Trust Company.

The other minute entry in the record shows that on the same day the exception to the jurisdiction was taken up, argued, and overruled. On motion of counsel for intervener nonsuit had in part. In other respects this second entry shows about the same procedure as the first. The judgment rendered and signed on the same day, October 4, 1935, decrees as follows:

> “For the foregoing reasons, the law and the evidence being in favor thereof, it is ordered, adjudged and decreed that there be judgment herein in favor of intervenor and against the original plaintiff overruling the exception filed by the original plaintiff. (Sliman and Company).

> “It is further ordered, adjudged and decreed that the money seized in the City Savings' Bank & Trust Co. of DeRidder in the name of R. T. Hemperly is in fact the property of R. F. Hemperly, and accordingly there is judgment herein directing that the amount due by said bank, the sum of $490.00, to pay said money to R. F. Hemperly.”

It was because of the fact that the judgment made no mention of the claim for damages set up by intervener in his opposition that we held the judgment, by its silence on this claim, rejected the same, and therefore served as the basis for the plea of res adjudicata in this second suit for damages arising out of the same alleged illegal seizure. We are now told in the application for rehearing that the above minute entry showing that on motion of counsel for intervener a nonsuit was had in part refers to a nonsuit by him on his claim for damages. In the briefs filed in this court no mention is made of a nonsuit having been entered by inter-vener in the first suit on his claim for damages, nor was any reference made to this minute entry claiming that it amounted to a nonsuit on the claim for damages.

We cannot assume that this nonsuit had in pai;t referred to the claim set up by intervener for damages which he was claiming against Sliman & Co. for the alleged seizure of his property. On that day Sliman & Co. filed an answer to the intervention and third opposition of R. F. Hemperly in which the company admitted that he was the .owner of the land and store fixtures which had been seized, and we have as much right to assume that this nonsuit in part by Hemperly had reference to his claim of ownership of the land and store fixtures as we have to assume that it referred to his claim for damages.

In any event, the judgment made no reference to his claim for damages nor did it dismiss that claim as in case of non-suit, and we are therefore of the opinion that we were correct in holding that this judgment was equivalent to a rejection of the claim for damages and served as a basis for the plea of res adjudicata in this second suit.

For these reasons, the application for a rehearing is refused.