author: Howell, J. Wxlx, J.,

text:
    No. 749.
    M. E. L. I. Frere, Wife, etc., v. E. B. Mentz, Sheriff, et al.
    Two mortgage creditors seeking a preference over tlie proceeds of tlie sale of property mortgaged, can not, in a proceeding by third opposition, be permitted to attack the validity of each other’s claims. In such a case it is not the right over the thing mortgaged that is to he passed upon, hut the disposition of the proceeds of the sale of the thing mortgaged. In this form of action the respective rights to the proceeds must be-determined by the priority of rank of the mortgage, without reference to the character of the claims.
    The true doctrine on this point seems to be that if one creditor wishes to destroy the right of another for the purpose of securing a preference for himself, he must do so by direct action and not by way of third opposition.
    APPEAL from the Third Judicial District Court, parish of St. Mary.

      Train, J. Frederick Gates, for plaintiff and appellee.
    D. Gaffery, for defendant and appellant.
   Howell, J.

This is a proceeding b3 third opposition in which plaintiff claims by preference the proceeds of property subject, as she alleges, to her rights of mortgage against her husband, recognized in w-judgment obtained by her against him and duly recorded. The defendant, who caused the property to be sold under an execution, attacks tlie judgment of plaintiff against her husband as fraudulent and collusive; avers that if she was. entitled to any judgment, it is satisfied; that the whole and not the undivided half sold at his suit of the property in question is liable to her claim, if any she have; and that a certain pretended daiion enpaiement from the husband to plaintiff, the wife, was fraudulent, and he prays that the said judgment and dation en paiement be declared fraudulent, collusive, null and void, and that tbe sheriff he ordered to pay the proceeds in controversy to him.

To this demand for nullity the plaintiff sets up the prescription of one year.

The counsel for defendant, in his brief, presents the following proposition :

“ The question on the point of prescription is, whether one, in the enjoyment of a right or possession of property, can be ousted of the one or evicted of the other by a party claiming by paramount title, without having the right to question the validity and fairness of his adversary’s title, after a certain period;” or thus: “our exception of fraud and collusion is never too late, under the rule of quae temporalia, as long as plaintiff seeks to oust us under her fraudulent judgment.”

It will be observed that iu this the only question for determination is, whether or not defendant can properly invoke the rule quae temporalia, etc., that is, is he in the position to use the charge of fraud as a shield rather thau as a weapon of attack *?

In our opinion the defendant is not in the enjoyment of a right in the sense which authorizes the application of the rule invoked by him. It is true he may be said to be in possession or enjoyment of a right of mortgage from the date of the execution of that mortgage, which right ho is entitled to have enforced against the property affected by it; but the plaintiff is in possession of a similar right attaching to the same irroperty, and by our jurisprudence neither can prevent or enjoin the. other from enforcing such right upon the property so affected; but they must make claim to the proceeds, as has been done in this proceeding, and the success of each depends on the virtue or rank of the respective rights. When thus presented, apparently in duo and regular form, if one claimant wishes to evade or destroy the right of the other, which appears to be paramount to his, he must directly assail it, not in the form of an exception, with a view of maintaining-himself in his secured position, but by an attack to obtain a better position than ho seems or claims to occupy. In another view, both are seeking to get possession of funds to which both claim a right, and the rank of the right of one must be destroyed in order that the right of the other may be maintained or effectual. Such is defendant’s position. He must destroy or remove the apparently paramount right of plaintiff before his right is msfae effectual or available. Hence ho is not in a position to invoke the rule quae temporalia, etc.

We think there is force in the position taken by him that the mortgage of the plaintiff attaches to the whole property, the bne undivided half of which has been seized under the execution of defendant, and that in order to sustain a judgment giving her the whole of the proceeds of said half, it should appear that the proceeds of the whole property would not more tlian satisfy her claim. For aught that appears in the record the whole property is sufficient to satisfy the balance actually due her (whatever it may be) and leave a surplus for defendant. As well said by his counsel: “A third possessor is not personally liable to the mortgage claim. C. C. 3400 [3402]. He has ¡his option to pay the debt for which the property is mortgaged or give it up. In the case, therefore, of a third possessor, holding a fractional part of the whole of the mortgaged property, he can only be compelled to pay the mortgage in proportion to the value of the part held by him to the whole of the property as an entirety.”

It is the property of a third possessor in this category, the proceeds •of which are involved herein, and the case must be remanded on this point.

It is therefore ordered that the judgment appealed from be reversed and that this cause be remanded to the lower court to be proceeded in according to the views herein expressed and according to law, costs of appeal to be paid by plaintiff and appellee.

Wxlx, J.,

dissenting. I regret that I am unable to concur with the •majority of the court on the question of prescription presented in this case.

I think the prescription announced in article 1994 of the Revised Civil Code has no application whatever to this case. That is a preemption, in express terms, applicable only to the action for the revocation of a contract. IIow the prescription of the action for the revocation of a contract can, by implication, be extended to an action for the revocation of a judgment, I can not imagine.

It is well known that laws of registry, of mortgage, of privilege and ■of prescription fall under that class termed leges positivi, and can not be extended by implication; they must be construed strictly. A law of prescription can not be supplied by jurisprudence; it must appear in •some statute. Article 1994 and the section to which it refers will be searched in vain to find the announcement of a prescription to the action for the revocation or annulment of a judgment. Here the wife is opposing a judgment creditor of her husband and is contending that she has a mortgage of superior rank on the proceeds which the latter seeks to obtain in satisfaction of his claim. To this he replies her judgment is invalid because the claim on which it is based is fraudulent and unfounded. I think a creditor of the husband has the right to require the wifq to show the validity of her claim at any time when it is opposed to the enforcement of his rights against the husband. A creditor whose rights are affected by it has this right. He was not a party to the decree of separation and is not concluded by it. Until it is opposed to the enforcement of his rights, the creditor need never attack it for fraud or otherwise. I think article 1994 means what it says, and nothing- more. If the law-giver had intended that the-prescription of an action for the revocation of a contract should be-applied to an action for the annullment of a judgment, ho would have-said so; he would not have limited it, in express terms, to contracts..

I think the extension by implication of a statute of prescription to-other 'objects than those expressed in the act, is a blow at the well settled principle of elementary law that that class of laws denominated legespositivi are not subject to liberal interpretation as other laws and are always to be construed strictly. I think the prescription of one year invoked by tho wife in this case, to avoid the attack of her husband’s creditor and to escape the responsibility to make good her claim iu a competition with him for funds of the husband, should be disallowed, because it is a prescription applicable to contracts by the letter of the law, and the court has no authority to extend its operation to judgments.

I therefore dissent on this question.


source: Caselaw Access Project

author: IIowe, J.

license: Public Domain

text:
    No. 741.
    Zenon Broussard v. Joseph Breaux.
    Proving that a debtor made a payment on the day and dato that it is credited on his note is proving an acknowledgment of the debt.
    Parol ovidenco, offered to establish that he made the payment as credited on the note, is; therefore inadmissible after the maker has died and payment is sought to be enforced; against his succession. 21 An. 350.
    APPEAL from the Sixteenth Judicial District Court, parish of Lafayette. JDébaillon, Judge ad hoc.

      Poblano c& Perry, for plaintiff and appellee.
    If. PI. Girard, for defendant and appellant.
   IIowe, J.

In the case of Pavy v. Escoubas, lately decided, and in tho case of succession of Hillebrandt, 21 An. 350, we have had occasion to decide that a partial payment only interrupts the. current of prescription, because it is au implied acknowledgment of the debt, and that, under the statute of 1858, parol evidenco should not he admitted to prove such partial payment by a debtor since deceased. The plaintiff in this case contends with much earnestness that these decisions should he overruled, hut his arguments fail to satisfy tho court of the correctness of his position.

The defendant’s objection to such parol proof in this case should have been sustained.

The claim in suit is clearly prescribed, and it is therefore ordered that the judgment appealed from he reversed, and that there he judgment for defendant, with costs of both courts.


author: Ludelmg, C. J.

text:
    No. 755.
    Marie Irma Deville v. James G. Hayes, Sheriff. Durey Dupre v. James G. Hayes, Sheriff.
    A judgment debtor who refuses to point out property when demand is made by the sheriff, thereby loses the right given him to point out property to be seized under execution. C. P. G4¿

    •The fact that property of the judgment debtor has been seized, if not taken possession of by the sheriff, will not entitle him to an injunction to stay the sale. 9 Hob. 3 83.
    An injunction will not lie to stay the sale of property under execution on the ground of inaccuracies in the description, if they were not such as could have deceived the judgment debtor.
    The husband can not give personal property to his wife in payment of her judgment against him, after a seizure by his judgment creditor has been made. Hut if the sheriff in the execution of a judgment against the husband, fails to take the property into his possession, and the husband afterward gives it to his wife in payment of her judgment against him, then and in that case the wife can successfully enjoin the sale, because no legal seizure was made at the time of the giving in payment.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry.

      King, J. II. L. Garland, for plaintiffs and appellees.

      JBaily & Fstilelte and Thomas H. Lexois, for defendants and appellants.
   Ludelmg, C. J.

These consolidated cases are injunction suits to arrest the execution of the judgment of Cecile Jannis v. Durel Dupré. There was judgment perpetuating the injunctions, and the defendants have appealed.

The judgment debtor bases his injunction on the following grounds :

First — He never was called upon to point out property.

Second — The sheriff made no seizure of any property, having never taken possession of the property.

Third — The notice of seizure does not correctly describe the property.

I.The deputy sheriff testifies that lie. called upon tiie debtor to point ■out property, and that defendant in execution refused and failed to do so. He therefore lost the right given to him to point out property. C. P. 646, 649.

II.If it he true that the property was not seized, because not taken into the possession of the sheriff, the debtor lias no cause of complaint, and no grounds to invoke the aid of the courts. 9 Rob. 182.

III.The inaccuracies in the description of the property were not '■■•such as could have deceived the defendant. He knew what property was intended to be designated, and he could not have been in any manner injured by the slight inaccuracies of the description. 19 La. 301 j 2 La. 63. The injunction sued out by Durel Dupré should have been dissolved. '

In addition to the above alleged grounds for an injunction, the wife, Marie I. Deville, claimed to be the owner of the property seized. The «evidence shows that in the suit between herself and her husband, the ■seizing creditor intervened and opposed her claim, and that after hearing, the property claimed by her in that suit was adjudged to belong †-o her. The property thus decreed to belong to her was the plantation and improvements thereon, the stock of cattle and horses (in the possession of the husband), marked with the brands E. O., L. ° D. and E. H. And it is proved that on the twelfth July, 1869, a elation enpaiement was made to the wife of the other property, which is advertised lor sale, except the buggy, in satisfaction of the money judgment obtained by her against her husband.

The judgment was pleaded as res judicata. We think the plea correctly made. Whether the Ration en paiement conveyed to the wife the other property claimed, depends upon the fact whether or not, at the time, a lawful seizure of the property had been made, for if a legal seizure existed at the time of the giving in payment, the acquired rights of the seizing creditor could not have been affected by it.

The evidence of the deputy sheriff leaves no doubt in our minds that he did not seize the Creole horses and mules, and other personal property advertised, because he did not take possession of them. 6 R. 348; Gobean v. New Orleans and Nashville Railroad Company; 7 Rob. 504; 9 Rob. 182; 2 An. 338, 785, 910.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed; that the injunction sued out by Durel Dupré be dissolved with costs; that the injunction of Marie Irma Deville be perpetuated as to all the property seized except the buggy, and that the appellees pay costs of this appeal.


author: Ludeling, C. J.

text:
    No. 758.
    Valery S. Martin, Administrator, v. Sidney and Wesley Singleton.
    The purchasers of a plantation at prohate sale gave their notes to the administrator with an obligation, conditioned that if the heirs could not he forced to receive Confederate treasury notes in payment of the price, then the notes given were to be exigible. The heirs refused to receive Confederate notes in discharge of the debt. Suit was brought on the notes. Held — That inasmuch as the heirs had not accepted the Confederate notes in discharge •of the debt, and under existing laws they could not be compelled to receive them, tho ■notes given under the terms of the conditional obligation were still due and unpaid.
    APPEAL from tb© Third Judicial District Court, parish of St. Martin.

      Train, J. Teblane & Terry and Telix Yoorldes, for plaintiff and «.ppellee.

      JS. L. Simon and T. J. Gary, for defendants and appellants.
   Ludeling, C. J.

In September, 1859, the defendants bought at a succession sale a plantation, and for the price executed their notes, in solido, in favor of the administrator of the succession.

In 1862, the defendants offered to pay the notes in Confederate currency, and the administrator agreed to receive the currency, on condition that the heirs, to whom the proceeds of the notes would go when collected, could be forced to receive the currency, and the following agreement was signed by the defendants:

“August 1, 1862. Tlie undersigned promise to pay to Simeon Valery Martin the sum of $4394, for so much coming to the heirs of ElizaSteen, deceased wife of Henry Kellis, from the estate of Elias Steen. We promise to pay said amount if Mr. S. V. Martin can not force said heirs to accept Confederate notes in payment of their share; otherwise, if the heirs are forced to accept Confederate notes, this note will be null.

(Signed). . WESLEY SINGLETON,

SIDNEY SINGLETON.”

The notes were delivered to the defendants.

This suit is to enforce the payment of the notes thus surrendered.. There was judgment in favor of the plaintiff against Sidney Singleton for the whole amount. Wesley Singleton having died before the trial,, there was no judgment as to him. There is no error in the judgment.

The condition, upon the happening of which the deposit of the Confederate currency was to be a payment or discharge of the obligations-of the defendants, never occurred. The heirs did not receive the money, nor could they have been forced to do so in this State. The-notes, therefore, according to the terms of the agreement, are still-unpaid.

It is therefore ordered and adjudged that the judgment of the lower-court be affirmed, with costs of appeal.


author: Taliaferro, J.

text:
    No. 759.
    Felicien Guillory v. Marianne Manette Guillory.
    A contract made between a married woman and an overseer to oversee the plantation without the authorization or knowledge of the husband, is void and of no effect. Such a contract gives to the overseer no right of action to enforce it either against the wife or-tho plantation.
    APPEAL from the Eighth Judicial District Court, parish of St.. Landry. B. T. Lewis, Acting Judge, in place of King, J., recused.

      JL. L. Garland, for plaintiff and appellee.

      Bailey & Bstelette, for defendant and appellant.
   Taliaferro, J.

The plaintiff .instituted this suit in the year 1865-against the defendant to recover $1000 on account of wages as an overseer for that year, to which he alleges he is entitled under a contract previously entered into between them. A citation was served upon the defendant, but before issue joined the defendant died and the suit was renewed against her administrator, who filed an exception to the plaintiff’s right to recover, on the ground that at the time of the alleged contract Madame Guillory was a married woman and not-authorized by her husband to enter into the pretended contract. The exception was overruled, and the defendant answered by general. denial. Tlie plaintiff had judgment for $200, with legal interest, and the defendant appealed.

The plaintiff prays that the judgment bo amended so as to allow him the whole of his demand.

It appears that for several years prior to 1865 the plaintiff, who was-a brother of Madame Guillory, was overseer or manager for her, in the absence of her husband and sons, who were in the Confederate army;, that he received a certain portion of the crop each year for his-services; but, in January, 1865, she discharged him without cause, as-the plaintiff avers, and that he was thrown out of business in consequence and suffered loss.

The facts shown give no color of right or justice whatever to the-plaintiff’s demand. The exception should have been sustained, as it-is admitted on the record that at the time of the engagement entered into by the plaintiff with the defendant she was a married woman and her. husband was not in any manner a party to the contract, and gave-no authority to his wife to enter into it.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of defendant, tlie plaintiff paying costs in both courts.


author: Howe, J.

text:
    No. 761.
    Frank Perrett v. J. Bachman Lee.
    'JCIio fact tliat tlie creditor resided in tlie citv of Few Orleans, •witinn tlie Federal lines of military occupation, during tlie late war, while Ins debtor resided within the Confederate-lines of military occupation, both in the State of Louisiana, did not, under the dispositions of the Civil Code, work an interruption of prescription. The eroditor can not,, therefore, invoke such relation to defeat the plea of prescription.
    APPEAL from the Eighth Judicial District Court, parish of St.. Landry. E. T. Lewis, Acting Judge, in place of King, J., recused.
    U. L. Garland, for plaintiff and appellant.

      E. J). Estelette, for defendant and appellee.
   Howe, J.

The only question raised in this ease hy the plaintiff,, appellant, is in reply to the defendant’s plea of prescription to throe of the five notes in suit. They matured, respectively, on the fifth of' February, 1860, 1861 and 1862. Citation was served March 25, 1867. More than five years having elapsed between maturity and citation, it-would seem that tlie plea of prescription was properly maintained on the authority of numerous decisions.

The appellant states in his brief that he does not contend that-prescription was suspended hy the war, but that it was interrupted by tbe fact that the plaintiff resided in New Orleans during the war,, while the defendant resided within the Confederate lines. We do not" find in our code any sucli cause of interruption defined. We are there told that prescription is interrupted by citation and by acknowledgment, and by the causes which are explained in the first section of chapter third of the twenty-third title of the code. C. C. 3460, 3461, 3551, 3516, 3517. The cause of interruption suggested by appellant is not in this category; nor can we imagine that (as he contends) the “natural interruption” of article 3517 has any relation to the facts of this case.

Judgment affirmed,'


author: Howell, J.

text:
    No. 760.
    J. W. Burbridge & Co. v. J. J. Andrus.
    Tlio right to call a third party in warranty is conferred only upon the defendant in tlie action, and the judgment in warranty is dependent entirely on tlio judgment against the defendant in the main action. C. P. 362.
    The holder of a promissory note indorsed in blank can not, therefore, proceed against the indorser as a warrantor.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry.

      King, J. H. L. Garland, for plaintiffs and appellants.

      Martel cC IhriSspeth, for defendant and appellee.

      Moore & Morgan, for warrantor.
   Howell, J.

This is an action against the defendant as maker of a promissory note for $1200 and for the balance of an account. In answer the defendant alleged that the note was giveh for Confederate treasury notes loaned to him by the payer and indorser, R. S. Wilkins, and that since the institution of the suit he has paid the amount of the account. Plaintiffs then filed a sux>plemenfal petition, alleging that, as they had received said note from Wilkins for a valuable consideration, to wit: the amount thereof, and as he guaranteed the existence of a contract on the part of the maker, he is bound to plaintiffs for the amount of the note in case the maker sustains his defense, and they prayed that said Wilkins be cited to prosecute this suit conjointly with plaintiffs and decreed to pay them the amount of the note, with six per cent, interest, and costs.

Wilkins, for answer to the call in warranty, denies that he warranted the validity of the claim sued on or that the consideration of the note was legal, and avers that he simply transferred it by blank indorsement as negotiable paper and ho is not bound in warranty tliereon, not having sold it: that if responsible at all, it is only as indorser of negotiable paper, which, if not collectable on account of illegality of its consideration, he can not be compelled to pay, and that ho is not sued as indorser.

Judgment was rendered dismissing plaintiffs’ suit, and they have appealed.

In this court they admit that the consideration of the note was Confederate treasury notes, hut they contend that Wilkins is responsible us the guarantor of the debt and that, as every indorsement is essentially an original contract, equivalent to a new bill in favor of the holder on the acceptor or maker, they are entitled to judgment •against Mm.

Whatever may be the responsibility of the indorser of a note tainted with illegality, we think there is no cause or ground for a call of warranty in this case, and that the court did not err in dismissing the suit. “A personal warranty is that which takes place in personal actions; it arises from the obligations which one has contracted to pay the whole or a part of a debt due by another to a third person,” C. P. 379. No such obligation was assumed by Wilkins, who is not sued herein as indorser.

We will add that by the Code of Practice a call in warranty seems to be conferred only on a defendant and the judgment thereon to he dependent on a judgment against him. C. P. 362, 363, 378 to 388.

Judgment affirmed.


text:
    No. 763.
    Charles Thompson v. Cleophas Comeau, Administrator, et al.
    ’The district court bas jurisdiction of a cause against a succession if the amount exceeds five hundred dollars, and also to declare that the vendor’s lien exists on the property sold to the deceased. But in the settlement of the succession the parish court is not divested of its jurisdiction by such judgment.
    The vendor’s privilege is not required to be recorded as between the parties to the act. If, therefore, in a suit to enforce the lien there are no third parties who are affected, the fact of non-registry will not avail the defendant.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry.

      King, J. Martel & Hudspeth, for plaintiff and appellee.

      H. L. Garland, for defendants and appellants.
   Howe, J.

The district court, in our opinion, had jurisdiction of this •case, hoth to give judgment against the succession for the demand, which exceeded $500, and to declare that for a part of the demand a vendor’s privilege existed on the property sold by plaintiff to the deceased, and which was in Ms possession at the time of Ms death, and on the proceeds which were in the hands of the defendant, administrator.

Such a judgment will not prevent the parish court from “settling” the succession according to article 87 of the Constitution, and ranking the claims.

The vendor’s privilege in this case was not recorded, and did not require to be recorded as between the parties to the sale, and they are, in strictness, the only parties before the court. It does not appear that there are any third persons, creditors ox the succession, as against whom a registry was essential. Such may, however, exist, and they should not be prejudiced by this judgment. It is therefore deemed proper to amend the decree in this regard. The trivial error in the-amount of credits given by the judge a quo (if it does not fall under' the rule “ de minimis”) should have been corrected by an application to him on the part of the defendants’ counsel.

It is therefore ordered that the judgment appealed from be amended by reserving the rights of the creditors of Jacob Anselm, deceased, if any there be, to oppose the privilege of plaintiff in the settlement of the succession •, that, as thus amended, the judgment be affirmed.


text:
    No. 762.
    Helena McDonald, Wife, etc., v. James M. Thompson, Sheriff, et al.
    The husband is not a competent witness to testify on the trial of an injunction suit in which the wife is plaintiff, because his testimony must be either for or against his wife. C. C. 2281.
    APPEAL from tho Eighth Judicial District Court, parish of St. Landry.
    King, J. Martel ó¿ Hudspeth, for plaintiff and appellee.

      Henry L. Garland, for defendants and appellants.
   Ludeling, C. J.

This is an appeal from a judgment perpetuating an injunction obtained by the plaintiff.

During the trial the defendants took a bill of exceptions to the ruling of tho judge a quo, refusing to permit the husband of the plaintiff to testify, on the ground that husband and wife are prohibited from testifying for or against each other. We think the ruling was correct. The husband must of necessity have testified either in favor or against his wife in this caso. C. C. art. 2281.

We are convinced from the evidence, that the plaintiff is the owner of the property, the sale whereof was enjoined.

It is therefore ordered that the judgment of the district court be affirmed, with costs of


author: Wyly, J.

text:
    No. 150.
    James A. Simpson v. J. J. Hope, Sheriff, et al.
    The court having jurisdiction over the parish where the defendant resides and has his domicile, has jurisdiction to stay the execution of a. judgment that has been rendered against him in another parish. On the trial of such injunction to stay the execution of the judgment on the ground that it was rendered without legal citation, parol evidence is admissible to show the fact. A judgment that has been rendered against a defendant without citation, it is absolutely void, and the fact may be shown whenever and wherever it is sought to be enforced against him.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. Land & Taylor, for plaintiff and appellant.

      JEgan, Williamson <& Wise, for defendants and appellees.
   Wyly, J.

The plaintiff appeals from the decree dissolving- the injunction sued out by him to restrain the execution of a judgment obtained in the district court of the parish of DeSoto, by Samuel Van''* Bibber, against him, on the ground that there was no citation, and because of the alleged slave consideration of the note on which the judgment was based.

Our attention is directed to the bill of exceptions taken by the plaintiff to the ruling of the court in rejecting- the parol evidence offered, by him to prove that said judgment was rendered without citation, and that the return of the sheriff was untrue. We think the court erred. Citation is the foundation of the action, and a judgment without it is an absolute nullity. The district court of the parish of Caddo had jurisdiction to ascertain this fact, notwithstanding the rendition of the judgment by the district court of the parish of DeSoto. It would be unreasonable to require a party against whom judgment, has been rendered without citation, to leave his domicile and to institute proceedings in a court of another jurisdiction in order to avoid the consequences of an absolute nullity. If the plaintiff was never legally before the court of the parish of DeSoto, as he proposes to-prove, and resided at the time in the parish of Caddo, as we infer from the citation and the sheriff’s return, why should he seek that tribunal in order to be released from a proceeding to which he was not a party, and which was an absolute nullity from the beginning.

It is therefore ordered that the judgment herein be annulled, and that the cause be remanded with instruction that the plaintiff be permitted to introduce proof in support of his plea that he was not cited, and was not a party to the judgment sought to be enforced against, him. It is further ordered appellees pay costs of appeal.


author: Taliaeebko, J.

text:
    No. 266.
    State v. Thomas Wilson.
    Xho ruling of the judge a quo, on a motion for a continuance of a criminal case, involves-, both questions of law and fact, and can not therefore be examined on appeal, because the* jurisdiction of the appellate court in criminal cases is limited to questions of law alone. ■ Constitution, article 74.
    As a general rule in criminal trials, the dying declarations of the person killed, and for whose murder the accused is on trial, are alone admissible, and the inquiries in such declarations must be confined to the circumstances and cause of Ms death. But if it bo shown as matter of fact that another person was mortally wounded in the same difficulty, or by the same shot which killed the other party for whose murder the accused is on trial, then, and in such case, the rule above stated, is so far relaxed as to admit in evidence on the trial, the dying declarations of such third person.
    If the deposition of a person in a criminal case does not show on its face that it is her dying declaration, it will not be excluded on that account, if it be shown by evidence aliunde, that it was her dying declaration.
    APPEAL from the Tenth Judicial District Court, parish of DeSoto.

      Levisce, J. Jas. 8. Ashton, District Attorney, for the State.

      JElam <& Wimple, for defendant and appellant.
   Taliaeebko, J.

The defendant having been indicted and tried for the crime of murder, was convicted and sentenced to hard labor in the penitentiary during life. Prom the judgment inflicting this punishment, the defendant has appealed. The grounds stated for this appeal are set forth in three bills of exceptions taken to the ruling of the court on the trial of the case.

The first is to the refusal of the judge to continue the case upon, affidavits of the accused in order to obtain testimony material and important to him in malting bis defense.

The second is to the admission of the dying declarations of Julia Dawson, as evidence against the accused, charged with the murder of William Dawson.

The third is to the admission in evidence of the deposition of Julia Dawson, taken before a justice of the peace, as the dying declaration of said Julia Dawson.

Continuances of cases, from the nature of things, must mainly depend upon the sound legal discretion of the judge. In determining a motion for continuance, ho must necessarily consider the facts and circumstances upon which the application is founded. The question, then, is one of law and fact; and in criminal cases this court has jurisdiction only of questions of law. This has been frequently decided, and is now settled.

The next point presented is of graver import. Mr. Philips, in his work on evidence, vol. I, p. 287, says: “The admissibility of dying declarations has been limited even in criminal cases; and a rule has been laid down that such 'declarations are generally admissible only where the death of the declarant is the subject of the inquiry, and where the circumstances of the death are the subject of his dying declaration.” Upon the authority of this rule the counsel of the accused objected to the introduction of the dying declarations of Julia Dawson, in evidence against the accused, charged with the murder'of William Dawson. In the bill of exceptions taken to the admission of this evidence, the judge aguo, assigns as his reasons for its admission, the following state of facto: “Before the prosecution had offered to prove the dying-declaration of Julia Dawson, it had been clearly established that the said Julia "was -wounded mortally by the same shot, or, at least at the same time that William Dawson (for whose murder the prisoner is on trial), was killed. And it was already well established that the circumstances of the killing of William Dawson and of the declarant were precisely the same, occurring at the same time and place, and in the same manner, and from the same cause; and the prosecutor having proved that the said Julia Dawson had subsequently died from the effect of the wound so given. The court admitted the dying declaration of the said Julia Dawson, because all the reasons that make dying declarations admissible in any case, apply in this case.”

It may bo remarked that the rule above quoted, as announced by Mr. Philips, does not seem to be absolutely exclusive in its terms. We see also from the same work of the learned writer, that this rule does not seem to have been implicitly followed in England. lie mentions a case, that of The King v. Baker, a parallel case, and closely resembling in its facts the one at bar, where it was held by Cotknan, J., after consultation with. Parke, B., that as it mas all one transaction the declarations were admissible. We concur in opinion with the judge a quo that the reasons for the admission of the dying declaration of Julia Dawson are cogent, and we see no good reason, under the state of facts shown, why it should not have been received.

In his third bill of exception the counsel of the accused objects that the deposition of Julia Dawson does not show on its face that it was intended and taken as her dying declaration. That the State did not show by parol that the instrument was taken or intended as her dying declaration, and that the evidence did not sufficiently show that the declaration was made m extremis.

The deposition was admitted on the ground that it might bo shown aliunde to be the dying declaration of the declarant. Parol proof established that the declarant at the time of making her declaration said she expected to die from the effect of her wound, and that in fact she did die from the effect of the wound in four hours after making her declaration. We think the ruling correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.


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    No. 257.
    Stewart & Theus v. M. A. Walsh, Sheriff, et al.
    If a mortgage lias been recorded in tbe parish where the lands mortgaged are supposed to be situatod, its validity wall not bo affected by the subsequent discovery, made in running tho boundary line, that they are situated in the adjoining parish.
    Tho court having jurisdiction over the parish where the mortgage is registered, and the chain of title to the property is recorded, has jurisdiction to enforce the mortgage by granting an order of seizure and sale of the property. In such a case tho mortgageor can not successfully urge in defense to the sale that the property mortgaged lies in another parish, more especially if it is shown that the mortgageor is a resident of the parish'where tho order has been granted. In the latter case, if it were shown that tho property mortgaged is situated in another parish, then the order might be directed to the sheriff of that parish.
    APPEAL from the Tenth Judicial District Court, parish of Caddo

      Levisee, J. Nutt & Leonard, for plaintiffs and appellants.

      A. L>. Land, for defendant and appellee.
   Howell, J.

Plaintiffs, as third possessors, have enjoined the seizure and sale of certain property in the suit of R. C. Hynson v. R. C. Cummings, pending in the parish of Caddo, on the grounds that the property seized is situated in the parish of Bossier, and the court in Caddo was withotit jurisdiction to grant the order of seizure and sale, and the sheriff of said parish is without authority to execute it. Defendant Hynson avers that the court of Caddo had jurisdiction, both of the person of the defendant and the land seized in the executory proceedings, and the act of mortgage held by him is recorded in said parish and contains the pact de non alienando.

Judgment was rendered in favor of defendant, dissolving the injunction, with damages, and plaintiffs appealed.

The land in question is situated on Shreve’s Island, formed, it seems, by a cut off in the Eed river some time anterior to the creation of the parish of Caddo in 1838, and the parish of Bossier in 1843, the dividing-line between which is, by the several acts creating them, the Eed river. The defendant contends that as the Eed river at this point must be ■considered that portion which was then and has always since been navigable, that is, the “cut off,” and not the “old river,” which was not and is not navigable, the Legislature intended that stream as navigated to be the boundary of Caddo, and necessarily embraced and .included the island within its limits or territory; while the plaintiffs urges the contrary, and claim to be supported by the established fact that the parish of Bossier has exercised jurisdiction over the said island, and has annually collected the parish taxes assessed upon the property thereon.

We do not deem it necessary or proper in this proceeding to attempt to settle the boundary between the two parishes, which are not before us. It is admitted that the acts of sales from several antecedent owners down to plaintiffs’, are recorded in books of conveyances in the recorder’s office of Caddo parish, and we are of opinion that, as to the parties to those acts at leaát, no insuperable objection can be urged to the jurisdiction of the court in Caddo to grant, and the authority to the sheriff to execute the order of seizure and sale against the said property, when, as in this case, the defendant in said proceeding- is a resident of that parish, and it is doubtful in which parish the land is situated. The parties, by’recording their titles in that parish only, may be considered as believing or treating the property to be within its limits, and we cas see nothing in the circumstances which would invalidate the executory proceedings obtained in tins instance.

It has been held that judgments or mortgages recorded in the parish where the lands were supposed to be situated, were not affected by the subsequent discovery, made iu running the boundary line, that they were in tire adjoining- parish, as the jurisdiction exerpised over the locus in quo is the result of a common error, which can not prejudice the rights acquired by mortgage creditors during- its continuance.

Applying- this principle here, if it should be found that the jurisdiction of Caddo parish, implied and recognized by the parties to the various sales in recording their titles and mortgages there, be proved to be an error, the said mortgage and property rights will not be prejudiced. And, besides, we can not see how the plaintiffs will be injured by the sale they injoin solely on this ground. They acquired no greater rights than their vendor, whose purchase was subject to the pact de non alienando, ana therefore if he passed a title at all to them,x it was subject under the above principle to the mortgage resting on it, and as the mortgageor resided in Caddo, the writ could be directed to tire sheriff of Bossier and be by him executed, if the land be really in the latter parish.

Judgment affirmed.


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    No. 272.
    Mattie M. Henderson, Executrix v. Walmsly & Co. et al.
    Parol evidence is inadmissible (except to prove fraud) to contradict tlio judicial records of a court. 3 An. G19; 12 An. 3-Í9.
    APPEAL from the Tenth Judicial District Court, parish of DeSoto'.

      Levisee, J. 8. L. Taylor and Jas. 8. Ashton, for plaintiff and appellee.

      Elam c& Wimple, for defendants and appellants.
   This case was tried hy a jury in the court Lelow

Ludeling, C. J.

It appears from the record, tliat in 18G5, Walmsly & Co. instituted suit against Mattie M. Henderson, executrix, for twenty hales of cotton, which he alleged were worth $4500; that a writ of sequestration was issued in said suit and twenty bales of cotton were seized under the writ. The sheriff’s retftns show that the cotton sequestered was appraised at $4000. The defendant in that suit having failed to bond the property, Walmsly & Co. executed their bond for $4000, according to law. and took tho cotton sequestered out of the possession of the sheriff. Walmsly & Co. failed to prove their right to said cotton, and there was judgment in' their favor for only one hundred dollars.

The piesenb suit is on the delivery bond of Walmsly & Co. given for the cotton sequestered.

The defense is, that the cotton claimed' in the sequestration suit was delivered hy Mattie M. Henderson, executrix, five thousand pounds thereof before, and |he balance after the suit was instituted, and that they received only nine hales of cotton under the sequestration.

On the trial of the cause, the defendants offered one Gooch (who is surety on the bond upon which this suit is brought) as a witness, to prove that only nine bales of 'cotton had been received under the sequestration and delivered to defendants,. Walmsly & Co., to which the plaintiff objected on the ground that parol evidence was inadmissible to contradict the judicial records of tho court; the objection was overruled, the evidence was received, and a hill of exceptions to this ruling was reserved.

The principle is elementary that the judicial records of a court can not he contradicted hy parol evidence except to prove fraud. 1 Gcn’l Ev., Nos. 275, 282 to 284; 1 Phil, on Ev., 548; 2 La. 48; 4 N. S. 176; 3 An. 619; 12 An. 319. The evidence should have-been excluded. But even, though the testimony of Gooch wore in tho record properly, it could not outweigh the judicial admission of Walmsly & Co., sworn to, to obtain the writ of sequestration, the returns of the sheriff and the recitals in the delivery bond signed by Walmsly and the witness, Gooch. There are other bills of exceptions in the record, which we consider unimportant to decide in this case.

Wo think the evidence in the record justifies a judgment in favor of tlie plaintiff for the amount of the bond, with legal interest from judicial demand.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that the plaintiff have judgment against Walmsly & Co., and W. D. Gooch, defendants, in solido, for the sum of four thousand dollars, with five per centum per annum interest from the seventeenth day of May, 1866, and the costs of courts.


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    No. 201.
    Gotlieb King v. Amanda J. Watts, Administratrix, et als.
    If a party has acquired a domicile in one parish, and removes therefrom to another parish, he may bo sued and cited in the parish of his former domicile within one year after he removes therefrom, unless ho has by public declaration in the manner provided by law declared tho place of his domicile.
    An injunction will not lie to stay tho execution of a judgment that has been rendered by the confession or consent of the attorneys of record to tho suit, if tho evidence shows that the attorneys woro authorized to file the answer, which formed tho basis of the consent judgment, hfor can tho action for tho nullity of such judgment bo maintained.
    APPEAL from tlie Fourteenth Judicial District Court, parish of Ouachita.

      Eay, J. Morrison & Farmer, for plaintiff and appellant.

      11. W. Eiehardson, for defendants and appellees.
   Howell, J.

This is au action to enjoin and annul a judgment in the case of J. T. Watts, Administrator, v. J. W. T. Richardson, G. King and W. H. Gale, on a promissory note made by said defendants, on the following grounds:

First — Plaintiff did not appear, was not represented, and did not authorize an attorney to represent him in said suit.

Second — Said judgment was not rendered by default regularly taken or on final proof made.

Third — lie neither confessed nor authorized any one to confess said judgment.

Fourth — Admitting he had an attorney, such attorney was not authorized to confess judgment or consent for one to be entered. The authority of an attorney at law does not include the power to confess or consent to a judgment.

Fifth — -The district court of Ouachita was without jurisdiction raiione materia, as plaintiff then resided, and had for six months resided in New Orleans, and no consent could be given to be sued in the parish of Ouachita.

The defense is a general denial, and a prayer for a dissolution of the injunction, with damages, .and from a judgment in favor of deiendants the plaintiff has appealed.

Some bills of exceptions are in the record, which from the view wo have taken of the case it is unnecessary to examine.

Admitting that the plaintiff resided in New Orleans, as alleged, at the institution of the suit, the district court of Ouachita was not under the circumstances without jurisdiction, the plaintiff being within the ■exception provided by art. 167 C. P. to the general rule in art. 162. The former provides that “if the defendant change his domicile, lie must be cited in the parish, where he lias resided within the last year, ■or within that where he has declared, in the manner prescribed by law, that he intended to have his domicile.” The plaintiff resided in the parish of Ouachita within the last year preceding the institution the suit, and he made no declaration in the manner prescribed by law where he intended to have his domicile. The article of the Constitution invoked by him relates to a political domicile or residence.

As to the question of appearance, the evidence legally admissible satisfies us that'the judgment was properly rendered. The plaintiff does not pretend that he had or has a just defense to the suit, which was brought against him and two others on a simple promissory note made.jointly and severally by them. He does not complain in-his petition of a want of citation, of which there was a service, while it ■appears lie accepted service of the petition and waived delay. On this point he denies that he authorized any one to appear for him. It is ¿satisfactorily shown that Messrs. Stubbs and Cobb, attorneys, had prepared an answer for J. N. T. Richardson, and before it was filed said Richardson, King and Gayle came into their office together, and informed them that they, the defendants, had consented with the ¿attorney for the plaintiff in the suit to a judgment with a stay of ■execution. Whereupon the answer was changed from the singular ■“defendant” to the plural “defendants,” and thus filed, and the judgment rendered accordingly. The judgment recites that, “by reason of the law and the evidence, and by further reason of the consent of the attorneys of the plaintiff and defendants in open' court, it is ordered,” ■etc. The stipulated stay of execution was embodied in the judgment. Everything indicating that the agreement between the three defendants and the attorney of the plaintiff in the suit was faithfully and properly carried out. We are strongly impressed with the belief that King, the plaintiff herein, was in the court room at the time the judgment was rendered. We do not understand him as expressly denying it. However this may be, we are constrained to hold that his conduct and actions in tlie interviews with the counsel of Watts and those of Richardson, were sufficient authority to the latter to file the answer and give the consent to the judgment as they did, for we understand that the proceeding as to taking and entering the judgment was had in open court in the presence of the attorneys for both parties. The facts and circumstances must be very plain and unequivocal to convict members of the bar of such unprofessional and untruthful conduct as plaintiff’s theory in this case implies.

We are unable to see any legal cause for enjoining or annulling the judgment in question.

Judgment affirmed.

Ludeling, C. J., recused.


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    No. 229.
    W. B. Boykin, Under Tutor, v. A. C. Hill, Tutor.
    If tlio tutor has failed to hare an inventory of tlio minor’s property made, and lias omitted to havo tlio mortgage in favor of the minor on the property of his tutor recorded, so that it will ho preserved, the tutor may be dismissed from office at the suit of the under tutor*. In a suit by the under tutor to dismiss the tutor from office for neglect of duty, tlio tutor can not bo heard to urge in his defense that it was the duty of tho under tutor to have the bond of tho tutor recorded, in order that the minor’s mortgage might be preserved on his, tho tutor’s property.
    APPEAL from the Eleventh Judicial District Court, parish of Clai-Lx. borne. I). B. nays, Special Judge.

      James W. Wilson, for plaintiff and appellee.

      A. 0. Hill, for defendant and appellant.
   Howell, J.

This suit was instituted in March, 1871, by the under tutor of the minor, Jessie E. Jones, to remove her tutor, who was. appointed in January, 1867, on the following grounds:

Firs Í — Tho said tutor has neglected to cause an inventory to bomade of the minor’s property within the time prescribed by law.

Second — He has neglected to have his bond as tutor, or any certificate showing the amount of property in his hands belonging to said, minor, recorded in the recorder’s office of Claiborne or other parish' where he owns immovable property, so as to preserve the minor’s, mortgages and privileges.

Third — He has failed to file annual accounts of his tutorship.

The defendant admits the matters of fact, but denies that they are-sufficient of themselves, iu law, to require his removal, and contends-that the interests of the minor are amply protected by the bond furnished, though not recorded in the recorder’s office; that it was equally ¶ tlie duty of the under tutor to cause said bond to be recorded, and he-' can not be heard to urge such neglect against defendant, and that the law does not require but simply authorizes annual accounts to bo filed..

On the trial he objected to plaintiff’s right to prove by the defendant, himself that a specific sum of money had been received by him as-tutor, on the grounds of irrelevancy and want of allegation of any .specific sum. Tiie allegation is that defendant had received a considerable amount of money belonging to the minor, which authorized proof of the amount actually or known to be received, and for which defendant was liable, and which was endangered by his alleged neglect. The amount proven is largely above five hundred dollars, and hence ■the motion to dismiss must be overruled.

Article 350, It. C. C., a new article, says: “The tutor is bound to Tender an annual account of his administration, reckoning from the •day of his appointment;” but his failure to do so is not necessarily a cause for removal, although it may under some circumstances, be taken into consideration.

Articles 303 and 304, however, specially declare that persons are liable to be removed from the tutorship, who have neglected to cause an inventory to be made of the minor’s property within the time prescribed by law, and who neglect to cause to be inscribed, in the manner required by law. the evidence of the minor’s legal mortgage against his •tutor.

We learn from the record that in 1859 the mother and stepfather of -the minor were appointed tutrix and cotutor; that in 1867 their tutor•ship was admitted to bo vacant by insolvency and resignation, and the defendant, on the recommendation of a family meeting, was appointed tutor, and gave bond in the sum of $10,000, which was afterwards, in •the same year, increased to $20,000, because of some legal proceedings in tho State of Maryland, where the larger portion of the minor’s property is situated. But it does not appear that any inventory of her ■estate or that of her father has ever been made. If none had been made when the defendant was appointed, it was his duty under the law to cause one to be made. Art. 329, Code of 1825; art. 310, R. C. C. His neglect of this duty renders him liable to removal, and in ■connection with his failure to cause his bond or other evidence of the minor’s mortgage to be inscribed, as directed by the act of 1869, page 114, by which the mortgage is lost under article 123 of the Constitution, constrains us to concur with the judge a quo that sufficient reason exists for his removal under the requirements of the law.

As to the position that the interests of the minor are amply protected by tho bond furnished, it is enough to say that the law maker ■seems to think differently, and requires the additional protection of a mortgage upon the tutor’s property to the extent of the amount of the bond, the surety and principal on which may not always be solvent.

The neglect of the under tutor to perform his duty to make the required inscription can not justify the defendant, or debar the former from presenting the matter to the judge who authorized him to institute this suit.

Judgment affirmed.


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    No. 191.
    Citizens’ Bank of Louisiana v. Isabella A. Fluker, Administratrix.—Third Opposition of L. M. B. Rind and Husband.
    hi this caso ifc appears tliafe a mortgage was given to secure a stock loan to the Citizens’ Bank, dated in 1839; that in 1842 the bank foreclosed its mortgage and sold the property for a~i amount above tho stock loan; that subsequently to tho execution of the mortgage to the bank, and before tlie sale by the bank, the mortgageor became tutor to some minor heirs, and a tacit mortgage attached to his property for the faithful administration thereof. Tho purchaser of tho property at sheriff sale soon thereafter executed another mortgage on. tho same piece of property in favor of the Citizens’ Bank, to secure a slock loan in favor of himself. This latter mortgage the bank sought to foreclose. The heirs, who claimed a tacit mortgage on the property of prior date to the execution of this second moitgage to tho hank, which tacit mortgage was duly recorded in 1869, -intervened by way of third opposition, and claimed the proceeds of the sale of the property as first mortgage creditors. Held — That nnder this state of facts, the heirs having shown a prior mortgage cf •superior rank to that of the hank on the property seized, they were entitled to he paid by preference out of the proceeds of the sale.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Bay, J. Morrison <& Farmer, for plaintiff and appellant.
    TF. J. Q. Faker, for third opponents, 'appellees.
   Taliaferro, J.

The litigation involved in this case was to ,spme ■extent before this court at its last term at Monroe, July, 1870. 22 An. 482. Tho question now to he determined — tlie priority of mortgage light as between the bank and Mrs. Rind — presents itself in this ease. Tho tacit mortgage claimed by the opponent against the “Arpen” tract of land arose, as she avers, from a large indebtedness to her by her father, Nicholas' D. Rind, who, in his capacity of natural tutor, received on her account from the executors of Thomas H. Martin a sum exceeding $12,000. Her tutor’s receipts, given at various times for -1 lie funds so received, wore recorded in the mortgage office of the parish of Ouachita in 1869, to preserve her tacit mortgage.

This Arpón ” tract of land, with a number of slaves, was mortgaged in 1838 to the Citizens’ Bank by S. W. Downs and James H. Brigham, partners in the business of planting. By this act of mortgage Downs and Brigham became stockholders in tho bank, each for twenty-five shares of the capital stock of the company, and were thereby entitled to wbat are called loans. Brigham and Downs dissolved partnership -in September, 1838, and by tlie act of partition Brigbam became owner -of the property, assuming- to pay the mortgage to the bank, so far as it secured bis seventy-five shares of stock. In April, 1839, Brigbam sold "tho property to Rind, tlie father of the opponent, and Rind assumed to pay tlie loan of Brigbam, obtained from tlie bank. Tlie deed was recorded in the parish of Ouachita on the eighteenth of May, 1839. Rind failing to make payment, the bank foreclosed its mortgage on the ■property, which was sold at sheriff’s sale on the sixth of August, 1B42. The sheriff’s return shows that lie seized and sold the land, slaves, farming utensils and seventy-five shares of tlie capital stock of tlie ■Citizens’ Bank, and that the property was purchased by W. W. Farmer, at the price of $6066 66$- in cash, and that the amount of debt, interest, and cost due the bank was $3613 61, which was credited upon the order of seizure. The difference between the bank debt and the amount bid at the sale is $2453 05, which was left in the hands of Farmer, over and above the payment of the stock loan to Brigham. On the thirteenth of August, 1842, Farmer and wife executed a mortgage in favor of the bank, The act recites that having purchased seventy-five shares of the capital stock of the Citizens’ Bank, of $100 each, making the sum of $7500, and also that the mortgageors had obtained a loan of $1800, they mortgaged a certain tracfi of land in the parish of Ouachita — the “Arpen” tract — which W. W. Farmer acquired by purchase at sheriff sale on the sixth of August, 1842, at the suit of the Citizens’ Bank v. N. D. Rind, to secure these shares in the capital stock of said bank, and also to secure the principal and interest on the loan raised or to he raised to form the capital of said bank, by the issue of bonds, signed by the G-overnor of the State of Louisiana, in favor of the Citizens’’ Bapk, etc. Farmer sold the land to a Miss McOaleb, and she to Daniel. J. Fluker. After Fluker’s death, the bank obtained an order of seizure and sale against his administratrix, the defendant in this suit. This order is predicated upon the undischarged obligations of -Farmer to the hank, entered into as we have seen, in August, 1842.

Claiming to have against the “Arpen” tract of land seized by the hank, a tacit mortgage of superior rank to that of the bank, the opponent comes forward and demands to be paid out of tho proceeds of sale of the mortgaged property the amount of her claims so secured by taeit mortgage alleged to be of anterior date to the hank’s mortgage

Tho bank, in answer to this opposition, denies that the opponent has. auy mortgage on the property seized, and if she has, it is of subsequent, date and inferior rank to the mortgage of the bank.

There was judgment in favor of the third opponent, ordering that, there he paid over to her the sum of $3500 of the proceeds of sale of the “ Arpen” tract. From this judgment the bank has appealed.

We think the judgment correct. The proceeds of sale of the property in 1842 satisfied the mortgage given by Brigham to secure the loan to him on his stock, and left an overplus of $2453 05. It is shown that, the tacit mortgage of the third opponent dates and takes rank for much the largest part of the tutor’s indebtedness from the year 1839; consequently, her mortgage being next in' rank to that of the bank for the. stock loan to Brigham, she is entitled to this sum remaining after the stock loan was paid. True it is the property was sold subject to what, is called the stock mortgage. By the organization of the hank and the principles upon which it was chartered, a subsisting mortgage was to continue to secure indebtedness to the bank, and also to secure the. bonds issued by the State in aid of the bank.

After paying the stock loan mortgage of Bwgkam by tlie sale of tho-property on tho sixth of August, 1842, there remained tho balance we have before noticed in tlie hands of Farmer. Tho bank took the mortgage from Fanner on tho fourteenth of August, 1842, eight days after the sale, upon the same property lie purchased at the sale, to secure payment for the seventy-five shares of stock sold as Brigham’s and purchased by Farmer, and also to secure a stock loan to him. Under the aspect tlie case presents, we conclude the decision had in the court below shoirld be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.

Rehearing refused.


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    No. 198.
    Sarah A. Bell and Husband v. B. Silbernagel & Co.
    The authorization of the wife by the lmsbaud to institute and prosecute a suit in the court below includes tho authority to take an appoal from the judgment rendered against tlie wife.
    An action to annul a judgment can not bo maintained if all the parties to the suit in which, it was rendered are not made parties to the suit to annul.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Bay, J. Newton & Hall and JD. O. Morgan, for plaintiff and appellant.

      Todd c6 Brigham, for defendants and appellees.
   Wyly, J.

The motion to dismiss this appeal because tlie plaintiff, the appellant, a married woman, is not authorized by her husband or the court to prosecute it, is not well taken.

Her husband having- made himself a party to the suit hclow for the express purpose of authorizing his wife, authorized all orders obtained in that court in her behalf, among them was the order of appeal obtained on motion.

We think authority to prosecute a suit means authority to prosecute-it to completion and in all courts necessary to its completion.

The plaintiff enjoins tho execution of tho judgment which she confessed in favor of the defendants, B. Silbernagel & Co., in December, 1863, and seeks to annul said judgment upon the grounds stated in her petition.

The defendant, B. Silbernagel, excepted, on the ground that the other members of the firm of B. Silbernagel & Co. (now in liquidation) and Go-owners of the judgment sought to he annulled, have not been cited and their names have not even been mentioned in the petition of the plaintiff.

On this ex-cepitiou the suit was dismissed, and tho plaintiff appeals. We think the court did not err. If the plaintiff desired to annul tlie judgment, she should have caused- all the co-owners thereof to be made parties to licr suit. Because the names of the members of the firm of B. Silbernagel & Co. wore not set out in the judgment she •confessed, which was not necessary in that case, is no reason why she •should bo permitted to set it aside, and thereby destitute the owners of their property without notice.

The exception setting out the names of the co-owners of the judgment, the members of the firm of B. Silbernagel (in liquidation), was filed on the seventeenth day of December, I860; it was not tried and disposed of till the suit was dismissed thereon, October 21, 1870.

The plaintiff had for nearly one year notice that the co-owners of the judgment were not made parties to her action to annul it, and she ■■seems to have made no effort to bring the parties into court. Such .negligence in practice will not be sanctioned by the court.

Judgment affirmed.


author: .Taliaferro, J.

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    No. 199.
    J. Graham, Auditor, v. G. W. & J. T. Tignor et al.
    .Prescription runs against all persons except sucli as are included in some exception established by law. C. C. 3540. Tlie State does not fall within any of the express exceptions to the current of inscription.
    Promissory notes given'in favor of the Auditor of Public Accounts for the sale of school lands belonging to the State, are therefore prescribed by five years, the same as if they belonged to an individual.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne.

      Egan, J. J. D. Watkins, for plaintiff and appellant.

      J. W. Wilson, lor defendants aud appellees.
   .Taliaferro, J.

Two of the defendants in this case having puv~ •chased, under an act of the Legislature approved eighteenth March, 1858, one-half of the sixteenth or school section of land within one of the townships lying in the parish of Claiborne, executed, in solido with their surety, nine several promissory notes, each for $88, dated first 'October, 1859, and payable consecutively, one noto each year, on the first of October, with, its accruing interest from date, with special mortgage on the land purchased. These notes wore, in conformity witli law, drawn payable to E. W. Robertson, then Auditor of Public Accounts, or his successors in office. None of these notes having been paid, the present plgintiff, in his official capacity, brings this suit to •enforce payment.

The defense is prescription. The judge a quo sustained the plea as to the first six notes of the series, and rendered judgment against 4he defendants for the remaining three, according to their tenor, hut without enforcement of the mortgage. Prom this judgment the plaintiff has appealed.

The sole question in this case is, does prescription run against the •State on the notes sued upon 9 The defendants rely upon articles 3521 and. 3540 of the Civil Code, and upon several decisions of the Supreme Court of the State, and especially upon that of Pepper v. Dunlap, 9 An. 137. Article 3521 declares that “prescription runs against all persons, unless they are included in some exception established by law.” Article 3540 declares that “all actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether.negotiable or otherwise, are prescribed by five years.” It is held by the defendants that these articles of the Civil Code have a clear and direct application to the case at bar, the State being a body politic or person, and the action being' upon a promissory note.

Our Code seems clearly to determine that prescription applies without discrimination unless where there are express exceptions. We find no express exception in favor of the State. In the case presented, we think prescription does apply. The notes sued upon are secured by mortgage, and the plaintiff prays that the mortgage be recognized and enforced. We think the court a qua should have so decreed, and in -this respect the judgment should bo amended..

It 'is therefore ordered, adjudged and decreed that the judgment of the district court be amended so as to embrace the order now rendered, that the mortgage of plaintiff be recognized and enforced as prayed for, and that the lands stipulated in the petition of plaintiff and the act of mortgage made part thereof, be seized and sold to pay and satisfy ■the three promissory notes and interest for which judgment was rendered by the court a qua, and, as thus amended, the judgment be affirmed, with costs in both courts.


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    No. 207.
    Amanda J. Spires, Wife, v. D. S. McKelvy, her Husban— John Chaffe & Bro., Intervenors.
    A judgment of separation of property between tbe busband and wife is YOid if not followed by a bona fide execution thereof, either by payment so far as the husband’s estate can meet her demands, which must appear by authentic act, or by an uninterrupted suit to enforce payment.
    Tf the wife has obtained judgment of separation of property from her husband, which has become Yoid on account of non-execution thereof, she is at liberty to disregard it entirely and commence proceedings lor a separation de novo. 6 An. 213.
    APPEAL from the Fourteenth Judicial District Court, parish of Bichland.

      Hay, J. Wells <& Williams, for plaintiff and appellee/

      S. W. Drake, for intervenors, appellants.
   Howell, J.

In June, 1870, the plaintiff instituted this suit to dissolve the community between herself and her husband and to recover, with mortgage, tbe sum of $1500 (less $380 paid on account), proceeds of cotton-sold by him, stating, in her petition, that in April, 1868, she obtained judgment against Mm for a separation of property and the whole of said amount claimed herein; “ but ” (in the words of thepctition) “being uninstructed as to her duty she did not have the-same published, nor did she have execution issued until said judgment had become a nullity; hence she brings this suit de novo, showing that she has preserved her mortgage rights and is entitled to have them, enforced.”

The answer is a general denial. John Chaffe & Bro., mortgage-creditors ot the husband, intervened to oppose plaintiff’s demand.. charging the snit to be fraudulent and collusive; setting up tbe plea of res judicata as between plaintiff and defendant, and denying that plaintiff has any cause of action against her husband.

On the trial plaintiff introduced in evidence the judgment obtained by her in April, 1868, awarding her a separation of property and tbe sum of $1500, with five per cent, interest from twentieth January,. 1868, and mortgage to date from first of April, 1866. This judgment was recorded on the eighth November, I860. She also introduced the following agreement:

“ It is agreed by the counsel for the plaintiff and intervenors in the-above case, that the amount claimed by the plaintiff from McKelvy, her husband, is for cotton, which McKelvy used and which formed part of the succession of John Stout, former husband of plaintiff, and which was gathered on said Stout’s place in tbe fall, after his death in the summer of 1862, his wife, the plaintiff herein, having a community interest in said cotton and being administratrix for John Stout’s estate at the time the cotton was gathered. It is further admitted that McKelvy received and used said cotton in April, 1866.’’

The defendant is shown to be embarrassed witli debt.

Judgment was rendered in favor of plaintiff, dissolving the community and for $1120, with interest from date of filing' petition, and mortgage on defendant’s property to date from first May, 1866, and dismissing the intervention; from which judgment intervenors appealed.

The plea of res judicata, if sustained, would leave plaintiff with a good and valid judgment of separation of property and for tho snni adjudged to her, with all her mortgage rights upon her husband’s, property, to date from first April, 1866, which would be more effective,, probably, against the intervenors than the one sought in this suit.. However this may bo, the plea does not seem to be well made. In the case of Dawson v. Creditors, 6 An. 213, the court recognized the right of a wife to disregard a judgment, previously obtained, but not published and executed, and to sue cíe novo, on the principle that said judgment was a nullity. It seems to be well settled that a decree of separation, whatever its terms, does not separate the parties in prop•erty. It entitles tlie wife to a separation, but will be without effect, ■even between the parties, if not followed by a bona fide execution •either by payment of her claims, so far as the husband's estate can meet them, made to appear by authentic act, or by a non-interrupt-ed ..suit to obtain payment.

Upon the merits, the judgment does not seem to be fully sustained. From the statement of facts, agreed to by counsel, it seems that tlio •cotton, sold by defendant for his own benefit, belonged to tho succession of a former husband of plaintiff and administered by her. It does not ajipcar that this succession had been settled and all the property vested in plaintiff. The most that can be presumed in her favor is that one-half of the community belonged to her and not that one particular niece of property or the half of any particular sum belonged to her.

Considering the somewhat irregular pleadings and manacement of this case, we think justice requires it to bo remanded to enable the parties to establish their rights with more certainty.

It is therefore ordered that the judgment appealed from be reversed and this cause remanded to bo proceeded with in accordance to law, plaintiff and appellee to pay costs of appeal.


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    No. 188.
    Julia Christian, Administratrix, et als., v. Alvinia C. Lassiter and Husband.
    'Tlio issuing of an execution against the administrator in liis individual capacity, on his failure to j>ay the judgment creditors of tho succession out of the funds of tlio estate adjudged to ho in his hands, is a sufficient comjilianco with the requirements of articles 1055, 1056 and 1057 of the Codo of Practice to authorize proceedings hy tho creditor against the surety on the administrator’s bond.
    '.Tn such a suit the surety on the bond can not plead tho defense that the debt on which tho judgment against the succession is based was prescribed at tho time of its rendition.
    APPEAL from tile Fourteenth Judicial District Court, parish of Morehouse.

      Bay, J. Todd <& Brigham and Newton & Nall, for plaintiffs and appellees.

      8. G. Parsons and B. W. Biehardson, for ■defendants and appellants.
   Wyly, J.

The plaintiffs, Julia Christian, administratrix, Charles H. Morrison and Mary A. E. Wroten, as surviving partner in community of E. B. Wroten, deceased, usufructuary and tutrix of her .miuor children; have instituted this suit against tho defendants, the representatives of W. R. Lassiter, deceased, to enforce the collection •of judgments which they hold against the succession of Reuben McMieliael, Lassiter being one of the sureties on the bond of James N. McMieliael, the administrator of said estate. The facts are correctly stated by the plaintiffs and are the following-:

Mrs. Julia A. Christian, administratrix of the succession 'of Charles A. Christian, deceased, obtained a judgment against the succession of Reuben McMichael, deceased, represented by James N. McMichael', as-administrator, in suit No. 3645 on the doclcet of the Twelfth District Court, parish of Morehouse, styled Julia A. Christian, administratrix, v. James N. McMichael, administrator, for the sum of $1390, with eight per cent, per annum interest on $1250, from, the first January, 1860, and on $140 of said amount, the same rate of interest from the sixth of March, 1861, together with all costs of suit.

E. B. Wroten, now deceased, obtained the judgments in the suit of E. B. Wroten v. James N. McMichael et al., numbered respectively 3400 and 3490 on the docket of the Twelfth District Court, parish of Morehouse, amounting in the aggregate to the sum of $2540, with eight per cent, interest on the sum of $1520, from the first of January,. 1861; and from the first of January, 1861, to the first of March, 1861, a like rate of interest on the same amount; and the same -rate of interest on $1130, from the first of March, 1861, and costs of both suits.

C. II. Morrison, the other plaintiff, held two mortgaged notes, dated Bastrop, Louisiana, December 15, 1859, for $400 each, and duo, respectively, on or before the first day of January, 1861, and 1862, and payable to the said Morrison, or bearer, with eight per cent, interest from date until paid, and signed by R. McMichael.

On the thirtieth day of May, 1866, James N. McMichael, administrator, filed in the Twelfth District Court of the parish of Morehouse a provisional account of his administration of the estate of the said Reuben McMichael, deceased, which said account was opposed by all these plain tiffs on various grounds, as will be seen. Opposition of Julia A. Christian, administratrix, and amended opposition; opposition of E. B. Wroten; opposition of Morrison.

All these oppositions were tried in the parish court of the parish of Morehouse and judgment rendered thereon on the twenty-sixth day of May, 1869, and in this judgment the account of the administrator was-corrected in many particulars, and $17,490 was the amount shown to be in the hands of J. N. McMichael, administrator of the funds of the estate.

It was ordered that the several oppositions filed be sustained and the administrator required to pay to plaintiffs their several amounts, as set forth and claimed in this suit.

Notice of this judgment was served on James N. McMichael on the seventh day of June, 1869, and the return of the sheriff thereon states: “I made personal service by handing J. N. McMichael, administrator,, a certified copy of this notice of judgment, and at same time I asked him if he intended paying this judgment, or the claims on which it was rendered, and he replied that he could not pay it — that he had. nothing to pay with.’’

The plaintiff then caused execution to issue against Jantes N.. McMichael, and the sheriff was unable to find any property belonging to him to bo seized under the writ, after calling on M-.Michael and the plaintiffs in this suit, to point out property; and each and all of them failing to point out property, he then called on L. IX Williams and Alvinia C. Lassiter, wife of Williams, to point out property belonging to J. N. McMichael, to be seized under the writ, which they failed to. do, and the same was returned in no part satisfied.

Having failed entirely to find property out of which to enforce their rights under tlicir judgments and cldims, as heroin sot forth, plaintiffs, have instituted this suit against Alvinia C. Lassiter and husband,, representing the only surety on the bond of said administrator in said jmrish.

The petition alleges there has been a breach of the said bond given by James N. McMichael, as administrator; that the said bond was executed on the ninth of January, 1862, for the sum of $30,000; that. W. K. Lassiter, deceased, was one of the sureties on the same; that he left an only child, the said Alvinia C. Lassiter, wife of L. D. Williams,, both of whom, immediately upon his death, took possession of his entire estate, and by their acts and declarations have accepted the same, purely and simply, and made themselves liable for all the debts of his succession.

The defense set up is embodied in two exceptions filed and in the answer, in substance as follows:

“That this suit was premature, plaintiffs not having taken thenecessai-y stops to enforce payment of the principal obligor, James N. McMichael, no motion having been made by them compelling the said McMichael, as administrator, to file a brief statement of his condition with regard to the succession of Beuben McMichael, deceased, and no. execution could legally issue against said administrator until this had been done; denies that any legal notice of plaintiffs’ judgment was served on the administrator; that E. B. Wroten, whose succession is. not made a party, is without any legal representative; that the debts of Christian and Morrison were prescribed when the .judgments were, rendered, and the prescription of five years pleaded; that the judgments of the parish and district courts are erroneous and those of the former void, for want of jurisdiction,” etc.

. Upon these issues, the parties went to trial, and there was judgmentiu favor of Christian, administratrix, and Mrs. Wroten, for the amount of their judgments, interests and costs; and there was judgment in favor of the defendants, Lassiter and husband, and against plaintiff, Morrison, rejecting his demand, with costs.

¿From this judgment in favor of plaintiffs, the defendants have appealed, and the plaintiff, Morrison, has also appealed.

As to the prematurity of the suit, the plaintiffs not having taken necessary steps to enforce payment against the administrator, the principal obligor, according to articles 1055, 1056, 1057, Code of Practice, we will remark the record of this case shows a sufficient compliance with those articles. No motion was necessary to compel McMieliael, the administrator, to file a brief statement of his condition in order to ascertain the amount of funds of the succession in his hands. The account which he filed and which was homologated after the trial of the oppositions of the plaintiffs, showed that he had $17,490, more than sufficient to pay them. He was duly notified of the judgment on the oppositions, in which lie was required to pay plaintiffs out of the funds shown to be in his hands.

After his refusal to pay thorn, as ordered by the court, they caused ■execution to issue against him, individually, and used every means to enforce payment from him before instituting this suit against the heir ■of the surety on the administrator’s bond.

In Wells v. Roach, 10 An. 543, where the curator had died, it was ■deemed sufficient to take a rule on his administrator to compel payaent of the judgment against him for funds found to be due by the ■curator. On the discharge of the rule that the administrator of the ■curator had no funds, suit against the sureties on the bond of the delinquent curator was held not to be premature. In that case, as in ■this, the question was whether “the necessary steps had been taken” to enforce payment against the principal obligor before suing his sureties 1

As to the prescription of the claims on which the judgments of the •opponents are based, we will remark that is no defense to the suit on the bond of the administrator against his surety. The surety has no interest in pleading a prescription that does not inure to the benefit of his principal obligor, the administrator. The prescription of the claims of the olaintiffs was for the benefit of the succession, the heirs or creditors.

If the administrator holds $17,490 for the estate, it is to mm immaterial to whom the court directs it to be paid, whether to the creditors or heirs. He is bound to pay it to some one on the order of fhe court. This is his duty as legal mandatory. And the obligation of the surety on his bond is that ho will perform his duty; that he will faithfully keep the funds intrusted to him and apply them as directed by the court. Succession of Johnston, 1 An. 76.

The other objections urged by the defendants are unworthy of serious consideration. 20 An. 512; 11 An. 78.

It is therefore ordered that the judgment herein, as to the plaintiff, Julia Christian, administratrix, and the plaintiff, Mary A. E. Wroten, tutrix, etc., be affirmed, and as to the plaintiff, Morrison, that it be •annulled; and it is now ordered that Charles H. Morrison recover judgment against the defendant, Alvinia C. Lassiter, for eight hundred •dollars, with eight per cent, per annum interest thereon from fifteenth December, 1859, and costs.

It is further ordered that the appellant, Alvinia C. Lassiter, pay •costs of appeal.


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    No. 261.
    John N. Catlett v. Heffner & Likens.
    A suit brought on an obligation that is not duo, is premature, and should be dismissed, leaving the party to his remedy when the obligation matures. C. P. 158. A sequestration may, however, issue where a privilege exists, notwithstanding the principal obligation is not yet due. C. P. 275.
    APPEAL from the Tenth Judicial District of Caddo.
    Levisce, J. Nutt c& Leonard, for plaintiff and appellee.

      A. W. 0. Hicks, for defendants and appellants.
   Wyly, J.

The case is correctly stated by the defendant Heffner and is the following:

This suit was filed on the twenty-sixth November, 1868, to enforce the collection of a note for $1038 43, due the first of January, thereafter, and to have enforced a mortgage upon one acre of land, and fixtures and appurtenances, given to secure the payment of the note. The plaintiff alleges that the defendant had unlawfully removed a saw and grist mill, a portion of the property mortgaged, off the premises to another place within the jurisdiction of the court, and that he fears and believes they will remove said property out of the State before he can have the benefit of his mortgage, and that he fears and believes they will conceal, part with or dispose of said property during- the pendency of the suit, and prays for writs of sequestration, directing the sheriff to sequester and take into his possession said property, and, after all legal notices and delays, that he have judgment against defendants, in solido, for said sum and interest, and that his mortgage he recognized and enforced. On the same day the judge ordered writs of sequestration to ho issued. The writ was issued, and the sheriff sequestered one saw mill, machinery and tackle in the possession ot defendant, Heffne”

The defendants appeared and pleaded the prematurity of the action, and prayed its dismissal. On the same day they also filed a motion to dissolve the writs of sequestration. On the eighteenth of February, 1870, the defendant Heffner reconvened for damages against the plaiutiff, and the court ordered the exception, motion to dissolve, and ploa in reconvention to he referred to the merits. Death of defendant Likens was suggested, and leave granted to revive. Upon these pleadings the court rendered judgment for the amount of the note, and ordered the property mortgaged to be sold, and sustained the writ of sequestration, and rejected tlie reconventional demand, and defendant Heffner appealed.

We think the plea of the prematurity of the action should have prevailed. The note which tlie plaintiff declared was due him on the day the suit was filed, November 26, 1868, was not due till the first day of January, 1869. Tlie prayer of the petition is for a writ of sequestration, that said Heffner & Likens “bo cited to answer hereto, and after legal notice and delays, your petitioner have judgment against them, in solido, for said sum, and interest and costs, recognizing his mortgage as herein set forth, and ordering the same to be enforced,” etc.

The suit is to collect the debt, to have the mortgage recognized, and to sequester the property. Because the plaintiff, under the state of facts contemplated by article 275 C. P. may sequester the mortgaged property to prevent its removal from the State “ before he can have the benefit of his mortgage,” whether the same be due or not, does not give him greater rights than the mortgage gave or the debtors have consented he should have, as to the timo at which he may enforce payment. The remedy contemplated by articles 208 and 275 C. P. is conservatory only; it is for the purpose of preventing the removal of the property from the State before the mortgagee “can have the benefit ” of ids special mortgage. They were not intended to alter the stipulation in the contract fixing tlie date at which tlie obligation was to mature. That was the accident of the contract, which it was lawful for the parties to agree upon. In this case tlie law which the parties made to themselves provides that the debt shall become due January 1, 1869, and article .158 C. P. says: “When the demand is premature, that is to say, when the action has been brought before the debt has become due, the suit must be dismissed, leaviug to the party his right to bring his action in due time.”

Wo do not understand that articles 208 and 275 C. P. were intended to modify or make an exception to the rule announced in article 158.

It is true, in the case before us, the debt had matured before the judgment was rendered. But if the principle contended for by tbe plaintiff bo acknowledged, it would bo extending these articles for a purpose not contemplated by them. Any fact or circumstance justifying the application of the remedy provided in them, would have the practical effect of altering the contract or the terms of the principal obligation The accessory obligation of mortgage or the remedy provided therefor, would annul a material stipulation in the principal obligation, to wit, the date of payment consented to by the parties. If a debtor may be sued two months before his note is due, because of the application of a remedy appertaining to the accessory right of mortgage, he may, on the same principle, be sued ten years before the debt has become exigible. The court would thus be called upon to enforce an obligation that the parties have consented should not be enforced till a given time in the future, and practically to enforce a contract not made by the parties. As the defendants could not be summoned to trial for judgment on the debt before it was duo, the demand should be dismissed under article 158 C. P. This would not dismiss the demand for a sequestration, which was not premature, but was permitted by article 275 C. P. But this demand, it appears from the evidence, was made without sufficient cause. The defendants were not about to remove the property from the State. The sequestration should therefore be dismissed, for want of just cause.

It is therefore ordered that the judgment herein be annulled, and that this suit be dismissed at plaintiff’s costs, without prejudice to his. right to bring his action in due time. C. P. 158.


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    No. 233.
    C. Yale, Jr., & Co. v. J. G. Randle & Co.
    Any party interested in a judgment may have tke same rovivecl by causing the judgment debtor to bo cited before the court which ronderod the judgment, before proscription has accrued. The restraining of the execution of a judgment by a writ of injunction sued out by the judgment debtor, does not interrupt the current of prescription. If, therefore, more than ton years are allowed to elapse from the date of the rendition of the judgment, without causing the judgment debtor to bo cited, the judgment is prescribed.
    APPEAL from the Eleventh Judicial District Court, parish of Jackson.
    ¡Egan, J. James ¡E. Hamlett and John Young, for plaintiffs and appellants.

      ¡Richardson & McEnery, for defendants and appellees.
   Ludeling, C. J.

This is a suit to revive a judgment obtained on the first of October, 1858. The petitidn was filed on the second of August, 1870, and on the same day service of “notice of the proceedings” was acknowledged for one of the defendants, and citation was-served on the other on the fourth of August, 1870. More than ten years had elapsed between the rendition of the judgment and the institution of this suit, and the judgment was extinguished by the prescription of ton years, which has been pleaded in this case, unless, in the interim the course of prescription had been interrupted by a citation to revive the judgment.

“Hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment; provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law to the defendant or his representatives, from the court which rendered tlie judgment,” etc. Acts of 1853, p. 250.

It is contended that inasmuch as the execution of the judgment was restrained by an injunction sued out by the defendants, prescription was suspended during the pendency of that suit, under the equitable maxim, “ contra non valenUm agere non currit jprescrijotio.” A sufficient answer to this is that prescription is the creature of positive law, which can not be overruled by a principle of equity. The law is mandatory, and courts are bound to obey it. No citation was issued to the defendants, in a suit to revive the judgment, until long after •the judgment had been extinguished by proscription.

It is therefore ordered and adjudged that the judgment of the court it qua be affirmed, with costs of appeal.


author: Wylt, J.

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    No. 242
    Eliza W. Wooley v. E. K. Russ, Sheriff, et al.
    A parish judge who grants an order of injunction from the district court, in the absence from the parish of the district judge, has no power or authority afterward to set aside such order on bond.
    APPEAL from the Tenth Judicial District Court, parish of Bossier.

      Levisee, J. Griffin <& Snider, for appellees.

      J. D, Watlcins, for third opponents, appellants.
   Wylt, J.

On the twentieth day of August, 1870, the plaintiff filed ;a third opposition, and enjoined E. K. Russ, sheriff", from selling the land described in the petition to satisfy the writ of seizure of Carroll, Hoy & Co. v. the Succession of Samuel Harrison, deceased, on the .ground that she acquired the property at the succession sale of said .Samuel Harrison, her deceased husband, being a partner in community of the deceased and administratrix of his succession; that said sale was regular and legal; that by it the mortgage given to said Carroll, Hoy & Co. by the deceased became extinguished. She further avers ¿hat all the property of said succession has been sold, and the proceeds thereof applied to the payment of the debts set out on the tableau; that her final account was duly homologated and the administration discharged without opposition.

The suit was filed in the district court, and the injunction was •granted by the parish judge, the district judge being absent. Citation was served upoD the sheriff, hut not on the other defendants, Carroll, Hoy & Co. On the third of September, 1870, the injunction was ■ordered to he set aside by the parish judge on the bond of Carroll, Hoy & Co., and on the same day the sheriff sold and adjudicated to them the property in dispute in part satisfaction of their writ of seizure. On the sixth of September, 1870, the suit of third opposition was •called in the district court and default entered, and on the twelfth judgment was rendered in favor of the plaintiff, perpetuating the injunction sued out by her, aud quieting her title aud possession of the land in dispute, and decreeing the nullity of the order of the parish judge setting aside on bond the injunction pending in said district •court, as though the same had never been granted.

From this judgment Carroll, Hoy & Co. have appealed. They assign, for error, apparent on the face of the record, that said judgment is.' null and void, both as to perpetuating the injunction and annulling; the sheriff’s sale at which they bought the land, because they were never cited or appeared, and were condemned without a hearing; that the sheriff, Buss, is now out of office, and had no interest; that the judgment was without parties and null.

We entirely concur with'the district judge that the parish judge was without jurisdiction to set aside the writ of injunction pending in the district court, and his order to that effect was an absolute nullity, and the injunction remained as though the same had not been granted.

We think the defendants, Carroll, Hoy & Co., should have been cited, and the court erred in rendering judgment without making them parties; the sheriff who was cited, having no personal interest, was-rather a nominal party.

Justice requires this cause to be remanded in order to make proper parties, and to try the third opposition and injunction sued out by the-plaintiff.

It is therefore ordered that the judgment herein be annulled, and that this cause be remanded for new trial; that the order of the parish judge setting aside the injunction and'all the proceedings thereunder, be annulled and avoided, and that the injunction be restored. It is. further ordered appellee pay costs of appeal.