text:
    No. 1431.
    Villeneuve Leblanc, Jr. & Co., v. L. E. Perroux, Marsoudet, subrogated.
    A judgment rendered against a party who has neither been cited nor mado an appearance by answer, is an absolute nullity.
    Éroof of citation can only be shown by the Sheriff s return, and nothing can be presumed by the Court.
    The Sheriff's return on a citation cannot be amended or corrected after judgment, so as to cure nullities resulting from a defective citation.
    The power to receive citation for another must bo express and special; it cannot be conferred by a general mandate. C. C. 2965, 2966.
    When parties have elected a domicile as a place to receive citation, the Sheriff’s return must show that the service was made at the elected domicile in the manner prescribed by law.
    Citation served on a person not a party to the suit, whom it is neither alleged nor shown was the agent of the principal, is detective, and judgment rendered thereon is null and void.
    from tbe Sixth District Court of New Orleans, Duplantier, J.

      H. & J. Grover, for appellants. L. Castora & 0. Hunt,, for appellee.
   Howe, J.

This is an action of nullity.

The judgment sought to he annulled was rendered in a suit upon four promissory notes made by Villeneuve LeBlanc, Jr. & Co., of the parish of West Baton Rouge, who, in an act granting a mortgage upon their plantation situated in the parish of West Baton Rouge, to secure these notes, consented as follows :

“That all proceedings may be instituted in and carried on to final judgment and execution before any of the district courts, or other courts of competent jurisdiction iu this city (of New Orleans), electing the office of Bellocq, Nobloiu & Co., or that of their successors, in this city, for their domicile, and renouncing the benefit of aiiy laws now in force' or hereafter to be enacted, providing that the defendants can only be sued or proceeded against before the judge of the district or parish wherein they reside or have their domicile.”

In this action upon the promissory notes, commenced in the Sixth District Court of New Orleans, the return upon the citation was the following:

Received February 16, 1865, and on the same day served a copy of this citation and accompanying petition on A. P. Noblom, agent of Villeneuve LeBlanc, defendant herein, personally.”

Upon this return judgment by default was entered, and in due time the default was confirmed and judgment rendered against Octave LeBlanc and Villeneuve Le Blanc, composing the firm of Villeneuve LeBlanc, Jr. & Co., in solido, for the sum of $16,000, with sundry arrears of interest, and with privilege on the property mortgaged.

Steps having been taken to execute • this judgmént, the plaintiffs in the case at bar commenced their action of nullity upon the ground of defective citation, and invoked the cónsérvátory ’remedy of injunction. The defendants (appellees) appeared and answered, and moved to dissolve the injunction upon the ground, substantially, that the judgment debtors had been properly cited, and that the citation and return formed a legal basis for a judgment. Tbe judge a quo denied tliis motion, being of opinion that tbe service' of tbe citation, as disclosed by tbe return we hav.e quoted above, was not a compliance witb the law, and amounted to no citation at all.

Tbe defendants in injunction thereupon procured an order permitting tbe return of tbe sberiff in the pase of Perroux v. LeBlanc to be amended as follows:

.“In conformity ,tp.thepuling of ,the court, permitting an amendment to be made to .the service ,pf ’tb,e above citation, I now make the following additional return and amendment, to wit: that on tbe day named in thepaid return I served a covpy of this citation and accompanying petition, ,as ,i» said return -set forth, by serving tbe same on A- P. Noblom, personally, who át tbe time I'served him.was in iiis counting room or office, being that of Bellocq, Noblom & Co., No. 61 Carondelet street, in second floor of said building, first district of New Orleans, November 16, Í866.”

Tbe case came on to be tried and tbe court a quo gave judgment for plaintiffs, but thereafter granted a new trial, and upon the second trial gave judgment for tbe .defendants, dissolving the injunction with damages.

From this judgment-the-plaintiffs have appealed.

It is well settled that a judgment rendered against a party who has neither been cited nqr appeared, -is an absolute nullity ■, that. a court can presume nothing with respect to a party being cited; that nothing will cure defect of citation or want of service except appearing and answering to the merits; that the poof of the service of a citation is not a matter -m pais, and there can be no evidence of it but the sheriff’s return, unless service .be waived by the appearance of the party; that the service must appear.by matter of record, and no parol evidence can be received. C. P. Art. 206 Harris v. Alexander, 1 Rob. 30.

Tested by these elementary rules, the citation in the case of Perroux v. LeBlanc as evidenced by the original return was clearly defective. There is no allegation of agency in the petition ; and admitting that LeBlanc, Jr. & Co., in electing as their domicile the office of Bellocq, Noblom & Co., in New Orleans, elected it as a place to receive citation, it does not appear by the original return that the service was made at this elected.domicile, nor does it appear that the service was made upon a person apparently.abo.ve the. age of fourteen, living in the house.

C. P. 189, 20Í; 16 L. 670: 12 L. 547.

The defendant seeks to avoid' these conclusions by contending that the election.of the office of Bellocq, Noblom & Co. as a domicile was a mandate to this firm, and each of its members to accept service of citation. In support of this position his counsel have cited French commentaries and decisions oirarticle 111 of the Code Napoleon, and have urged that although that article is not to be found in ouy Civil Code, yet its equivalent is to be found in C. C. Art. 11.

Granting that the eleventh article of our code authorizes, in general terms, the election of domicile, which is specially authorized by the 111th article of the Code Napoleon, and conceding the highest respect to the commentators and courts of France, we are of opinion that the law of Louisiana has been long settled adversely to the view urged by the defendant. The power to receive citation for another is not one of administration. It cannot be confessed by a general mandate, however broad. It can result only from the express terms of an instrument, or from such language therein as leaves no room for doubt.

C. C. 2965, 2966.

The case of Fuselier v. Robin, 4 An. p. 61, will show how jealously the court has guarded the rights of parties defendant in this respect.

There being therefore in the petition in Perroux v. LeBlanc no allegation that A. P. Noblom was agent of defendants, and no evidence of agency, the case at best is one of an attempt to serve defendants with citation at their elected domicile, and the. original return does not show that this service was made in any lawful way.

But the defendant contends that he caused the return to be amended as stated above; that such amendment was properly allowed by the court, and that any defects which may have existed in the judgment were thus cured. It is quite true that a sheriff’s return upon certain writs may be amended at any time, and ought to be in deference to truth and justice, but there is an obvious distinction in this regard between process which issues before judgment and forms the foundation thereof, and process which issues after a judgment by way of execution. The former cannot after judgment be amended in such way as to render valid a judgment otherwise null. As was.well said by plaintiff’s counsel in argument, if a house be built without a foundation it will be of little use afterwards to lay a foundation on the roof. And this distinction borne in mind will explain what at a superficial glance might seem a conflict between such a case as Hatton v. Stilwell, 10 M. 91, and such cases as Auber v. Bukler, 3 N. S. 489, and Elmore v. Bell, 2 R. 485. In the language of this court in Rochelle’s heirs v. Cox, 5 L. 287 — “ The return of a process, being the basis, the foundation, on which the judgment rests, it is clear that it must be amended, if amended at all, before judgment; for after it, the foundation of it cannot be subtracted. It is otherwise as to returns posterior to the judgment, like that in an execution. To such a return the rule in 10 Martin 91 cannot be said to be applicable.”

We think, then, that the judgment in question in the case at bar must rest on the facts evidenced by the original return, and for the reasons given above must be annulled. If, as matter of fact, the citation was proper, the defendants herein can still proceed to perfect a judgment in the case, since the present judgment being annulled there can be no objection to such amendment of the return as will make it conform to the truth.

It is, therefore, ordered and adjudged that the judgment appealed from he avoided and reversed, and that there he judgment in. favor of the plaintiffs against the defendant, avoiding and annulling the judgment of the Sixth District Court of New Orleans, in favor of L. E. Perroux v. Villeneuve LeBlanc, Jr. & Co., ih the case numbered 13,927 of the docket of said court; that the order of injunction issued herein on the sixth February, 1866, be made perpetual, and that the defendant pay the costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Wyi.y, J.

license: Public Domain

text:
    No. 1432.
    A. Glenn, v. Thompson & Barnes.
    A held B’s note; B sold a bill of goods to C, who represented himself as the agent of A, and promised that the amount of thp bill should be credited on the note. A brought suit on the note, and B pleaded the account as an offset against the note. The evidence did not show that C was the agent of B, nor that A received the goods or. ratified the purchase. Held that — the account could not be pleaded as an offset, or payment pro tanto of the note. Where tho appeal is purely frivolous, damageswill.be awarded the appellee as in case of a fiivoloua appeal.
    from the Fourth District Court of New Orleans, Theanl, J.

      Charles E. Fenner, for plaintiff and appellee. Edward IF. ton, for defendants and appellants.
   Wyi.y, J.

This action is based upon two promissory notes by° defendants. The defense- is a general denial, that plaintiff is not the owner of the notes sued on', and that-defendants have paid $1,310 73 on these notes. On the trial, defendants offered an account for $181 fox-goods sold the plaintiff as an offset, which was allowed without objection; they also offered an account of $277 64 for goods sold Dr. J. W. Glenn as agent of A. Glenn, as an offset; there was judgment in favor of plaintiff for the amount claimed, subject to a credit of $181; and the defendants have appealed.

Defendants claim in this court that the .account of $277 64 for goods sold by them to Dr. J. W. Glenn as agent of plaintiff should he allowed as an offset or credit. There is no ether defense set up.

The only proof in support of this account is the evidence of Edward Thompson (one of the defendants), who says that Dr. J. W. Glenn, representing himself as agent of A. Glenn, purchased from the defendants the-goods stated in-the bill, “ agreeing that the amount of said hill of goods should he credited on the notes sued on, on which express agreement the goods were sold to him.”

It wíís not alleged or proved that Dr. J. W. Glenn was the agent of the plaintiff, A. Glenn, in making said purchase,'or that A. Glenn ever received said'goods or knew anything of their purchase.

We think the District Judge very properly refused to allow this account of $277 64 as a credit, and that the appeal in.this case is purely frivolous. Plaintiff has claimed damages for this frivolous appeal and we think they should he awarded him. It is therefore ordered and decreed that the judgment appealed from he affirmed with costs, and that plaintiff recover of defendants one hundred dollars damages for frivolous appeal.


author: Wyly, J.

text:
    No. 4436.
    Widow of Charles Dumouchel, Tutrix, etc., v. Thomas Lemerick.
    A motion to diamiss an appeal for reasons that are purely technical, such as informalities in the citation and service of appeal, must he made-within three judicial days from the filing of the transcript.
    "Where a promissory note has been suffered to prescribe on its face, and no sufficient showing is made by the holder that prescription has been interrupted, the plea will be maintained. 20 An. 131, 565.
    from the Second District Court, parish of St. Bernard, Oazabat, J.

      Joseph Marcel Fueros, for appellant. Belclen & Fuselier, for appellee.
   Wyly, J.

Defendant has filed a motion to dismiss this appeal on the following grounds:

First — Because the citation of appeal is defective in this, “ it does not purport to have been issued in the name of the State of Louisiana,” “ it is not sealed with the seal of the court,” it was not served on appellee by the sheriff of the parish where he resided at the time, and it does not specify the number of days given appellee to answer, etc.

Second — Because the certificate of the clerk to the transcript is defective in this, no mention is made in it that the transcript contains copies of all the documents filed in the case.

Third — Because the amount in controversy is less that $500.

The transcript was filed in this court on the twenty-first day of June, ' 1867, and the motion to dismiss was filed on the twenty-first December, 1868.

The defendant does not deny that he was cited, but sets up objections to the form of the citation and the service, which we regard as purely technical and should have been made within three judicial days after the transcript was filed.

On motion of appellant’s counsel the clerk of the district court was permitted to correct his certificate, and the same, drawn up in proper form, was filed in this case on sixteenth January, 1869, which removes the second ground for dismissal.

The third ground was not well taken, the amount in controversy being over $500, including principal and interest up to the filing of the suit.

It is therefore ordered that the motion to dismiss this repeal be overruled.

During' the marriage of plaintiff and her husband Charles Dumonchel, the acquired by purchase a small tract of land in the parish of St. Bernard, and afterward borrowed from defendant a sum of money, to secure which she gave her mortgage notes bearing on sáid property. She signed the notes and executed the mortgage with the written authorization of her husband. The husband afterwards died and the. property was inventoried as his property, having boon acquired during the marriage.

Plaintiff, widow Dumonchel, was appointed natural tutrix of the minor children of her marriage with her husband.

She executed an act renouncing the community of acquets and gains which had existed between her and her husband Charles Dumonchel.

The defendant took out an order of seizure and sale against the property, proceedihg against the widow individually on her notes. It was not taken out against the property as belonging to the succession, nor was notice of the order served upon the widow as tutrix and legal representative of the succession.

In order to prevent the sale of the property, plainti ff in her capacity as tutrix, took out an injunction, alleging that the property seized was part of the succession of Charles Dumonchel, having been acquired during the marriage; that she had renounced the community and only appeared in behalf of the heirs; that the notes in which the order was granted are barred by the prescription of live years, and that the property was exempted from seizure' by the Homestead Act, etc.

Defendant’s answer admits the property seized -was acquired during the community, and belongs to the succession of Charles Dumonchel, for ■which reason the answer states the defendant “changes the character of his action from executory to ordinary, and prays that the said Mrs. Dumonchel have copies for this answer with petition for order of seizure and sale served on her in her capacity as natural tutrix of her minor children, administering the estate of her deceased husband Charles Dumonchel, and- surviving wife and partner in community, and after due and legal proceedings had that he have and recover judgment for the amount claimed in his petition for order of seizure and sale, with full recognition of his mortgage on the property seized, and that it be sold to satisfy the demands in said petition and costs of suit.”

On the trial the injunction sued out by plaintiff was dissolved with costs, and she has appealed.

That the order of seizure and Sale was improperly granted there can be no doubt. The defendant admits in his answer that the property seized as the separate property of Mrs. Dumonchel was property belonging to the succession of Charles Dumonchel; he abandons his proceeding agairist her, and declares that he changes his action from executory into ordinary, praying for judgment against the succession, recognizing his mortgage in the property, etc.

His answer virtually admits that his executory proceeding was wrong.If so the injunction was properly taken out.

The defendant had the right to change Ms proceedings and aBk for judgment against the succession for the amount of his claim and for the recognition of his mortgage on the property, and the judge should have granted him judgment as prayed for unless there was some good defense to Iris demand.

Plaintiff in injunction sets out several grounds of defense, but the most serious one seems to be the plea of prescription of five years.

The notes on which the defendant, Thomas Lemerick, bases his claim were made on twenty-first and twenty-fifth of April, 1860, and payable twelve months after their respective dates. They were made during community, and although in the name of his wife, they were debts due by the community. There was no proceeding against the succession on these notes till they were declared upon by the defendant in his answer filed October 1, 1868, more than five years from the date of their maturity. We have not found in the record any evidence of the interruption of prescription, and we think the plea was well taken.

Having taken this view of the plea of prescription it becomes unnecessary to notice the bill of exception taken by the defendant to the introduction of the mortuary papers of said succession on the ground that there were no stamps thereon, and also there was no evidence in the copy of the' act of renunciation that the original was stamped by the notary who passed it, etc.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that the injunction sued out by plaintiff be perpetuated, and that there be judgment in favor of the succession of Charles Dumonchel, dismissing the demand of the defendant Thomas Lemerick at Ms cost in both courts.


author: Howe, J.

text:
    No. 1423.
    Citizens’ Bank v. Robert H. Dixey.
    The only question to be inquired into on appeal from an order of seizure and sale, is whether there was sufficient evidence before the Judge a quo to authorize the fiat.
    An order of seizure and sale can not be set aside on appeal on account of subsequent irregularities in the execution thereof.
    from the Third District Court of New Orleans, Fellowes, J.

      Armand Pitot, for appellee. J). C. Labatt and Alexander Walker, for appellant.
   Howe, J.

This is an appeal from an order of seizure and sale signed January 4, 1866.

It is well settled that on such an appeal the only question is, whether there was before the Judge a quo sufficient evidence to authorize the fiat. The order can not be set aside on appeal, on account of subsequent irregularities in the execution of it, as by not notifying the proper parties or otherwise. Dodd vs. Crain, 6 Rob., 60.

We can only inquire, therefore, into the validity of the order and of the many points raised by the appellant; it will be necessary to consider but these two:

1. That the certificate attached to the copy of the act of mortgage on which the order of seizure and sale was granted, was not stamped as required by acts of the Congress of the United States. And

2. That at the time the order of seizure and sale was made the foreclosure of mortgages in Louisiana was forbidden by general orders No. 15, Headquarters Department of the Gulf, series of 1863.

As to the first point, the record shows that the Certificate upon the copy of the act of mortgage has no date, while the mortgage itself is dated August 7, 1861. Upon the principle that a sworn officer is presumed to have done his duty until the contrary be proved, we must conclude that this copy was furnished and certificate made before the act in reference to stamped instruments went into effect, that is, prior to October 1, 1862, (United States Statutes at Large, Yol. 12, p. 475,) and therefore required no stamp.

As to the second point. The military prohibition of the foreclosure of mortgages, which is invoked by the appellant, was removed by General Orders No. 113, Headquarters Department of the Gulf, series of 1864, the text of which may be found in full, in the opinion of this Court, in the case of Graham v. Taylor, 18 An. p. 656, and of which we will take judicial notice. Lanfear v. Mestier, 18 An. p. 497. It is unnecessary then to consider what would have been the effect of order No. 15, if it had remained unrepealed.

We perceive no error in the judgment appealed from, and it is therefore ordered and adjudged that the same be affirmed with costs.

Rehearing refused.


text:
    No. 1445
    Alfred Marchand v. Robert B. Bell and City of New Orleans and James McKenzie.
    The service of garnishment process fixes the rights of the seizing creditor from the moment the garnishee makes answer to the interrogatories.
    The seizing creditor acquires a privilege on the assets in the hands of the garnishee to date from the service ot the interrogatories.
    The city of New Orleans was indebted to Robert B. Bell in the sum of $5,000; James McKenzie had judgment against R. B. Bell, on which he caused a garnishment process to issue against the city; the answers of the city to the interrogatories disclosed its indebtedness to Bell.

      K. Marchand brought suit againBt Bell and made the city a party, •which was not served on the city until after the service of the interrogatories in garnishment. Held that Marohand, the plaintiff, was only entitled to recover the balance due by the city to Bell after paying the amount of McKenzie’s judgment.
    from the Third District Court of New Orleans, Fellowes, J.
    (r. Schmidt and F. W. Huntington for plaintiff and appellee'. Buchanan & Gilmore for appellants.
   Wyly, J.

This action is based upon certain orders of Robert B. Bell on the Assistant Treasurer of the city of New Orleans, amounting, in the aggregate, to $5,140, which were not accepted.

Robert B. Bell answered by admitting tbé claim, but pretending that be had paid it.

The city of Now Orleans answered, pleading the general issue, and averring if it ever were indebted to said Bell by reason of any contract or contracts between them, that the same were forfeited as well as any amount that might be due him on account of the failure of said Bell to comply with the terms of said contracts.

On the fifth of September, 1866, the city filed a supplemental answer, repeating the general denial, and averring that since filing the original answer it had made a compromise with Robert B. Bell, and agreed to pay him five thousand dollars in full satisfaction for all his claims; also averring it was ready and willing to pay the aforesaid sum in full satisfaction of the claim aforesaid to said Bell, or any one duly qualified to receive the same, but cannot do so without a judgment of court, rendered contradictorily with plaintiff in this case, Robert B. Bell, the defendant, William H. Bell, pretending to be the assignee or transferee of said claim of R. B. Bell v. the city and James McKenzie, who has garnished the city.” The supidemental answer concludes with a prayer that James McKenzie and W. H. Bell be served with copies of the petition and answer, and bo cited to appear in the case and assort their respective claims, and that there be judgment contradictorily with all the parties, declaring how the aforesaid five thousand dollars shall be distributed, and on payment of said sum that the city be released from all further responsibility.

It was admitted on the trial that W. H. Bell had no interest in tiro matter in question.

James McKenzie answered, alleging that the city owes Bell an amount greatly exceeding the five thousand dollars, and that on the eighteenth of April, 1866, he obtained a final judgment against Robert B. Bell for one thousand eight hundred and eighty-seven dollars and ninety-six cents and interest, and upon said judgment he issued execution, and took out garnishment process against the city of New Orleans, propounding interrogatories according to law, and that said attachment is still in force and effect, and binds the indebtedness of the city to Bell, and entitles him to bo paid the amount of his judgment, interest and costs.

On the trial there was judgment against Robert B. Bell for the amount claimed, and it was further ordered that the city of Now Orleans pay-over to plaintiff, A. Marchand, five thousand dollars, the amount admitted to be duo Bell, as contractor, in preference to all other claimants, in part satisfaction of his judgment against Bell. The demand set up by McKenzie was dismissed with costs.

James McKenzie and the city of New Orleans have appealed.

The defendant, Robert B. Bell, has not appealed, and as to him the judgment is now res judicata.

The city of New Orleans admits owing Bell the five thousand dollars, and avers that it is “ready and willing to pay the aforesaid sum” to any one qualified to receive the same. It makes no contest in this court as to how these funds- shall he distributed, only demanding a full discharge upon payment thereof.

The contest' for the funds is therefore between the plaintiff and James' McKenzie, who served his garnishment process on the city -ofi the eleventh of May, 1866.

It appears that prior to plaintiff’s suit, James McKenzie sued out garnishment process against the city on Ins execution against Bobert B. Bell, propounding interrogatories to the city.

The Mayor’s answers not being satisfactory, were excepted to and traversed by McKenzie, and-additional interrogatories propounded. Ón the twenty-ninth of November, 1866, the Mayor, in behalf of the city, answered the additional interrogatories, and admitted that the city had “ effected a compromise and full séttlement with Bell in full satisfaction for all claims, and whereby the city has promised to pay five thousand dollars,” and that proceedings are pending in the suit' of A. Mai-chand v. Bobert B. Bell and the city of New Orleans, wherein- the skid James McKenzie is made party for the distribution of said five thousand dollars.

The rights of James McKenzie were ascertained the moment the city admitted its indebtedness to Bell. He had seized Bell’s' funds in the hands of the city; and had acquired attaching creditor’s privilege there? on from the day the-garnishment' process was served, which was prior to the action of plaintiff.

Plaintiff had acquired no privilege' on the funds of Bell in the hands of the city. He simply sued the city, on the orders of Bell which it had not accepted.

We do not find in- the record any order consolidating this suit with the garnishment proceedings sued out by James McKenzie against the city of New Orleans y indeed, that suit seems to be still pending ip the District Court and pot disposed of. At least that case is not now pending before this court on appeal, and we cannot undertake to'fix the liability of the city on its answers to the additional interrogatories filed in that case. Prom the pleadings and evidence in that case, received in evidence on the trial of this cause, without objection, it appears that the funds of Bobert B. Bell were attached in the hands of the city of New Orleans on the eleventh May, 1866, prior to the institution of this suit.

But we are at a loss to know' in what capacity Jas. McKenzie appears before this court. He has hot filed'a petition of intervention and caused" it to be served on the parties to the suit. If the city in requiring him' to be cited and made party to the suit intended to call him in warranty, we cannot permit such pleading;-there is no law aiithorizing such practice, there is no joinder of issue between the appellant, James McKenzie, and the plaintiff, A. Marchand,

AVe cannot give judgment in favor of James McKenzie for the amount of his demand because his suit against the city is not before the court.” Nor can we decree that the city of New Orleans shall pay over the amount of its entire indebtedness to Bell to the plaintiff, A. Marchand. The record shows that McKenzie has acquired attaching creditor’s privilege on Bell’s funds in the hands of the city if his demand be correct and just, which must be determined in his proceeding of garnishment against the eity.

We cannot concur in the judgment of the court below ordering the city of New Orleans to piay over its entire indebtedness to Bell, to wit: five thousand dollars in part satisfaction of the judgment of plaintiff against the defendant, Robert B. Bell., in preference to all other claimants. We think James McKenzie had acquired attaching creditors’ privilege on the funds of Bell in the hands of the city, and he had priority over plaintiff to the amount of his claim. The answer of the city of New Orleans and the garnishment proceedings received in evidence without objection, establish proof of the attachment of the funds of Bell in the hands of the city, at least to an amount equal to the demand of McKenzie. AVe do not think the city should be ordered to pay over to plaintiff funds attached in the suit of garnishment by James McKenzie.

It is therefore ordered that the judgment ordering the city of New Orleans to pay over to the plaintiff, A. Marchand, five thousand dollars, acknowledged to be due Robert B. Bell, be avoided and annulled, and it is now ordered that plaintiff have judgment against the city of New Orleans for five thousand dollars with ñve per cent, interest thereon from the fifth of September, 1866, less the amount demanded in the garnishment process by James McKenzie v. the city of New Orleans, to wit: eighteen hundred and eighty-seven dollars and ninety-six one hundredths, with eight per cent, interest on one thousand four hundred and eighty-three dollars and ninty-six cents thereof, from the fifth of July, 1860, and on three hundred and ninety-four dollars thereof from the seventh of April, 1860, and costs of garnishment process, subject to a credit of four hundred and fifty-five dollars and fifty cents, collected on the execution of McKenzie v. Robert B. Bell, on seventeenth July, 1866. It is ordered that the city of New Orleans retain the amount as aforesaid demanded by James McKenzie, and hold the same subject to the action of the District Court in the case of James McKenzie v. the city of New Orleans, without prejudice to the right of the plaintiff, A. Marchand, to intervene in that suit, and contest the validity of the claims of said McKenzie v. Robert B. Bell and the city of New Orleans made party garnishee.

And that plaintiff and appellee pay costs of appeal.


author: Ilsley, J.

text:
    No. 1671
    Andrew Matta v. William Thomas, et al.
    A writ of fieri facias is the basis of proceedings in garnishment.
    The service of interrogatories on the garnishee will not operate a seizure of the assets in hia hands unless the Sheriff holds at the time a writ of fieri facia* against the defendant.
    RepoRtek. — This case was decided in the month of June, 1868, by the Supreme Court, organized under the constitution of 1864, and an application for rehearing was made just before the adjournment of the court, which was examined and refused by the present Supreme Court in the month of January, 1869.
    APPEAL from the Fifth* Judicial District Court, parish of East Baton Rouge, Posey, J.

      Fuqua, Gallihan, Burgess and Chaney, for‘appellant. Cross & Hardy, for appellee.' '
   Ilsley, J.

Under a writ of fieri facias, issued out ®f the Fifth Judicial District Court of East Baton Rouge, in the suit of A. Matta v. William Thomas, et al, certain property of the defendants was seized, and not bringing at the cash sale two-thirds of its appraised value, was subsequently offered for sale on a credit, and was bid off to the defendants for the sum of two thousand two hundred and thirty-five dollars, the purchasers furnishing their twelve months’ bond, with Jeff. Thomas as surety.

This bond was not paid, and on the twentieth of November, 1865, a writ of ltalias fieri facias on twelve months’ bond,” the only writ of fieri facias ever issued on the bond, was taken out by the plaintiff’s counsel, who, on the seventh of December, 1865, returned it into court with the following written statement on the writ: >( This fieri facias is returned, not having been in the hands of the sheriff,” signed by the plaintiff’s counsel and dated as above.

Previous to the issuance of the alias writ, viz: on the tenth of November, 1865, petition of garnishment and interrogatories had been filed By the plaintiff in court against David Pipes, and process thereon was served on him on the day following. The answer of Pipes to the interrogatories were not filed until the fourteenth of June, 1867, and it appears from his answers that in the interval between the service on him of garnishment process and the filing of his answers, he had, without any reference to the garnishment, compromised with Jeff. Thomas, his alleged creditor, and paid him in full on his claim, which had been pending in court, five thousand dollars.

A rule was thereupon taken by the plaintiff on Daniel Pipes to show cause why judgment should not be entered up against him for the full amount of plaintiff’s claim, less than the amount paid to Jeff. Thomas.

This rulé, to which Pipes filed in court his answer, was dismissed, the court being of the opinion that the contract sued on by Jeff. Thomas against Pipes' was an immoral and illegal one.

It is evident that on the tenth of November, 1865, when proceedings jn garnishment against Pipes commenced, no writ of fieri facias had been applied for by tlie plaintiff or issued, and that when the sheriff served the interrogatories on Pipes, no writ of fieri facias on tbe twelve months’ bond was in the hands of the sheriff, and no constructive seizure could therefore have been made by service of the interrogatories. See Simpson v. Allum, sheriff, 7 R. 505; Roliteau v. Faliton, 11 R. 221; 2 A. 310.

In the case of Copnell v. Fretnell, 2 A. 310, this court said it is quite unnecessary to inquire into the alleged default of the garnishees, and the defectiveness of their answers.

The proceedings against them were ab initio null and void. A fieri facias is the basis of the proceedings under the act of 1839, and by express terms of the statute, the property and effects in the hands of the garnishees shall be decreed to be levied upon by the sheriff from the date of the service of the interrogatories on such persons.

If there is no writ of fieri facias extant, or it has expired, proceedings against garnishees are void.

For the reasons now given, it is ordered, adjudged and decreed that the judgment on the rule be, and it is- hereby affirmed, at the cost of the appellant.

Eehearing refused.


author: Taliaferro, J.

text:
    No. 1402.
    Redelia Kellar v. Mrs. M. L. H. Blanchard.
    A transfer of a lease by- tbe executrix of an estate is null.
    Where a sale of a lease, owned by a succession, has been judicially declared to be null, the property in the lease reyerta to the estate.
    The surviving wife, being a partner in community, is competent to purchase property at probate sale, which she administers as executrix. Acts of 1855, page 78, section $.
    A sheriff inay cause a deed to be made and attested by any of his legally qualified deputies, and when so made and attested it has the same validity as-though it were made and attested by the sheriff.
    The possibility that a purchaser may be compelled to bring a suit at law to gain possession of the thing purchased does not constitute it a litigious right.
    from the Third District Court of New Orleans, Fellowes, J.

      J. P. Hornor, for plaintiff and appellee. JE. Jiawle and A. di M. Voorhies, for defendant and appellant.
   Taliaferro, J.

The plaintiff, averring herself to he the assignee of certain claims from Theresa Smelser against the defendant, brings this-suit to recover them. She claims eight hundred and fbur dollars and seventy-three cents, with interest, arising from a contract of lease originally entered into between the defendant and Levi Smelser, the husband of the plaintiff’s assignor. She also claims four thousand three hundred and sixty-seven dollars and sixty-eight cents, with interest on portions of that amount from different periods, the estimated value of certain buildings erected by Levi Smelser for the defendant on three several lots of ground owned by her, and situated on Tchoupi-toulas street, in the city of New Orleans. The answer of the defendant is a general denial. The plaintiff had judgment in the court below, and the defendant presents this appeal,

Thé facts seem to he thesfe: In January, 1853, Léti Smélser léased from tlie defendant tlie lots of ground referred to for a term to expire on the first of November, i860, lie was to pay one thousand eight hundred dollars per year, and to-make payments for each month successively. It was likewise agreed, that during- the lease, Smclset was to build, at his own expensé, one or more houses upon the lots, according to plans and specifications that might be agreed upon by the parties; that at the expiration of the lease the defendant was to pay tó thé builder the value of the buildings so to be erected, a x>ortion in cash and tlie remainder in several installments falling dufe fit different periods. The parties stipulated that the valúe of the buildings should be ascertained by an appraismént to be inade by experts, of, ás théy terniéd them, arbitrators; each party to select one, and the two arbitrators to choose one umpire.

In May 1855, Smelser died, but previous to his decease, he completed his engagement to build the houses he had contracted for with the defendant. He died without descendants, left a will by which he bequeathed a portion of his estate to his mother, find anoth&r to his wife, whom he appointed his executrix. She qualified in that capacity, and caused the usual mortuary proceedings to be takeit. The éstate séenis to have been considerably burdenpd with debts, and badly administered. Among those interested in the succession much litigation occurred.

As bearing more especially upon the points in controversy in this erfse* it will be proper to notice more particularly the facts connécíéd with two events that grew out of the administration of the estate, viz ■ the sale of the lease which expired on the first of November, I860', and thé sale of the interest in the buildings erected by Smelséf on the lots of the defendant. Upon the application of the executrix, filéd! On the twentieth of September, 1855, setting forth that previous Mes of property of the succession had failed to realize sufficient funds to pfiy debts, an order was rendered on the following day for the salé of the lease. On the eleventh of December, of the same year, oñi a rifle taken against the executrix by Todd &. Co., creditors of the estate, an order of sale was rendered on the fourteenth of that month for sale of property of the succession to discharge their debt. The order of sale was. directed to Beard, an auctioneer, who, after the usual- advertisements, made sale of the lease on the twenty-ninth of December, 1855. The defendant ptirchased it at the price of One (follar. The éxéeútrix brought suit in November, 1857, to annul this sale; A judgment pronouncing its nullity wasrehdéred on the twentieth of December, 1858, and this judgment, with a slight modification, was confirmed'on app'eal to this court in April, I860. See 15 A.'page 254.

The defendant went into possession of the leased premises under the sale made on the twenty-ninth of Decémber, 1855,• fin'd retained possession until the lease expired by its limitation in November, 1860. As the value of the lease had increased after the erection of the buildings by Smelser, the court awarded the plaintiff the sum of eight hundred and four dollars and seventy-three cents, being the excess in value in favor of the estate over the amount it was bound for to the defendant under the original contract. On the application of Dunham, one of the creditors of the succession, an order of sale of property of the succession was rendered on the twenty-seventh of June, 1857, and under this order, the only remaining asset, as it seems, of the succession, its interest in the buildings erected on the defendant’s lots, was sold on the eleventh of September following, and Mrs. Smelser, the executrix, in her individual capacity, became the purchaser. It was adjudicated to her at the price of sixteen hundred dollars, and retaining in her hands nine hundred and sixty-seven dollars and .thirty cents. She executed a twelve months’ bond for the remainder, Mrs. Kellar, the plaintiff in this suit, being her surety on the bond. This bond was assigned by the sheriff to Mrs. Kellar on the twenty-sixth of September, 1857, she, as is averred in argument, having paid it. To all her rights acquired by the sale made on the eleventh of September, 1857, Mrs. Smelser substituted Mrs. Kellar by a written act, dated twenty-second of November, 1858, transfering to her all the interest of the succession in the buildings erected on the defendant’s lots, and subrogating her “to a certain suit pending against Mrs. Blanchard and husband, being No. 1339, of the docket of the Second District Court of New Orleans, and to all the advantages, sum or sums of money that maybe had, obtained or gotten by reason or means of any judgment or proceedings to be had thereupon.” This clause in the act of transfer refers to the suit then pending, to annul the sale by virtue of which the defendant had acquired title to the unexpired portion of time the lease had to run.

The ground taken by th'e defense is, that by none of these proceedings did the executrix, in her individual capacity, acquire any title to the rights she pretends to have transferred, and consequently that the plaintiff, as her transferee, stands in the same attitude. It is argued that the proceedings were illegal and null; that the sales under which the plaintiff holds were made under writs of fieri facias, a proceeding unknown to the law in the sale of succession property; that admitting the estate had rights against the defendant, these rights have not been divested, and therefore, that the estate not being a party to this suit, would not be concluded by a judgmentrendered in favor of the plaintiff against the defendant, and that the transaction between the executrix and plaintiff, was the transfer of a litigious right entitling the latter to •recover only the amount she paid, if entitled to recover at all.

An examination of the record satisfies us that there is error in the judgment of the court below in decreeing the defendant to pay the plaintiff the amount ascertained to be due under the contract of lease. At the time of the transfer of Mrs. Smelser to plaintiff, he had no right to the interest of the estate in the lease, and consequently conveyed none to the plaintiff. On the contrary, at that time a suit was pending in her name as executrix, to annul the sale invoked by creditors, at which the defendant had purchased the lease and was in possession of the premises subject to its decision. By the annulment of that sale the rights under the lease reverted to the estate, and we do not find that they were subsequently acquired by Mrs. Smelser or any other party.

The assignment by the same act of. transfer of the rights and interest of the estate in the three brick buildings erected by Smelser on tké defendant’s lots stands on a firmer foundation. On the seventh of April, 1857, Dunham, a creditor, obtained judgment against the succession for five hundred dollars with interest. On the fourth of June, 1857, he took a rule on the executrix to show cause why property of the estato should not be sold to pay this judgment, and on the twenty-ninth of the same month the rule was made absolute, ordering property of the estate to be sold to pay the judgment.. Upon this order of court the fieri facias or authority to the sheriff to make the sale issued. The interest of the estate in tlie buildings spoken of was seized, and after the usual notices and advertisements was sold. All the proceedings seem to have been regular, and all the formalities required in the sale of succession property under the like circumstances to have been observed. The executrix was the surviving partner in the community that existed between her and her husband, and had the right to purchase the property. Acts of 1855, page 78, Section 8.'

Before answering to the’merits, the defendant excepted to the action denying that plaintiff was, as she alleged herself to be, separate in property from her husband.’ The’ exception was properly overruled. The fact of separation in property was fully proved on the trial of the exception, by the marriage contract between the husband and wife, and by a judgment of the wife against her husband to recover her para-phernal property.

The defendant reserved a bill of exceptions to the admission in evidence by the court, of the sheriff’s deed to Mrs. Smelser, dated the eleventh of September, 1857, on the ground that the act was signed not by the sheriff as required by law, but by Blossman, a deputy sheriff. This objection is without weight. The law provides for the appointment of deputy sheriffs, It is made the duty of each sheriff or deputy to execute all writs, orders and process of the court or judge thereof that may issue to them directed. Revised Statutes, p. 524, sections 5 and 6. Quifacit peralmin facitper sc..

It is contended on behalf of the defense that the appointment and proceedings of the experts to .appraise the value of the buildings were irregular and of no legal force. Esterbrook and Gott, it appears, were selected to make the estimate.. The former was chosen, as he states in his testimony taken .under commission, “ by Mrs. Blanchard, through her husband, A. G. Blanchard.” The latter, was selected by the plaintiff. They agreed in the estimate made, and no umpire was therefore phosen. The objection that three experts did not act has no force. No necessity existed for an umpire. It does not appear that the experts acted under oath, or that they were required by the parties to be sworn. Neither to the introduction in evidence of the certificate of the appraisers signed by them, nor to the testimony of one of .them regarding his appointment was there any objection made on the trial of the case. No attempt was made by defendant to show that the appraisement was not fairly made, or that tho valuation was too high. .

For the defendant, it is further held, that the assignment of the supposed rights of Mrs. Smelser was, in fact, a litigious right. We do not so regard it. The estate of Smelser clearly had under the contract an interest in the buildings erected by him on the lots of the defendant. That interest, whatever it might be worth, was sold by an order of a competent tribunal to raise means wherewith to pay debts of the succession, and it was bought by the widow of the deceased. This sale, as to Mrs. Blanchard, was res inter alias acta. It was of no moment to her whether the thing sold brought much or little. As between her and the estate or its assignee, the value of the interest of the estate in the buildings was to be fixed by the mode provided by the contract, the law established by the parties for themselves, that is, by an appraisement to be made by experts to be appointed by themselves. No litigation whatever existed in relation to the right sold at the time it was transferred to the plaintiff. She acquired it, and might, for all she knew, realize its value without litigation. The possibility that a suit at law niight be necessary to enforce the claim, does not constitute it a litigious right. We consider the interest of the estate in the buildings and the léase of the property as two distinct things. They are not complicated in the suit to annul the sale of the lease. We have already said, that in our opinion, the subrogation of the plaintiff to all the rights of Mrs. Smelser in the action of nullity, then pending, conveyed no right to the plaintiff. It is therefore unnecessary to determine whether the sub-rogation amounted to the transfer of a litigious right or not. But if it were a ligitious right, the fact of its transfer being made in the same act with the transfer of the interest in the buildings, by no means affects the validity of tho latter. Utile per inutile non vitiatur

It maybe remarked that all the evidence introduced in support of the plaintiff’s claims, with the single exception of the sheriff’s deed, already noticed, was received without objection by the defendant. We conclude, that with some modification, the judgment should he maintained.

. It is therefore ordered, adjudged and decreed that the judgment of tho district court, so far as it decrees the defendant to pay the plaintiff the sum of eight hundred and four dollars and seventy-three cents, with interest specified, be annulled, avoided and reversed, and that in all otherrrespects it be confirmed, reserving to the estate any rights it may have against the defendant growing out of the contract of lease.

It is further ordered that defendant and appellant pay the costs in the lower court, the plaintiff and appellee to pay the costs of the appeal.

Rehearing refused.


author: Ilsley, J. Ludeling, C. J.

text:
    No. 1816.
    State of Louisiana, ex rel., Mrs. Gausson, Executrix, and D. D. Withers v. The Judge of the Second District Court of New Orleans.
    An executor or adminstrator is an officer of the court, and the funds coming into his hands as such are amply secured by the bonds he is required to give before entering upon the duties of his office.
    A bond in amount sufficient to cover costs will entitle any party to a suspensive appeal therefrom.
    The rule laid down in article 675 of the Code of Practice, which requires that the appeal bond to be given for a suspensive appeal shall exceed by one-half the amount of the judgment appealed from, does not apply to a case where an appeal has been taken from a judgment homologat-ing a tableaux filed by the executor; this class of cases is governed by the doctrine taught in Blanchin v. Steamer Fashion, 10 An. 345, State ex rel. Hickey v. Judge of the Fourth District Court of New Orleans, 20 An. 108, which may be rendered as follows: "Where there is no standard specially fixed by law as to the amount of the appeal bond required to operate a supersedeas pending the appeal, the Judge a quo should allow a suspensive appeal on appellant’s giving bond in an amount sufficient to cover costs.
    After an appeal bond has been filed, the Judge a quo is competent only to determine whether the appeal is suspensive or dovolutive, and to ascertain whether the sureties on the hond are such as the law requires.
    The Supreme Court will, on application for a prohibition, inquire into the sufficiency of the appeal bond to entitle the appellant to a suspensive appeal.
    Reporter. — This case was decided in the month of»June, 1868, by the Supreme Court organized under the Constitution of 1864. Application for rehearing being made and not disposed of by that tribunal, was transferred to the present court, and on re-examination refused.
    from the Second District Court, Thomas, J.

      Zea & Finney, and Boselius & Philips for relators.
   Ilsley, J.

This is an application for a writ of prohibition to the Judge of the Second District Court of New Orleans, and others.

The facts necessary to a proper understanding of the case are the following The plaintiff in the suit in the said court, pending on the first of May, 1868, entitled Marie P. L. Ledoux, wife of John K. Elgee, deceased, v. Bessie Elgee Scott, heir and testamentory executor of J. K. Elgee, No. 2990, obtained a final judgment against the succession of John K. Elgee for—

First — The sum of one hundred and twenty-two thousand nine hundred and one dollars and ninety-six cents ($122,901 96), with five per cent, interest on $95,969 66 thereof from various persons.

Second — For the delivery as her property of 579 3-5 shares of gas light stock with $17,938 80 dividends accrued thereon, and now in the Gas Company’s office, requiring the defendant to transfer the same stock and money, the said $17,938 80 forming a part of the above $122,90-126, and the balance, say $104,963 16, in due course of administration.

From this judgment the defendant in the above suit, and also an intervenor, who claimed to he a creditor of the succession of J. K. Elgee' for a large amount, obtained, in the legal delay from the court below, suspensive appeals to this court, on their giving each a distinct hond for five hundred dollars, the amount fixed by the judge. Afterward, on tlie application of tlie plaintiff, tlie inferior court set aside tlie suspensive appeals and declared executory the judgment rendered by it on the first of May, 1868.

The defendant and intervenor ask this court to issue a prohibition to the judge of the inferior court and to the plaintiff, inhibiting all proceedings whatever in execution of the said judgment during the pending of the, suspensive appeal taken therefrom.,

It is not denied that within the legal delay of ten days next succeeding the date of the order granting the suspensive appeal, appeal bonds, conditioned as the law requires, for the amount ‘specified thereon, with good legal sureties, were duly filed by the appellants in court,

From this statement two questions arise—

First — Was the amount of each of the said bonds, as fixed by the lower court sufficient to operate a supersedeas ?

Second — Had not the jurisdiction of the appellate court attached as soon as the appeal bonds were filed and the citation issued, which is unnecessary on appeals allowed in open court ?

I. It was the opinion of the judge of the court below, and it is strenu - ously contended in this court, that article 575 of the Code of Practice must be applied as cogently to judgments rendered against executors and administrators^ approving judicially claims against succession,'as to any other class or kind of judgments.

This court thinks otherwise.

That article, properly read, refers evidently to ordinary judgments between individuals; whenever the amounts are so specified that if execution is not stayed, writs of fieri facias mayissue at once to recover such specific sums as are thereby adjudged. It has no application to such judgments which are necessarily held in abeyance and which can not bo mado executory until it be ascertained contradictorily with other parties in interest, on a tableau of distribution, whether the whole or any portion of such claims, although judicially recognized, can be made available.

A judgment recognizing a claim against a succession has generally no greater force in law than an acknowledgment of the claims by an executor or administrator. See articles 985 and 986 of the Code of Practice.

In either case the creditor can only obtain the payment of it concurrently with the other creditors. C. P. Arts. 986, 1054.

Whether a claim against a succession is recognized judicially in a direct action, or by opposition to a tableau of distribution, 10 An.'224, in cither event, whatever may be the amount of a creditor’s judgment, he can only recover on it such amount as may be awarded to him in such tableau when duly homologated.'

An executor or administrator is an officer of the court, and any funds or property in his hands belonging to the estate he administers, are amply seemed, as the law dobs and the creditors may require bonds to secure them and to ensure tlie faithful administration, and the creditor incurs no 'risk by the delay which an appeal, that every executor or administrator has the legal right to take (art. 572 C. P.), may occasion.

Be this as it m'ay, it suffices that article 575 of the Code of Practice has not in letter or spirit any applicability to such a case as this, which is governed 'by the doctrine taught in Blanchin v. The Steamer Fashion, 10 An. 345. State ex rel. Hickey v. The Judge of the Fourth District Court of New Orleans, 20 An. 108, and other kindred cases, a doctrine which the intervenor, who is not condemned to pay anything, may •invoke in exercising his right of appeal. C. P. 571.

And the doctrine is one sanctioned by reason and common sense, when applied to executors and administrators, otherwise their right to appeal would in most cases, for any practicable purpose, be wholly nugatory; as it would require them to furnish security for the payment of debt, only recognized judicially for a solitary purpose, and which might turn out eventually to be utterly valueless by reason of the insolvency of the succession against which they have claims.

As to the -stock and dividends held by the G-as Company, and which ■the judgment of the lower court orders the executor and defend■ant to transfer to the plaintiff, that is certainly not covered by article 575 C. P., which'refers to the specific sum which a party is condemned to pay, nor does it fall under article 576 C. P., which refers to tangible movable property óf a perishable nature, and not to mere incorporeal rights. No transfer of that stock and dividends could be made to the prejudice of the plaintiff, and a bond for costs for that would certainly suffice to prevent its becoming executory. The decree itself, if not reversed, would, if the execution did not, according to the terms, transfer the’ stock and dividends, confer a title upon the defendant therefor.

II. It lias been repeatedly held by this court that the moment a 1 sufficient appeal bond is signed and citation issues, the jurisdiction of the Supreme Court attaches. See numerous cases collected in 1 Hen. page'74, section 3; and in the case of the State ex rel. v. The Judge of the Fifth District Court, it was held after the order was made and signed, granting a suspensive appeal, and approving the bond furnished by the appellant. We'think-the jurisdiction of the District Court was ■incompetent to- disturb'the order. If a bond is insufficient in amount to authorize a suspensive appeal, but is good fot a devolutive appeal, the appeal will not be dismissed, but execution may issue (5 An. 366,12 An. 175), but may be enjoined.

Tt was within the province of "the lower court to say if the appeal was suspensive or devolutive, and to inquire into the question whether the appellants presented such sureties as the law required* It declared the-appeal suspensive; and.the security furnished for the amount is not questioned. We have examined the numerous authorities cited by the plaintiff, but' they do not militate against the doctrine now announced. We think the bonds sufficient to render the appeal suspensive, and that the relators are entitled to a writ of prohibition as prayed for.

It is therefore ordered, adjudged and decreed that a mandate or writ of prohibition, issue to the Judge of the Second District Court of New Orleans, and to the plaintiffs in the within described suit, No. 29,990 as prayed for in the relator’s petition.

Mr. Justice Taliaferro dissenting:

The judgment appealed from requires the executrix to do a certain act and to pay a specific sum of money. The required act and the payment of the specified sum of money it is impliedly in the power of the executrix to perform.

The appellants hold that the decree of May 1, 1868, against the executrix of J. K. Elgee, was merely a judgment liquidating a claim against a succession; and in that form to be afterward placed on a tableau as an acknowledged debt to be paid in due course of administration according to its rank, if unaltered on appeal. That the order was therefore properly rendered for a suspensive appeal on a bond to cover costs. That the order being complied with and the required bond filed, the case was then beyond the reach of the District Court, which could not legally rescind the order and declare the judgment executory.

It is contended on the part of the appellees that the proceedings in relation to the appeal were ex parte and unwarranted by law; and the same view of the subject seems to have been taken by the judge also when he reversed the order on trial of the rule. The appellees insist that the character of the appeal is fixed as devolutive, inasmuch as the bond was not given for an amount to render it suspensive; and that no law authorizes any other bond now to be given, and that the appellants cannot, upon principles of equity, claim the right to furnish a bond to make the appeal suspensive.

These issues being presented, I have to inquire whether the judgment appealed from belongs to that class of judgments from which suspensive appeals are often taken upon bonds to cover costs only; and whether the judge a quo had legally the right after the appellants had complied with his order, by furnishing the required bonds, to rescind the order and render the appeal devolutive, leaving the appellants free to proceed to the execution of the judgment.

A reference to adjudged cases seems to indicate that generally where suspensive appeals have been taken on bonds to cover costs only, the property to be delivered, or the fund to be divided, was.not in the hands of the appellant, or where the appellant was not ordered to pay anything. In the case of Millaudon v. Percy, 7 N. S. p. 353, the appeal was from a judgment of partition where the property was in' the actual possession of the appellee. In the ease of Heath & Co. v. Vaught, et al., 16 La. 515 the fund to be divided was in court. In the case of Blanchin v. The Steamer Fashion, 10 An. 345, the money to he distributed was notin the hands of the appellant. In that ease the court said — “ The expressions of this artiele (575 C. P.) imply that the judgment to necessitate a bond in one-lialf exceeding its am ount must be one in which the appellant has been compelled to jpay, and do not seem applicable where the party appellant is condemned to pay nothing.” In the matter of the succession of G. W. Parker, 18 An. 645, it was laid down that the judgment appealed from not being, in the language of article 575 of the Code of Practice, for a specific sum of money, a bond for costs only is sufficient to suspend execution. In the case of the State v. The Judge of the Fourth District Court of New Orleans, ex relatione Daniel Hickey, 20 An. p. 108, the court sustained the relator, who contended that as he was not condemned by the judgment complained of to pay a sum of money nor to deliver real estate, a bond of appeal for $250, an amount sufficient to cover costs, was sufficient.

In the case, State v. The Judge of the Second District of New Orleans 16 An. 371, opponents to a tableau of distribution were awarded a sum of money. The executrix was granted an appeal on giving bond and securityas required by law.” The bond given being for a less sum than that required for a suspensive appeal, according to article 575 C. P., the court dismissed the application for a mandamus prayed for to compel the District Judge to grant the relators a suspensive appeal on the bond furnished.

Although it is not in conformity with the intent and purpose of the law, which certainly contemplates an equitable distribution of the proceeds of an estate among its creditors, to permit the execution of judgments against successions for the payment of money to be proceeded with as in ordinary cases by fieri fiadas, yet, I am unable to find in the provisions of the Code of Practice regulating the mode of proceeding in cases of appeal, that there is any distinction in favor of successions, by which an administrator or an executor is exempted from a compliance with article 575- C. P., where he appeals from a judgment ordering the payment of a specific sum of money. I must reiterate the declaration made by this court in the case last referred to, 16 An. p. 371. Eefendng to the requirements of articles 574 and 575 C. P., Chief Justice Merrick said : “We are aware of no law which exempts successions (against which judgments have been rendered) from this rule.” The cases in 16 L. 515 and 10 An. 345, do not make such exception. Articles 575 and 1043 C. P., construed together, seem to me to sustain this opinion.

Coming to the second branch of the inquiry, which relates to the legal light of the Judge a quo to rescind his first order by which he granted the suspensive appeal and under which he accepted the required bond furnished by the appellants, I shall, as in the first branch, refer to the adjudged cases bearing upon the inquiry. In 5 An. 518, the case of The State v. The Judge of the Second District Court of New Orleans, the courp having under consideration the legality of an order of the District Judge in granting a party a suspensive appeal from a judgment which, removed Mm from Ms office of administrator and condemned him to pay a certain sum of money, Mr. Justice Slidell said: “In deciding the application upon this ground (the ground of construing the application for the appeal so as not to involve an attempt by the Judge to violate the law) we are not to he understood as recognizing the position that a suspensive order of appeal illegally granted, would he binding upon the District Judge, especially in a case of this sort where an administrator who has disobeyed the command of the law with regard to the funds in hand,” etc. In the case of Mrs. Perilliat v. A. Fernandez, 16 An. 192, a motion was made in the Supreme Court to dismiss the appeal as suspensive. The court said: It is not the practice of tMs court to decree a qualified dismissal of an appeal such as the rule calls for. Such a decree would be tantamount to an order that execution issue notwithstanding and pending the appeal. It is well settled that an application for an order of that sort must be addressed to the court which has rendered the judgment and not to the appellate court.” In 2 Rob. 551 the case of Stanton v. Parker, the court said in regard to the application of the plaintiff in that court for a rule upon the defendant to show cause why other and solvent sureties on the appeal bond should not be furMshed by him, or in default thereof why the plaintiff should not be permitted to issue execution in a qua; “ This is a matter which has properly to be tried before the lower court, which, though divested of jurisdiction as to the case itself, and its merits has nevertheless the Xiower of pronouncing on the question whether the appeal is or shall be suspensive or devolutive, and to say whether the appellee shall be entitled to take execution or not, notwithstanding the appeal. The law and the Constitution have not given us that power.” In 16 An. 251, the case of Kelly v. Lehman, the court dismissed the appeal on the ground that the bond covered the moneyed judgment but not the amount also of the note the defendant was required by the judgment to deliver. By the ruling in the case of The State v. Judge Buchanan, 13 La. 574, a party may proceed by rule in the District Court after an appeal granted and bond filed, to show'cause why the appeal granted should not be set aside on the ground that the surety on the appeal bond was insufficient and not such as required by law; so if the surety on a suspensive appeal bond is shown to be insufficient, the appellee may have Ms execution immediately.” In Tanner v. King, 10 An. 486, a motion was made in the Supreme Court to dismiss the appeal on the ground that the security on the appeal bond was not a resident of the parish where the bond was given. The motion was overruled, the court saying: The party appellee might have addressed himself to the court of the first instance to test the sufficiency or legal qualifications of the surety .on the appeal bond.” There are numerous precedentsfor that proceed,ing. Id. the caso of Byrne v. Riddell, 4 An. p. 3, a party against whom a judgment was rendered, and who was duly notified of it in December, 1845, applied by petition in the proper court in May, 1846, for a suspen-sive appeal. The Judge’s order on the petition was as follows: Let an appeal be allowed in this case, returned to the Supreme Court on the third Monday in June, 1846, on the appellant’s giving bond in the sum of $600, with J. L. Biddell as security, conditioned as the law directs. A bond was furnished according to the order. ■ Afterwards upon suit brought against the surety, the question was as to whether the appeal was suspensive or- devolutive. The court determining it to be devolutive, remarked : Suppose the order of the Judge had said that a suspen-sivo appeal was granted. It would have been in direct violation of law and being rendered ex parte could not affect the plaintiff’s right to execution which was acquired by the expiration of the legal delay. It is therefore clear that the plaintiff could have executed the judgment after the appeal was granted.”

To the same purport are many other cases found in our jurisprudence, and also in that of other States of the Union. See the case of Cothe v. Crane, Barber’s Chancery Reports, p. 22, and that of Saltmarsh v. Tutriel, 12 Howard, p. 367.

I think there can be no, doubt that the courts of the first instance have full and exclusive jurisdiction on appeals until the party appealing has fully complied with the terms of the law on the subject of appeals, whether, suspensive or devolutive. That until such compliance the Judge of the court a qua is executory, and the Supreme Court has no jurisdiction of the case, and that the court of the first instance is not divested of jurisdiction over the case until the appeal has been formally and regularly taken according to law. I am of the opinion that in the case under consideration it was incumbent upon the appellants to have furnished within ten days from the date of the order of appeal, a bond exceeding by one-half the amount of the sum of money decreed by the judgment to be paid, fulfilling the requirements of article 575 of the Code of Practice. That this case is not one admitting a suspensive appeal to be granted on a bond to cover costs; That the bonds for $500, each given as stated by the Judge a quo at the instance of and upon the suggestion of the appellants themselves, are manifestly very far below the sum that would have been required for a suspensive appeal. That they can avail only to sustain a devolutive appeal. That the proceeding by rule in the lower court to rescind the order first rendered and to make the judgment executory was a legal proceeding the first order having been illegally rendered. I am of the opinion that prohibition applied for ought not to be granted. , .

I concur in this opinion, and dissent from that of the majority of the court. — [W. B. IIymaN, C. J.

ON Application nor Rehearing..

Ludeling, C. J.

We refuse to entertain tlie application for a rehearing in this case, because article 851 of the Code of Practice declares that the court shall pronounce finally and summarily on the right of jurisdiction.

There is no delay necessary to make the order final. The application must therefore be dismissed.


author: Ludeling, C. J.

text:
    No. 1225.
    Pierre Coussirat v. Theodule Olivier.
    In an action of damages for slander where the verdict of the jury ^manifestly contrary to law and the evidence, the Sui>reme Court will not undertake to assess the damages, but will remand the case for a new trial.
    PPEÁL from the Sixth District Court of New Orléans, JDuplanüor, J.

      Fred. .Bttisson <& A. Feries for appellant, Sambola & Fueros for appellee.
   Ludeling, C. J.

A careful examination of the testimony in this case has convinced us'that the verdict of the jury was contrary to law and the evidence. In a case so peculiarly within the piovince of a jury, we would not disturb the verdict, if it were not manifestly wrong.

But we are not satisfied,‘that, under the circumstances, this court should assess the damages.

It is therefore adjudged and decreed that the judgment of this court, rendered.on the twentieth of April, 1868, be avoided; that the judgment of the lower court be reversed, and that the verdict of the jury bo set aside. It is further ordered that this case be remanded to the District Court for further proceedings according to law, and that the appellee pay costs of the appeal.


text:
    No. 1435.
    W. F. Williams v. F. O. Woodman.
    Where the appeal is manifestly taken for delay the judgment appealed from-will be affirmed with damages for frivolous appeal.
    from the Third District Court of New Orleans, Fellowes, J.

      0. lioselius & Alfred Fldlips for plaintiff, Henry J. Leovy for defendant and appellant.
   Ludeling, C. J.

This suit was brought on a promissory note. The defense is a general denial. There was judgment in favor of the plaintiff, and the defendant has appealed.

The evidence clearly sustains the judgment, and it is manifest that the appeal is frivolous.

It is therefore ordered and adjudged that the judgment of the lower court bo affirmed, with ’ seventy-five dollars damages and costs of this court.


text:
    No. 1867.
    John Rooney v. W. H. Brown.
    A contract ■with, the City of Jefferson for curbing and gutter built on the sidewalk within the corporation is not a tax, toll, or impost, within the meaning of article 74 of the Constitution of 1868.
    "Where the amount involved does not exceed five hundred dollars, the appeal will be dismissed.
    from the Second Judicial District Court, Parish of Jefferson, Dug tie, J.

      Geo. L. Bright, Gazabat & Philips for appellant, W. B. Koonts for appellee.
   Howe, J.

The appellee moves to dismiss the appeal on the ground that the amount involved is less than five hundred dollars.

The suit is brought to recover four hundred and twenty-one dollars and sixty-three cents, and .about five, months’ interest, for curbing and gutter built in front of the defendant’s property, in Jefferson City, under a contract with the city adjudicated to plaintiff in pursuance of an ordinance; it being claimed that defendant is liable to plaintiff under the provisions of the act-of 1867. There was judgment for defendant, and plaintiff has appealed.

The question upon • this motion is whether the amount claimed is a tax, toll, or impost in the sense of article 74 of the Constitution, so as to give this court jurisdiction without regard to the amount involved.

The question must be answered in the negative. In the case of the City of Lafayette v. the Male Orphan Asylum, 4 An. p. 1, this court held that the amount demanded by the corporation as a contribution to the expense of paving sidewalks in front of the property of the Asylum was not a tax, and approved the doctrine laid down in the matter of the Mayor of New York, 11 John. 80, in which a similar decision was made. 1't will not be contended that the claim sued upon is a toll or impost. The appeal must therefore be dismissed.

It is therefore ordered that the appeal heroin be dismissed with costs.


text:
    No. 1950.
    —State of Louisiana, ex rel. Michael Welsh, v. The Judge of the Ninth Judicial District of Louisiana.
    Whenever tbe Judge of the District Court is personally interested in the suit he shall call upon the Parish Judge of the parish where the suit is pending to try the case. Constitution of 1868, art. 90.
    for a Mandamus.

      JET. 8. Lasse, Attorney and Agent for petitioner for mandamus.

   Ludeling, C. J.

An application is made to this court for a writ of manckvnws to compel the Judge of the Ninth Judicial District Court of Louisiana to call upon the parish judge of the parish of Rapides to try the suit number eighty and a half on the docket of the Ninth District Court, held in the parish of Rapides.

The answer of the Judge is considered insufficient to justify his conduct. Article 90 of the Constitution of this State declares when the District Judge is personally interested in the suit, he shall call upon the parish judge to try the case. Ordering a suit to be placed on a re-cused docket, simply, is not' a compliance with the requirements of the Constitution.

We think that the order prayed for by the defendant in the suit number eighty and a half, entitled John and W. H. Osborn v. Michael Welsh, should have been granted.

It is therefore ordered that the mandamus issued in this case commanding the Judge of the Ninth Judicial District of Louisiana to call upon the parish judge of the parish of Rapides, to try the case of John and W. H. Osborn v. Michael Welsh, ponding in the District Court held in and for the parish of Rapides, be made peremptory.


author: Howell, J.

text:
    No. 1999.
    P. M. Lapin v. P. M. B. Lapin et als.
    The only question presented on an appeal by a third party from an order of seizure and sale is, had the Judge who granted the order sufficient evidence before him to authorize the issuing of the writ. A third party appealing from an order of seizure and sale, may avail himself of all that is in the record that affects his rights; but the validity of the mortgage on which the crder of seizure is based cannot be inquired into on such appeal.
    from the Fourth Judicial District Court, parish of St. James, Beauvais, J.

      Bellotes & Mills, Boche & Begendre, for appellees, L. Gastera aud G. Hunt, for appellant.
   Howell, J.

Mrs. Longpre Pitzgerald, a third person, alleging that sbe is a mortgage creditor of the defendants, and that she is aggrieved by tbe order of seizure and sale issued in tbis suit, has appealed therefrom, and the first question presented is, has she such interest as to maintain this appeal ?

The only inquiry on such-appeal is, whether or not the Judge .had sufficient evidence before him to authorize his fiat. 6 R. 58; 11 A. 4; and the appellant complains that there is no authentic evidence of two special indorsements on the note hold' hy plaintiff, and he therefore is without right to the same. She can avail herself of all that is in the record, which affects her rights (3 R. 116); hut it is clear that the only interest which she can have in this suit is as to the existence or validity of plaintiff’s mortgage, which cannot he inquired iuto on this appeal. Her mortgage rights cannot be affected by the question, in whom the title to the note in suit legally exists. It is a-question which the defendants may waive, and therefore one of which she cannot avail herself in this form of proceeding. See 7 N- S. 676.

It is therefore ordered that the appeal heroin he dismissed with costs*


text:
    No. 1575.
    Marie Eugenie Mille and Husband v. Clarisse Dupuy and Husband.
    The tacit mortgage allowed by law in favor of minors, on the property of -their tutor dates from the appointment, and the tacit mortgage allowed by law on the property of the husband in favor of the wife to aocure the restitution of her paraphernal property which has come into his hands dates from the time the property was received.
    In a case where the property of the husband is not sufficient to pay the mortgage due his ward, for which he is liable as' tutor, and the mortgage in favor of his wife for the restitution of her paraphernal property which ho has received, the rank and priority of mortgage nrisfc be determined by the date at which they respectively took effect.
    Obligations to pay money accompanied with a mortgage aro classed as movables.
    Where two parties holding claims of equal dignity against a third, enter into an agreement in writing to the effect that one is not to take any legal stops without giving the other notice, and in disregard of tho stipulations in the agreement one of the parties proceeds by seizure and sale he will not be allowed any preference over the other on account of the seizure thus made in violation of the agreement. In such a case the law will place the other party in the exact position he might hayo occupied had he received notice.
    Reporter.- — This case was decided in the month of March, 1868, by the Supreme Court organized under the Constitution of 1864; an application for a rehearing was made which was still pending at the adjournment of the court. The present court on an examination of the application refused tho rehearing in tho month of January, 1869.
    from Fifth District Court, Parish ox Iberville, Posey, J.

      Parróte c6 Pope, for appellants, Provosty, Bousseaux ancl.Pstevan, for appellees.
   Ilsley, J.

In the year 1862, Michel Ilebert, tho legal tutor of the-minor Marie Eugene Millo, thou wife of Joseph A. Breaux, filed in the District Court of Iberville, Ms account of tutorship wliioh represented tho liquidated balance in money, besides other property coming to his ward to ho fifty thousand seven hundred and seventy-five dollars, on which sum tho tutor agreed to pay her interest at the rate of eight percent. per annum from tho thirteenth of May, 1861, secured by legal mortgage on tho tutor’s immovable property, from the nineteenth December, 1856.

Subsequently, on the sixth of January, 1866, Mrs. Clarisse Dupuy, the wife of the tutor, Michel Hebert, obtained against her husband in a suit for separation of property, a judgment for tho sum of fifty-six thousand two hundred and fifty-one dollars and thirty-three cents, with the recognition of her legal mortgage on her husband’s immovable property, dating from tho respectivo periods at which tho several amounts constituting the al ove mentioned sum total were received by her husband. These are tire conflicting claims against Michel Hebert, which have caused the present controversy, and as the debtor’s assets are now insufficient to satisfy both of them, each of the parties to this suit is striving to invalidate the claim of the other. The case is somewhat complicated, and it is rendered more so by an agreement entered into by, or for the parties, to which we shall have occasion presently to refer. Before, however, adverting fo the complications occasioned by the agreement, we will proceed to determino the nature and value of each of the conflicting claims; and first, that of the minor, the plaintiff in this suit.

The final account of tutorship was rendered in court by the tutor to his ward, who had attained the age of majority ia accordance with article 350 of the Civil Code. (See 2 An. 71; 11 An. 523; 8 N. S. 665; Marcade vol. 2, 262. It was found to be correct in every particular, by the ward and her husband, who did not oppose it but prayed for its homologation, and it was thereupon homologated by the court.

The judgment of homologation is not directly attacked for fraud and collusion, and as this court said in Lessassier v. Dishiell, 17 An. 205: ‘ ‘No evidence has been adduced to show that the amount in favor of the minor liquidated by judgment against the tutor, was not really due; said judgment is not attacked as fraudulent and collusive, and it is prima fado evidence that the sum, the payment of which is secured by legal mortgage, is justly due.” See also 1 La. Rep. 379 ; 8 La. 199.

Notwithstanding this, the minor’s claim was abundantly proved on the trial of this case. The interest allowed was eight instead of five per cent, per annum, to which latter rate, as regards the plaintiff, it must be reduced. (2 An. 885.) The judgment being final against the tutor, the ward has no further action against him in relation to the tutorship, and hence, no question of prescription as to the minor’s action against his tutor, can be possibly raised against her.

Second.- — As to the claim q£ the wife, the defendant in this suit, against her husband.

Under the pleadings, the onus devolved upon her to show that the judgment separating her in property from her husband, and fixing her paraphernal claims, was correctly rendered; that the money claimed by her was paid into his hand's, or that he otherwise disposed of the same for Ms individual interest. 1 Hen. page 588, C. C. 2367, 11 La. 558, 6" Rob. 36,18 An. 105,10 Rob 154. TMs she has proved satisfactorily.

The amount of her judgment against her husband is therein stated to be fifty-six thousand two hundred and forty-one dollars and thirty-three cents, the whole of wMch amount came into his hands; but only forty-eight thousand four hundred and fifty-nine dollars of the amount was received by him previous to his appointment as tutor of the plaintiff. Of this last amount, fourteen thousand eight hundred and ninety-two dollars and forty cents is admitted to be a correct charge, and it is proved that, the wife’s inheritance from her mother’s succession, say seventeen thousand eight hundred and seventy-nine dollars and forty-four cents, and also fifteen thousand six hundred and eighty-eight dollars and sixty-four cents, her distributive share of her father’s crops, divided from time to time among his cMldrcn, came into her husband’s hands. TMs is principally proved by the defendant’s brother, who from his relationship to the defendant and his proximity to, and constant social intercourse with her, was in a situation to know all the facts to wMch he testifies. Most of the sums paid to the husband, at different periods, exceeded five hundred dollars, but the testimony of tMs witness alone is sufficient to establish these payments (M. R. 393; 14 La. 346; 2 An. 536; 8 An. 308), although there is other testimony beside in the record.

For tlie sum of forty-eight thousand and fifty-nine dollará and fifty-four cents, received by her husband previous to the 19th December, 1856, the defendant Mrs. Hebert, has a legal mortgage against him on his immovable property, superior and higher in rank to that of the plaintiff, Mrs. Breaux, and this prior mortgage must be first satisfied out of the proceeds of said immovable property. 1 Hen. page 947; 6 La. 26 ; 5 Rob. 349; 4 An. 569; 2 An. 776.

On the first of February, 1866, in virtue of writs of fi. fa., issued on the two judgments in favor of the plaintiff and defendant respectively, considerable property, movable and immovable, was seized by the sheriff. Among the property thus seized, were three promissory notes, drawn by Tessier and Dubuelet, one for $2,500, another for $2,500, and the last for $4,000, all bearing 8 per cent, interest. After the seizure, and before any further progress had been made in regard to it, the parties to this suit, by their respective counsel, entered into the following agreement:

“Whereas, Michelllebert and Eugenie Mille, wife of Joseph A. Breaux, hold certain notes drawn by John Chastant and Alice Chastant, and secured by mortgage; and whereas, it is desirable to foreclose,the mortgage on same immediately; and whereas, a profit for the compromise of the matter of Mrs. Eugenie Millo, wife of Joseph A. Breaux, is on foot: Now, in order to effect such purposes, if possible, it is agreed that neither of us will issue execution in either of said cases, to seize the interest of Michel Hebert in said notes, without giving due notice to the other, and without permitting the other to lay his execution upon same simultaneously if she sees fit; and it is agreed, that the sheriff of the parish of Iberville, shall postpone the sale of the property seized under the writs issued, until further notice from both parties, or until the projet for a compromise shall be definitely settled.”

In view of this agreement, the Chastant notes, which were in possession of Michel Hebert, were delivered up to the plaintiffs counsel for the purpose of putting them in suit, which was done, the petition being signed by the attorneys of both parties.

The contract alluded to, by which the Chastant notes came under the control of the plaintiff, who by the steps she took in regard to them ratified it (if ratification was necessary — 2 La. 140) was evidently passed in mutual confidence and good faith, and. should have been observed in a spirit of fairness. It was a law the parties made to themselves, and neither party can be permitted to violate it. Art. 1895 and 1897 C. CIt was distinctly understood that neither of the parties to it was to issue executions on her judgment to seize the interest of Michel Hebert in the Chastant notes without givjng due notice to the other, and without permitting the other to lay her execution upon same simultaneously if she sees fit. And yet, in total disregard of this agreement in relation to the Chastant notes, the plaintiffs counsel, under the direction of his client, suddenly takes out writs of fi. fa., under the two judgments in favor of the plaintiff and defendant, both writs addressed to the sheriff of the parish of Point Coupee, the residence of Chastant, and proceeds to execute the writ in favor of tlie plaintiff, returning into court the defendant’s writ, unexecuted. It is true, the plaintiff’s counsel notified the counsel of the defendant that under instructions from his client, he 'would disregard the understanding or agreement of the twenty-sixth March, and would proceed in the most speedy manner to execute his (her) judgment without regard to that of Mrs. Hebert. Further, that iiis client had declined the propositions for compromise and they were at an end, and that he returned Mrs. Hebert’s writ.

Notwithstanding due diligence on the part of the defendant, it was impossible for her to make a levy simultaneously with that made by the plaintiff upon the Chastant notes, and this was the result of the breach of contract on the part of the plaintiff, who cannot be permitted to profit by her illegal act. Art. 1940 §2 C. C.

Justice and equity require that the defendant be placed in regard to the Chastant notes in the exact position she would have occupied in relation to them had the contract been faithfully adhered to by the plaintiff. As the defendant is legally entitled to have her judgment satisfied by priority and preference over the plaintiff out of the proceeds of Michel Hebert’s immovable property, it is contended for her, that the Chastant and Vessier and Dubuclet notes, secured by mortgage, fall in the class of immovables, and that she can claim the proceeds thereof to be applied by preference to her claim. This position is untenable, as by articles 466, 3250 and 3256 of the Civil Code, obligations accompanied with a mortgage are classed as movables. Marcade on this question says:

L’hypotheque n’est peont un demimbrement de la propuite de l’im-mouble, un orai jus in re sur cette immouble; c’est un semple jus ad rem ad peemiiam, comme la crienne contre la personne; cur, ce n’est veen autre chose que cette creame elle meme on tuut qu ’elle execue contre 1’immouble. Tome 2, p. —.

The simultaneous seizure of the property of Michel Hebert in the parish of Iberville, under the two writs, conferred upon each seizing creditor a proportionate privilege upon the movables so seized. Art. 722, 723, C. P., which each seizing creditor could have claimed, so long as her seizure was not released by her. Acts of 1855 page 253 No. 119.

It was not released by the agreement of twenty-sixth March, but that of Mrs. Hebert was by her own act released. Not so that of Mrs. Breaux, who under her seizure caused the Vessier and Dubuclet notes to be sold at sheriff’s sale and purchased them herself. Her title to these notes so acquired, was a better one than that which Mrs. Hebert derived from a sale made to her by her husband in part satisfaction of her judgment, whilst the notes were under seizure in the hands of the sheriff, and plaintiff, Mrs. Breaux, is entitled to the proceeds of these notes to be credited upon her execution.

All the questions raised by the pleadings in this case, are thus disposed of.

There are in the record several bills of exception, which as our atten-. tion is not directed to them, we have not noticed. 16 An. 86 j 14 An. 721.

Considering the reasons above set forth and the law and the evidence, it is, therefore, hereby ordered, adjudged and decreed, that the judgment in favor of Eugenie Mille, wife of Joseph Breaux against her former tutor, Michel Hebert, for the amount therein mentioned, with legal interest and legal mortgage on all his immovable property from (he nineteenth December, 1856, the date of his appointment as her tutor, be and it is hereby recognized as valid and of frill force and effect in law.

It is further ordered, that the judgment in separation of property obtained by Mrs. Clarisse Hebert against her husband, with her legal mortgage, anterior in date to, and higher in rank than that of Mrs. Clarisse Breaux, but only so far as the amount of forty-eight thousand four hundred and fifty-nine dollars, be and the same is hereby recognized as valid and of full force and effect in law.

It is further ordered, that the title of the plaintiff, Mrs. Breaux, to the Vessier and Dubuclet notes, be and it is hereby declared valid, and that the proceeds of the sheriff’s sale thereof, be applied pro tanto to the extinguishment of her claim against her tutor.

It is farther ordered, that all the proceeds of the immovable property of Michel Ilebort, seized and advertised to be sold by the sheriff, when sold, or if already sold, be and the same be first applied to the payment of the legal mortgage in favor of the defendant by preference over the legal mortgage of the plaintiff, Mrs. Breaux.

It is further ordered, that the sheriff of the parish of Pointe Coupee, do, on his making his return to the District Court of Iberville under the writ of fi. fa. issued therefrom, pay the proceeds of sale of the Chastant notes into the said District Court, and that the same shall be divided ratably between the parties plaintiff and defendant, in proportion to the amounts of their respective judgments against Michel Hebert, in the same manner as if their seizures had been made upon the notes simultaneously according to their agreement.

It is further ordered, that the case be remanded to the District Court to apply the proceeds of the property of Michel Hebert, now subject to the claims of the parties to this suit, or what may remain due thereon, respectively, in accordance with the rulings of this decree. And it is finally ordered, adjudged and decreed, that so much of the judgment of the District Court as conflicts or is at variance with this decree, be annulled, avoided and reversed; otherwise, that it be, and is hereby affirmed. The costs of the appeal to be paid by the defendant and ap-pellee.'

Judge Labauve recused.

Rehearing refused.


author: Wvlt, J.

text:
    No. 1450.
    David R. Fox v. Charles A. Weed.
    A judgment and certificate of discharge hy the Bankrupt Court will operate a perpotual bar to further proceedings in the State Courts against the bankrupt, on demands that existed before the decree. Bankrupt Act sec. 31, approved March 4, 1867.
    A PPEAL from tlio Sixth District Court of New Orleans, Duplcmtier, J.

      T. M. McGill, for appellant, Sullivan, Hillings cfe Hughes, for appellee.
   Wvlt, J.

This is an action for the value of two hundred cords of wood, which plaintiff alleges was taken by defendant from his plantation, in the parish of Plaquemines, in 1862.

Defendant pleaded the general denial, and the prescription of three years.

There was judgment in favor of defendant, and .plaintiff has appealed.

Defendant pleads in bills court that he has been adjudged a bankrupt according to the provisions of “An act to establish a uniform system of bankruptcy throughout the United States,” passed by the Congress of the United States, and approved second March, 1867. He also flies Ms certificate of final discharge granted’ on the thirtieth November, 1863. by the honorable United States District Court' for the District of Louisiana.

We think the proceedings in bankruptcy and the final discharge of the defendant, Charles A. Weed, a complete bar to further proceedings in this court, and that this court has no further jurisdiction of the case, (Bankrupt Act sec. 34).

It is therefore ordered that this appeal be dismissed at the cost of appellant