author: DeBlanc, J. Egan, J.

text:
    No. 6926.
    The State vs. John Williams.
    When no bill of exceptions is taken to any of the rulings of the lower judge during the trial of an application for a change of venue, his decision on the application, can not be reviewed by this court.
    The clerk of the Criminal Court is not aualified to act as a jury commissioner, under the Act No. 14, approved March 8,1877, until he has taken the special oath ’ prescribed by that act. His failure to take that oath before participating in tlio drawing of a jury, vitiates the drawing.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Marks, J.

      II. N. Ogden, Attorney General, for the State.

      James D. Augustin for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant was indicted for murder, found guilty of manslaughter and sentenced to hard labor in the State Penitentiary, for the space of twenty years. He has appealed and alleges that the verdict returned against him, and the sentence based on that verdict, should be sot aside and avoided, because:

1, Two applications made by him, one for a change of venue, the other for a continuance of the ease, were improperly denied.

2. The jurors by whom ho was indicted and tried were not legally drawn, inasmuch as the Clerk of the Court who acted as a member of the jury commission and assisted in the drawing, had not then taken— in that capacity — the oath required by law. This objection was urged on the first day of the term of the court.

8. The record does-not show that a grand jury was empanelled, nor who composed it.

Defendant is a white man: he killed — in the parish of St. Charles— one Joseph Johnson, who belonged to the colored class, and the application for a change of venue is founded on the facts that — in said parish— the jury is composed of exclusively individuals of the same class as the deceased — that the homicide created considerable excitement and commotion in the locality where it occurred, and that several colored men manifested the intention of lynching him and hanging him without judge or jury — that, on account of the prejudice thus existing against him, he could not obtain an impartial trial in either the parish of St. Charles or any other parish of the Fourth Judicial District.

1. The facts that the killing of a human being created a considerable excitement, and that, if tried where the alleged crime was committed, the prisoner would be tried by j urors necessarily taken from the class to which the deceased belonged, are not of themselves sufficient to authorize a change of venue. The excitement which prevails on those grave occasions does not constitute that prejudice which disqualifies an entire community from entering the jury-box, to ascertain and determino whether the law has or has not been violated, whether an accused is or is not guilty of the commission of the crime charged against him.

As to the other branch of this objection, we can only say : that tho whites are thoroughly convinced, and that the blacks should realize that j ustiee must be done — not only to all — but by all. They are now — as the whites — called upon to pass upon the rights, wrongs, life and liberty of others — and, in the interest of their own race, they must learn how to impartially try, convict or release a prisoner, whatever may be the color of his skin.

Wharton Crim. Law, 7th ed. vol. 1, No. 469, paragraph 4.

As regards the locality where the trial is to take place, the rule is a constitutional one: the accused must be tried in the parish where it is alleged that the crime has been committed, unless there the public mind be clouded by and harbors a prejudice for or against the prisoner.

In this case, the District Judge decided that the apprehended prejudice did not exist, and, as no bill of exception was reserved to any of his rulings during the course of the trial of defendant’s application for a change of venue, his decision on this point can neither be reviewed nor reversed.

2. Was tho jury regularly drawn? The 3d section of act No. 44 of the Legislature, approved on the Stli of March, 1877, provides — in substance — “that the several District Judges throughout the State, shall select four discreet citizens, who — with the clerk of the district court, shall constitute a jury commission for each parish, etc., and that — before entering upon the discharge of their duty, each member of the commission shall take an oath faithfully to discharge the duties imposed upon him by this act.”

The Clerk who assisted in the drawing of the jury by whom the prisoner was indicted and tried, had not — when ho so assisted — taken the oath prescribed by the act of -1877. Tho presiding Judge held that be would judicially notice that the Clerk was a sworn officer. That was not sufficient — for the law expressly declares that he is a member of the jury commission, and — not that only the four citizens shall be sworn — ■ but that each member o£ that commission shall take an oath, the very terms and form of which are specified in the act. When must each of those commissioners take that oath? Before entering upon the discharge of their duty as such. This, the Clerk did not do : he did not qualify as a jury commissioner, and that omission did vitiate the drawing of the jury by whom the accused was indicted and tried.

The act of 1877 provides, it is true, that three members of said commission shall be a sufficient number to perform the duties imposed upon it, but it also provides — in terms too clear and too imperative to be disregarded, that no one shall be qualified as a jury commissioner without being sworn in that capacity, and — by an irresistible inference — that, before so qualifying, no one shall participate in the drawing of juries. What three of the commissioners might have done without the presence of the others, the whole commission could not legally do with the participation of the unsworn clerk. His duties are the most responsible of those which devolve upon said commission : he makes, under its supervision, theproces verbal of its acts, the list of persons from whom the jurors are to be drawn, keeps a record of the drawing, showing the weeks for which the jurors are to serve, delivers to the sheriff and publishes, in the official journal, a list of their names, and — besides—the jury-box, with the evidence of each separate drawing, is loft in his custody. All this he does — not under any power vested in him as clerk, but under the special power conferred on him as a commissioner. The regularity of his acts — in that capacity — or rather the presumption of that regularity flows from, and — under no circumstances — can precede his qualification, which springs and dates from the taking of the special oath prescribed by the act of 1877, an oath different from that administered to clerks, and destined to secure the performance of a newly created duty, imposed upon him in a newly created character, added and attached to his official title and official capacity, as the Clerk of the District Court.

The Legislature might have dispensed an already sworn officer from taking the additional oath prescribed by the act of 1877, but it did the very reverse, and — from the carefully selected and reiterated terms of the act — the Legislature intended to do the very reverse — for, by merely looking at the provisions of the statute, one can see that the Clerk is a member of the jury commission, that each member of that commission is commanded to take the prescribed oath — that, before complying with that imperative condition, not one of the commissioners is qualified, not one' is authorized to enter on the discharge of his duties. The statute •expressly directs that the oath shall be taken before, and — in this case— it was taken after the imposed duty had been accomplished.

In this instance, the selection of the jurors was not legal, and the Inevitable result of that illegal selection was to affect the composition of ■the grand and petit j ary, the validity of the indictment, the verdict and the sentence.

The prisoner has not been in jeopardy, was and stands charged with the crime of murder, and — as no prescription bars the prosecution of that crime, he should not be released on account of the informality ■which compels us to reverse the judgment pronounced against him.

It is, therefore, ordered, adjudged and decreed that the indictment ■filed on the 8th of May 1877, in the District Court for the parish of St. Charles, against John Williams, for the alleged murder of Joseph John•son, is quashed and avoided, and that the verdict, sentence and judgment appealed from be and they are hereby annulled and set aside.

It is further ordered that said John Williams be held in custody until after the adjournment of the first session of the grand jury of the parish of St. Charles, which shall be therein empanelled after this decree is returned to the lower court, to answer to such charge as may be preferred against him for the alleged murder of Joseph Johnson.

The Chief Justice dissents from this opinion and decree.

Dissenting Opinion.

Egan, J.

The law makes the Clerk ex-officio a member of the board ■of jury commissioners. I think he is subject to no other qualification, ■and that he was not required to take a new or additional oath, and such I believe to have been the uniform practice in like cases. His membership and right to act as a member of the board of jury commissioners was complete by the appointment and terms of the law itself, and the duty to be performed being ex-officio, by reason of his office of clerk he acted as jury commissioner under all the sanctions of his official oath ■and obligations. I think the view taken by the district judge was ■correct, and that the provisions of the law in regard to the oath of members refer to those who do not act ex-oficio. This is the more manifest when it is recollected that, almost from time immemorial, the clerks of courts as such have acted and been required to act in drawing juries. I therefore dissent on this point from the views of the majority ■of the court and from the decree.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6896.
    Succession of R. H. Baily vs. M. A. Becnel.
    The suit brought by an oxeoutor against a third person who is the undivided half-owner oí certain property, o£ which the succession owns the other half, for the-purpose of effecting a partition of the property, and also for a settlement of accounts with the defendant, does not involve probate matters, and therefore the probate court in which the succession was oponed has no jurisdiction of" the suit.
    REPEAL from the Second District Court, parish of Orleans. Tissoi...

      Kennard, Iiowe & Prentiss for plaintiff and appellant.

      Edward Phillips for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 13th of December 1877, George W. Baily — the-executor with seizin of the last will of R. H. Baily — filed in the second1 district Court for the parish of Orleans, in which the testator’s succession-is opened, a petition in which he alleges :

“ That since his appointment as executor, he has been administering this estate and making payments on account of the various legacies, as rapidly as was consistent with the best interest of the succession and of tlie legatees. That among the assets of this estate is an undivided interest in a certain sugar plantation, and an undivided interest in all' the property and all the movables thereon, situated in the parish of' St. John the Baptist, in this State, fully described in an inventory thereof,, made May 17th, 1872, by Zenin Miller, deputy recorder of said parish,, and filed in this Court, May 20th, 1872; which inventory is annexed to- and made part of this petition, for a detailed description of said property..

“Your petitioner further shows, that a partition of said propert3*" has become necessaiy, in order that petitioner may realize, for distribution among the legatees, the share of the succession therein, the3r being-unwilling longer to continue in joint ownership with Michel Alcide Becnel, a resident of the parish of St. John the Baptist, who was the owner of the other undivided half of said property, or with any person claiming to be his transferee. That such partition can not be made in kind,, as the property can not be conveniently divided, and that a sale at public auction will be necessary in order to effect the'partition.

“Your petitioner further shows, that as a necessary incident to said partition it is important to have a full, fair and complete adjustment of accounts connected with said plantation, and between the deceased and' Ms estate and said Becnel, in order to ascertain what portion of the proceeds of said sale shall belong to each owner or his representatives.

“Your petitioner further shows, that said accounts were, for the-most part, kept by the late commercial firm of G. M. Bayly & Pond, of' this city, and, since their dissolution, by other commercial Arms domiciled in this city, and by petitioner, the executor, who has always resided in this parish,' and kept the books of the estate here, and that said books cover the space of nearly eight years. * *

“ Your petitioner further shows that he discovers, from such examination of the accounts as he has been able to make without the aid of the Court, that said part owner, Becnel, has become so largely indebted! to this estate by reason of his failure to pay his share of the purchase-money and after-expenses, since incurred with his consent, in running said plantation, that your petitioner believes and avers that, upon a full settlement of the affairs of said plantation, said Becnel or his transferee will have no interest or a very small interest in the proceeds of partition sale aforesaid. * *

“ Wherefore petitioner prays for citation of said Alcide Becnel, and of Mrs. A. Provosty, wife of said Michel A. Becnel; that experts may be-appointed and sworn to inventory and appraise said property, and to report whether or not it can be divided in kind by commission issued to-that effect, according to law ; that experts may be appointed and sworn to examine and report on the adjustment of said accounts; and, after due proceedings, that there may be judgment in favor of this estate and against said Becnel, and his transferee, if any, for whatever amount-may be found to be due by him to this estate; that if said property-can not be divided in kind, the sale thereof be ordered, according to law, to effect a partition, and that the proceeds of said sale of said plantation and movables may be applied by preference to the payment of the interest of this estate in said property, and the amount found to he due this estate by said Becnel, and for like relief against his transferee, if any there be.”

The defendants, Becnel and his wife, except to the jurisdiction' of the second district Court, on the grounds that they are domiciled in the parish of St. John the Baptist, in which is situated the property referred to in said petition, and that the district court holding sessions in and for said parish has alone jurisdiction of the executor’s action.

The Constitution provides that, the jurisdiction of the second district court shall be exclusively a probate jurisdiction — and the law “ that the second district court shall be strictly a probate court, and shall have exclusive jurisdiction of only successions and probate canses.” C. art-.. 83 ; Rev. St. Sect. 2011.

Is the suit Aled by Baily’s executor against Becnel and his wife a probate cause, one which relates to exclusively a succession, and in which alone the legal representatives of that succession are concerned ? The executor asks the partition of movable and immovable property situated in the parish of St. John the Baptist, belonging partly to the-estate of R. II. Baiiy and partly to one of the defendants. He asks— besides — a full, fair and complete adjustment of the accounts of the planting partnership which existed between the deceased and Becnel, and a judgment against the latter for whatever amount may be found to be due by him to the estate of the former.

No branch of that clear demand constitutes a probate matter. The defendants do not hold as heirs, under a title derived from the succession, and their interest is entirely distinct from that claimed by the executor. ’When ascertained, iixed, severed from that of the defendants, the interest of the succession will pass under the control of the second district court, there to be administered upon and disposed of in accordance with the terms of the will, and there — it may be — to be again partitioned, and then only between those whose rights are predicated on a title derived from the succession, and held in common by them as heirs or legatees. The suit in and by which the representative of a succession seeks to recover, from a stranger, property or money, has none of those features which characterize a probate cause.

To sustain his demand and defeat defendants’ exception, plaintiff relies on three articles of the Civil Code which we here transcribe:

“Art. 1135 (1128). If the deceased was in community or partnership with any one who has survived him, the curator of the vacant succession, or of absent heirs, is bound, immediately after his appointment, io sue for a partition, in order that the part which belonged to the deceased, in the community or partnership property, be ascertained.”

“Art. 1137 (1130). Suits for partition must be instituted before the judge of the place where the succession is opened, and the co-prop>rietors and partners of the deceased, as well as his heirs, present and represented, must be cited, to appear before the judge in such suits, though their domicile or ordinary place of residence be out of the jurisdiction of the judge.”

“Art. 976 (971). All the rules relating to the acceptance, renunciation or partition of successions, the collation of goods and payment of debts, contained in this title are applicable to testamentary, as well as intestate successions.”

Under the laws enacted after the adoption of the Constitution of 1812, the probate court’s jurisdiction was concurrent with that of the district court in suits for a partition, when there was no dispute as to the title of the property to be partitioned — 4 M. N. S. 78, 485, 509 ; 5 M. N. S. 9 ; 7 M. N. S. 469 ; 6 L. 423; 9 L. 584 — and this court held, in April 1838, “ that — then'—the authority of the district court, to ordain and regulate a partition of property, owned in- common by any other title than hereditary succession, at the suit of a co-proprietor, could hardly be questioned.” 12 L. 219.

In 15 L. 33, Judge Martin — as the oi;gan of the court — said: “.The art. 924, No. 14 of the Code of Practice, must — in' the latter as well as the first part of it, be confined to partitions of successions, because successions are the peculiar objects of the Court of Probates, which are courts of special and limited jurisdiction, and which can not be extended by implication to the exclusion of courts of general jurisdiction.”

10 L. 90 ; 15 L. 517 ; 1 R. R. 226 ; 11 R. 349.

In the ease of Boutté against Boutté, we said in January;

“Here is not a succession to be settled, and property exclusively its oum to be partitioned among the heirs of that succession.

“If after Charles’ death, Erangois, who survived him, had immediately thereafter sued the succession of Charles for a partition of this property, can it be doubted that the court of ordinary jurisdiction would alone have had cognizance of the action. How is the case altered when Erangois being also dead, a partition is sought .of the property owned by two distinct juridical beings?

“ The Second Court had not jurisdiction of the action, just as it is without jurisdiction of an action of partition between two individuals who are majors and own property in common, in their own right. * * The articles of the Code, and the decisions of this court, cited by appellee, have reference to cases wherein the co-heirs of the same succession are seeking to divide the property which is common to all of them, and which they derived from a common ancestor.”

30 A. 182,144.

It will be observed that, though the 1135th article of the Code, cited by plaintiff, ordains that — if the deceased was in community or partnership with any one who has survived him, the curator shall sue for a partition, it does not indicate in what court the suit is to be brought, nor does art. 1137 provide that it shall be brought in the probate court. It merely provides that suits for partition must be instituted before the judge of the place where the succession is opened, and— though they reside out of the jurisdiction of 'that judge, heirs, co-proprietors and partners must appear before him — but in what case? In every case of partition of a succession among co-heirs — C. P. 164 — and also when the property to be divided is situated at the place where the succession is opened — otherwise, the action for a partition must be instituted in the parish where the property is situated, and — wherever they may be domiciliated, there the interested parties must be cited t,o appear. The Code so expressly commands. C. C. 1290 (1304); C. P. 165, No. 1.

So long as the succession is not settled and has not ceased to exist as a succession, so long as those therein interested preserve their quality of heirs, all suits which they may bring against each other, and all real and personal actions, or others, which relate to the unsettled succession, must be brought where it is opened — C. P. 164 — : but, when — by its acceptance — the succession disappears and the co-heirs become co-proprietors, the action for a partition among them is governed by articles 1290 (1304) of the Civil Code and 165 of the Code of Practice.

26 A. 611; 25 A. 143.

The present suit is not one to place the heirs in possession of property belonging to exclusively a succession; but one by an executor to divide, with third parties whose title is acknowledged, property belonging partly to those who are sued and partly by the legal representatives of a deceased person. It is a suit between co-proprietors and which should havo been brought in the parish of St. John the Baptist, where the property sought to be divided is situated.

Defendants’ plea to the jurisdiction was properly maintained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


author: Marr, J. Spencer, J.

text:
    No. 6975.
    C. S. Stewart vs. F. P. Mix, Sheriff, et al.
    ■Where a wife, authorized and assisted by her husband, purchases property in her own name, and tho samo is ever afterward given in to the tax collectors by her and hor husband as her property, and tho husband authorizes and assists her to execute a mortgage on the property, ns her property, to secure a separate debt of hors, tho husband is thereby estopped from setting up any title to the property, to tho prejudice of a judgment creditor of the wife.
    The fact that a j ustiee of this court was of counsel for certain parties in two former suits, is no ground for his recusation in a subsequent suit in which the same- . parties aro litigants, when it appeal's that the validity of none of the proceedings, and the decision of none of tho questions involved in the previous suits, are put at issue in the subsequent suit.
    A PPEAL from the Sixth Judicial District Court, parish of Tangipahoa. j\. Muse, Judge ad hoc.

      Addison & Edwards and E. E. Russell for plaintiff and appellee.

      M. A. Striclcland and Robert R. Reid for defendants and appellants.
   The opinion of the coart was delivered by Marr, J., on the original hearing, and by Spencer, J., on tho rehearing-.

Marr, J.

In 1854 Mrs. Mary W. Stewart, wife of Charles S.'Stewart, authorized and assisted by him, purchased a lot of ground, number six, in the square number seven, in the town of Amite, now Amite City. The convej'ance was made to her by notarial act; and, in 1856, it was recorded in the parish in which the property was situated.

Community existed between these parties up to August 2,1861, when It was dissolved by judgment. In 1867 Mrs. Stewart bought some property of Brooks, and gave him her note for $3000, on account of the price; and by decree of this court, in November, 1874, she was condemned to pay that debt. 26 A. 714.

Brooks died ; and his heirs caused execution to be issued upon that judgment, under which the sheriff seized, and was about to sell the lot number six, when the sale was arrested by injunction, at the suit of the husband, Charles S. Stewart, who alleged that he was the owner of the property, and that it was his homestead; that it does not exceed in value $2000, and that his wife does not own in her own right property to the amount of $1000.

The heirs of Brooks answered by general denial, and they pleaded, specially, that “C. S. Stewart, plaintiff, is estopped from claiming the ownership, and setting up any title to the property described in his petition, having repeatedly and publicly acknowledged the same to be in his wife, M. W. Stewart.”

The district judge having recused himself, the case was tried by James H. Muse, Esq., a member of the bar, judge acl hoc. The judgment was in favor of plaintiff, perpetuating the injunction; and the defendants appealed.

It was proven that the lot number six wasi purchased during the existence of the community; that its value does not exceed $2000; that the wife does not own property to the amount of $1000; that there are several children of the family; and that the family residence is on this lot.

We do not think it necessary to decide whether the property situated in a town would be exempt under the homestead law; because, if it belongs to C. S. Stewart, it is not liable to seizure under execution on a judgment against his wife, for her separate debt; and, if it does not belong to him, he can not oppose the sale and claim the benefit of the homestead exemption.

The notarial title in the name of Mrs. Stewart was-offered in evidence, and a copy of the judgment in 1861, dissolving the community. Copy of the decree of this court, as reported in 26 A. 714, was also introduced; and the returns for a series of years made by Stewart and his wife to the tax collectors, showing that Stewart returned as his entire real estate certain lots of small value, and that Mrs. Stewart returned the lot number six. Called as a witness, Stewart said the property was assessed in the name of Mrs. Stewart because the title was taken in her name; that the purchase was made during the existence of the community, and that he paid the taxes.

Defendants also offered in evidence a copy of a mortgage, granted by Mrs. Stewart, authorized and assisted by her husband, on this lot and several others, to secure to William Acy $2000, “cash loaned to her for her separate and individual benefit.” This act is dated April 8,1867 ; and it was recorded on the twenty-seventh April.

Several bills of exception were taken during the trial to the ruling of the court in admitting the testimony offered by defendants. It is not necessary to notice them in detail. It suffices to say that all the evidence thus offered tended to show title in the wife, and recognition and public acknowledgment of her title by the plaintiff, her husband ; and it was properly received.

No part of the proceedings in the suit for dissolution of the community was offered, except the judgment. It decreed that the community be dissolved ; that plaintiff have the administration of her separate estate, and of such property as she might thereafter acquire ; that there be judgment of nonsuit on her “demand for money, slaves, and land,” reserving to her the right to establish her claim to the money and property in a future suit.

As this judgment in no way indicates what money or slaves or land the wife claimed, it is of no value, except to show the simple fact that such a judgment was rendered on the second August, 1861.

Plaintiff relies solely on the legal presumption that all property purchased during the existence of the community belongs to the community ; and the judge ad hoc based his judgment on that presumption. We have frequently had occasion to say that this, like all other more presumptions, may be rebutted by proof. It is certainly not sufficient in this caso to establish title in the husband.

Eor nearly a quarter of a century this property has stood upon the public records in the name of the wife; and nearly seventeen years have elapsed since, by solemn judgment, the husband and wife were separated in property. Luring this long period her title has not been attacked or questioned, so far as the record informs us. If this were a suit by a creditor of the husband to subject the property as his, it would be manifestly unjust to require of her the same strictness of proof now that would have been proper when the acquisition by her was recent, and when she might have proven by witnesses now dead, or beyond her reach, that she made the purchase with her own paraphernal means, administered by herself exclusively.

But that is not the question we are dealing with. The husband, in order to shield the property from the just pursuit of his wife’s separate creditors, asks the court to presume that the conveyance to his wife, in 1854, to which he was a party, was a mere sham, a false pretense; that in 1867 he authorized and assisted her in an act of mortgage to secure a loan for her separate, individual benefit, and thus made himself a party to a false assumption of ownership ; and that from year to year in the annual returns of the property for taxation he contributed actively to the repeated, public, false assertion of ownership ; thus interposing a barrier to the pursuit of the property by his own creditors.

The reported decisions of this court teem with cases in which, upon the mere legal presumption resulting from the date of the acquisition, property the title to which was in the name of the wife has been subjected to the debts of the community. This is the first case which has fallen under our observation in which the husband has sought to arrest the sale of property standing in the wife’s name, at the suit of her creditors, or has asserted title in himself for any purpose on this mere legal presumption. See Meadows vs. Dick, 13 A. 377.

This whole proceeding is bad in law, and equally bad in morals. If the wife is not really the owner of this property, the husband has done all that he could to establish and confirm the ownership in her, and to mislead the public as to the real ownership. If her title is apparent, not real; if it rests upon a basis of false pretenses and assumptions, the husband’s hand must not be the first that is raised to strike down the fabric of which he was the chief architect.

Defendants have prayed for the statutory damages, twenty per cent on the amount enjoined ; but they did not introduce the writ under which the seizure was made, nor offer any evidence which would enable us to ascertain the amount on which damages should be estimated. They are clearly entitled to damages for the abuse of the process of injunction; and their right to sue for and recover them must be reserved.

The judgment of the district court is therefore annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the injunction granted in this case be dissolved; that the demand of plaintiff be rejected, and his suit be dismissed ; that the right of defendants to proceed against the plaintiff and his sureties on the injunction bond for damages for the wrongful obtaining of the injunction be reserved; and that the said Charles S. Stewart, plaintiff and appellee, be condemned to pay all the costs of this proceeding in this court and in the district court.

On Rehearing.

Spencer, J.

It seems' that in 1869 suit was instituted by one E. H. Caldwell against Mrs. M. W. Stewart and husband, C. S. Stewart, on a mortgage note of the wife for S3000. In that suit, it is said, Mr. Justice Marr, of this court, was of counsel for Mrs. Stewart and husband. That suit was dismissed, as in case of nonsuit, without trial. Subsequently, it was renewed in the name of M. D. Brooks, for use of Caldwell vs. Mrs. Stewart and husband, but the style of the suit was “Brooks vs. Stewart.” This last suit resulted in a decree of this court, 26 A. 714, in favor ■of plaintiff. In this last case, Mr. Justice Marr was not pretended to have been of counsel. The present suit is an injunction by the husband, C. S. Stewart, against the sale of certain property under execution of said j udgment in Brooks vs. Mrs. Stewart and husband, on the ground that the property seized belongs to the community, and is not liable to seizure under a judgment against the wife. The property seized is not that upon which the judgment in Brooks vs. Stewart recognized the mortgage. The present suit in no way involves the validity of the judgment of Brooks vs. Mrs. Stewart; nor the title or status of the property mortgaged in that case. But the counsel of C. S. Stewart, in his application for rehearing, for the first time suggests that Mr. Justice Marr, who delivered the opinion herein, should have recused himself; and insisted upon this as one of the grounds for rehearing. We do not think that the facts stated necessitate or even authorize a recusation. The sole question involved in this suit is whether a certain piece of property, in no way connected with the previous litigation, is the property of the community between C. S. Stewart and wife; and whether it is liable to seizure for the wife’s debt. Justice Marr was never “employed or consulted” in reference to any of these matters, as an attorney. We do not-see how the fact, if true, that he appeared as an attorney for Mrs. Stewart and husband in defense of the first suit, which was ■dismissed, or even in the renewed suit, in which Brooks obtained the judgment, could furnish cause of recusation in this suit, unless the validity of some of the proceedings in said previous suits or some of the questions then involved were brought again in question in this suit. We have seen that such is not the case; that the only thing connecting the present suit with the previous ones is that the judgment sought to be executed and enjoined was rendered in said former suit; but the validity, legality, and effect of that judgment, or of any of the proceed-. ings leading to it, are in no wise contested in this case. Justice Marr, however, though unconscious of having ever been of counsel at all, induced us to grant a rehearing.

We have reconsidered with great care the facts of this case, and the very elaborate and able argument of plaintiff’s counsel; but we are ■confirmed in the correctness of the decree heretofore rendered. The fundamental error of plaintiff’s argument is in supposing that Stewart, the husband, has the same rights as Ms creditors would have if attacking the sale. The question as to Stewart is one of estoppel, ilo principle of law is better settled than this, that one will not be heard in his own interest to controvert or deny the truth of a state of facts which he has openly and publicly led others to believe, and upon the faith, of which they have acted.

This property may indeed be community property, but C. 8. Stewart has, by his acts and conduct, debarred himself from asserting it to the prejudice of third persons. Thus, I may be the undoubted and absolute owner of a piece of property, yet if by my acts and conduct I hold another out to the world as owner, I will not be heard'to'assert my claim to the prejudice of those who may have been misled by me. We see no reason to doubt the correctness of the opinion and decree heretofore rendered. . ' •

It is therefore ordered, adjudged, and decreed that our former judgment and decree remain unchanged.

Mr. J ustiee Marr takes no part'in this decision.


author: DeBlanc, I. DeBlanc, J. Marr,-J.

text:
    No. 6632.
    D. Landry vs. François Victor.
    Where a mortgage debtor who has taken a suspensive appeal from an order of seizure and sale is east on appeal, the mortgage creditor, who has subsequently obtained a judgment against the debtor for the balance due after deducting the proceeds of the mortgaged property, has a right of action, for the amount of the judgment, against the surety on the appeal bond of the mortgage debtor, from tbe moment the return of nulla bona has been made on the execution issued under the judgment.
    ^ PPEAL from the Fourth District Court, parish of Orleans. Lijnch,

      Eobert J. Ker and A. L. Tucker for plaintiff and appellee.

      Louque & Fernandez for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, I.

The grounds urged for the dismissal of this appeal, we consider as untenable; but, the conclusion to which we have come, dispenses.,us from the necessity of discussing those grounds.

D. Landry, as holder of a claim secured by mortgage, applied for and obtained an order commanding the seizure and sale of the property subject to that mortgage. His debtor, Frangois. Victor, the owner of said property appealed from the order of seizure and sale, and Lacroix became his surety on his appeal bond.

That bond is for $3000: its condition is “ that Frangois Victor shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the sale of his estate real and personal — if he be cast in the appeal: otherwise that said Lacroix shall be liable in -his place.”

Frangois Victor was east in the appeal, and the decree appealed from and affirmed by this Court was not satisfied by him, nor satisfied by the sale of his property. Has Landry an action on the bond signed by Lacroix, as the security of Yictor? Does that bond contain an obligation which' may be enforced against any one? The counsel representing appellant, the transferree of one of the legal representatives of said Lacroix, contend that his estate is not bound, because:

1. As the judgment was but an executory proceeding, and the mortgaged property has been sold, the condition of the bond has been fulfilled and the surety discharged.

2. As no writ could have been issued on the executory process and returned nulla bona, no recourse can be had against the surety.

3. There was no decision rendered on the validity of plaintiff’s claim, and the appeal did not deprive him of any right.

4. Suretyship can not exceed what may be due by the debtor, nor contracted under more onerous conditions.

This defense is certainly ingenious, but rests on technicalities,

The order of seizure and sale was issued on an act importing a confession of judgment; from the decree commanding the execution of that confessed j udgment, defendant was allowed a suspensive appeal— the appeal was not successfully-proseeuted — the writ of seizure and sale executed, and the mortgage claim partly satisfied by the sale of the mortgaged property; for the balance, plaintiff obtained a judgment against Yictor, the principal on the appeal bond; from that judgment an execution was issued, and the sheriff’s return is that he found no property of defendant upon which to levy. From the date of that return plaintiff’s right of action on the bond, has accrued.

The law does not make the distinction- contended for by appellant’s counsel, between the Suspensive appeal taken from an order of seizure and sale and any other suspensive appeals, as regards the liability of the surety on the bond. It provides “.that in all cases of appeal to the Supreme Court, or other tribunals in this State, if the judgment appealed from be affirmed, the plaintiff may — on the return of the execution, that no property has been found, obtain a decree against the surety pn the bond for the amount of the judgment, etc.”

Rev. St. of 1870, Sect 37.

C. P. 575-579.

27 A. p. 706-707.

Were we to rule otherwise, to legislate a distinction which is not in the law, which is repugnant to the letter and spirit of the law, which would defeat its object and destroy its value, no creditor would dare— thereafter — proceed by the executory process. That process, now one of the highest guaranties of the creditors, would have to be carefully avoided as an obstacle, an impediment, a danger: instead of hastening, it would invariably retard the recovery of the debt — as, in every case, the execution of a decree based on a confession of judgment, would be suspended by an appeal and obstructed by a nameless bond, by the •counterfeit of. an obligation, by a worthless document which would bind neither the principal nor the surety, neither for the debt nor for the costs.

The real complaint of defendant is that — instead of only one, two judgments have been rendered, two executions issued against the principal on the bond. The condition of the bond is not that if executions issue and any thing be seized and sold, the surety shall be released; it is, when the appellant is cast, that — unless he satisfies the judgment— his surety shall be liable. Not one of the two judgments, not one of the two executions has been satisfied, and the surety is bound for the balance due by Victor to Landry. If not, such a bond has but one effect: to suspend an impending execution: it is good against the creditor alone — never against the principal or his surety.

The district'Judge has, by a correct decree, enforced a plain, a legal obligation.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and.it is hereby affirmed with costs.

M.uiR, J. I do not concur in the opinion and decree pronounced in this case; and reserve the right to assign the grounds of my dissent. hereafter. •

On Rehearing.

DeBlanc, J.

Frangois Victor appealed from an order of seizure and sale, and — to do so — furnished bond in the sum of three thousand dollars, with one Lacroix as his security.

That appeal and that bond suspended the execution of a decree or order — by whatever name it may be called — based on Victor’s own confession of what the law styles “a judgment.”

Does the bond — in such a case — -evidence a legal obligation, one which can be enforced according to its express terms, and against either the principal or security by whom it was subscribed, or is it merely the semblance of an obligation, which can be used — without apprehension or risk — to delay the execution of a confessed judgment?

Our opinion has not changed; we have held and we hold that one who — as security — assists in suspending, by a groundless appeal, the execution of an order of seizure and sale, is liable — to the extent of his obligation- — for whatever amount of the confessed and affirmed judgment is not paid by or recovered from the principal on the appeal bond.

It is, therefore, ordered that our former decree remain undisturbed.

Dissenting Opinion.

Marr,-J.

Landry proceeded, via executiva, on two notes of "Victor,, secured by mortgage, aggregating in principal and interest about $2000; and the order of the judge was indorsed on the petition in the usual, form : “Let executory process issue, as herein prayed for, and according to law.” Yictor appealed from this order, and gave bond in the sum of $3000, with Francois Lacroix as his surety, conditioned for the-satisfaction of such judgment as might be rendered against him on the-appeal. This court rejected certain items of "cost and expense claimed, in the petition of Landry; and affirmed the order appealed from, theappellee paying the costs of appeal. Opinion Book 44, p. 54.

The sheriff proceeded with the writ of seizure and sale. The mortgaged property was sold for $1350; the costs, including attorney’s fees,, amounted to $208 28; the taxes, due for several years, aggregated $662 67; and there remained only $479 05 to be applied to the mortgage debt. Landry then brought suit on the two notes against Yictor, via ordinaria, to recover the balance, $1704 95, with interest and costs;, and judgment was rendered accordingly; on which execution was issued, and returned, “no property found.” He then took a rule on Lacroix,, the surety on the appeal bond in the executory proceedings, to' show-cause why execution should not issue against him. The rule was made-absolute ; and Lacroix took this appeal from the judgment condemning-him to pay the balance, $1704 95, with interest and costs.

The proceeding by seizure and sale is ex-parie, and anomalous. The-creditor exhibits to the judge, in term or in vacation, authentic evidence-of the debt, and of the mortgage by which it is secured; and prays-that the mortgaged property be seized and sold, and the proceeds applied to the payment of the mortgage debt. On this, the judge grants-the order, the usual form of which is: “ Let executory process issue as prayed for, and according to law.” No previous notice is given to thémortgagor; no citation is issued ; nor is any opportunity afforded to him to object to the granting of this order. The first notice he gets is by service of a copy of the order, and a demand of payment; and his-property will be advertised and sold, unless he appeals within ten days,, or obtains an injunction on opposition, .or by separate suit.

No personal judgment is asked for or rendered, and none .can be-rendered against the mortgagor. The proceeding is purely in rem> against the property mortgaged ; and. no other property can be seized, or sold under the order and writ. With the sale of the mortgaged property the proceeding is at an end, functus officio, and the return of the sheriff is the official proof that the mandate of the court, the order-of seizure and sale, the judgment, if that word be preferred, has beem obeyed and fully executed ti the proceeds'cío not suffice to pay the mortgage debt, no further proceeding can be taken in that suit; and the •creditor is compelled to bring a new suit, a suit in personam, against "the debtor, the mortgagor, in the ordinary form, to recover the balance, 3ust as he would proceed on any other ordinary unsecured debt.

It was doubted at one time whether the order of seizure and sale was such a judgment as entitled the mortgagor to appeal. The right of -appeal'was recognized in Day vs. Fristoe, 7 Mart. 239, and in Tilghman vs. Dias, 12 Mart. 691, and it waS conceded in subsequent cases without -serious question. Gurley vs. Croquet, 3 N. S. 498; McDonough vs. Fort, 14 La. 350. The nature and extent of this order were elaborately dis- • cussed in Harrod vs. Voorhies, in 16 La. 254; and the right of appeal con- ■ ceded ; and this was followed in Bank vs. McKee, 2 A. 461; Mathé vs. McCrystal, 11 A. 4; and Riley vs. Christie, 13 A. 256.

In Harrod vs. Voorhies the question was whether the order of •seizure and sale was a judgment in the sense that it prevented the running of prescription ón the note on which it was founded. It was -admitted as settled doctrine, and it is not to be questioned, that an • appeal lies from this order: and the court went on to say that when an authentic instrument importing confession of judgment is presented to the judge, with a petition praying for executory process, he must exam■•ine and decide whether it unites all the requisites of the law necessary to authorize this summary proceeding. ‘-'So far it is a judgment, and ■an appeal must lie from it, as from all other orders of court that might work irreparable injury. * * * * But such a decree is •not a judgment in the true and legal sense of the term, and possesses none of its features. It issues without citation to the adverse party; it decides on no issues made up between the parties ; nor does it adjudicate to the party obtaining it any right in addition to those secured 'by his notarial contract. If such an order was a real judgment, it would ‘be out of the power of the judge granting it to set it aside; after rendering this decree he would be divested of all jurisdiction, and it could be reversed only by means of an appeal, or a separate action of nullity : Whereas, it is every day’s practice for the judge issuing such orders to .-set them aside on a rule to show cause or on opposition ; and in most -cases the proceedings are turned into an ordinary suit,, in which final .'.judgment is afterward rendered. Such a decree, then, can be viewed only as giving the aid of the officers of justice to execute an obligation -which by law produces the effects of a judgment in relation to the par-ticular property mortgaged.” P. 256, 257 ; see, also, Chamblis vs. Atchison, 2 A. 490, 491.

And, again, p. 257: “ Plaintiff’s note and mortgage have not merged • ún the decree made on them, as they would have done in a contradictory judgment rendered by a competent court. If they were liable to prescription, surely the decree of the district judge granting executory process on them could not shield them from its operation.”

The proposition that this order is not a judgment in the true and legal sense of the term, and possesses none of its features, was repeated in the same language in Riley vs. Christie, 13 An. 256, where it was decided that it is not a “ judgment” in the sense of the Constitution, for which reasons must be specially adduced in the order itself. The doctrine that this order does not prevent the running of prescription was not questioned, so far as I am advised, until 1853, when in Rhea vs. Taylor, 8 An. 24, it was decided that service on the mortgagor of notice of seizure interrupts prescription.

This decision seems to rest upon the mere assumption that Harrod vs. Voorhies had been overruled in this .respect by Stanborough vs. McCall, 4 An. 324, and Fortier vs. Zimple, 6 An. 54. In Stanborough vs. McCall, the proceeding via executiva was suspended by injunction; and in Fortier vs. Zimple it was arrested by the opposition of the mortgagor : and, in both cases, the litigation was protracted by the action of the mortgagors. These circumstances distinguish these two cases ; and in any case so long as the hands of the mortgagee are tied, and the enforcement of his rights suspended and delayed by an injunction suit or an opposition, prescription can not run, upon the well-known maxim, contra non valentem. The court did not, in either of these cases,' question the correctness of the decision in Harrod vs. Voorhies ; and the decision in Rhea vs. Taylor is mere assertion, not supported by any principle stated by the court, nor by any previous decision. Citation interrupts! prescription, because the law has expressly so provided ; but the notice-of seizure served on a mortgagor is not a citation ; it has none of the features of a citation, and none of its effects ; and no law declares that it interrupts prescription.

In Rhea vs. Taylor the defendant, in answer to the suit in personam, to recover the balance not satisfied by the sale of the mortgaged property, specially admitted the execution of the notes, and pleaded an open account in compensation “of any amount that may be found due,” etc. After the suit had been pending some five years, he pleaded prescription. The plea in compensation was the assertion, the judicial admission, of mutual co-existing indebtedness; and it was not necessary to place the decision overruling*the plea of prescription on any other ground than that the first plea was an acknowledgment of indebtedness.

In Walker vs. Lee, 20 An. 192, the proceeding via executiva was-arrested by injunction. Subsequently, suit was brought inpersonam; and! defendant pleaded prescription. The court considered the ■ question settled by Stanborough vs. McCall, Fortier vs. Zimple, and Rhea vs. Taylor ; and the plea was overruled.

In Roupe vs. Carradine, 20 An. 244, the proceeding via executiva was; not enjoined; but the writ was returned by order of plaintiff’s attorney-The court lost sight of the fact that this was an abandonment of that-proceeding ; and, on the assumption that Walker vs. Lee, and the cases-there cited, had settled the question, overruled the plea of prescription-Properly understood, Harrod vs. Voorhies is not shaken by Stanborough vs. McCall, Fortier vs. Zimple, and Walker vs. Lee, in all of which plaintiffs-were stopped and delayed in the enforcement of their rights by the acts-of the defendants; and the maxim contra nonvalentem, was perfectly applicable : and in Rhea vs. Taylor and Roupe vs. Carradine the court evidently failed to observe the distinguishing characteristics of the earlier cases relied upon, that in all of them the proceeding via executiva was suspended by opposition and by injunction.

By act of 1846, p. 166, so much of articles 746, 747 of the' Code of Practice as authorized executory process on judgments obtained mother States and in foreign countries was repealed. In several cases orders had been granted making executory judgments rendered in other States which the parties were endeavoring to enforce when the act of 1846 was passed. This court held that the repeal of the law put an end to the proceeding via executiva; and that the j udgment creditors must sue upon their judgments via ordinaria. There could not have been a more authoritative recognition and enforcement of the doctrine laid down in Harrod vs. Voorhies and Riley vs. Christie, that the order of seizure and sale is not a judgment in the true and legal sense of the term; and that it is merely giving the aid of the officers of justice to enforce a judgment obtained elsewhere, or a contract to which the law attributes the effect of a judgment with respect only to the-property specially mortgaged. If the order making a judgment executory had been itself a judgment,-it would have created a vested right in the plaintiff; it would have been his property from the moment it was granted ; and by the Constitution of the United States and the constitution of Louisiana it could not have been annulled by any subsequent action of the Legislature. It was only because this order was merely a mode of proceeding, and was neither a judgment nor a contract, that it was subject to legislative control and repeal. C. P. art. 548; Scott vs. Duke, 3 An. 253; Kilgore vs. Bank, 3 An. 693; Bank vs. Markham, 3 An. 699.

It will be observed that, while the Codes attribute to the contract upon which executory process is granted the effect of a confession of judgment, in so far as the mortgaged property is concerned, the order of seizure and sale is not called a judgment. In the Civil Code, 1808 p. 460, art. 40,1825, art. 3361, it is called “ an order for the immediate seizure ” of the thing mortgaged. In the Code of Practice it is called “an order”: arts. 66, 735, 736, 738, 742. The use of the word judgment seems to have been studiously, avoided in art; 788, where “the debtor'against whom this order of seizure and sale has been rendered,’.’ is authorized to have the sale suspended by injunction; and in article 742, where, oh proof of the grounds alleged in the opposition,, the judge is required to r,evoke-the order of seizure and sale.” -It is usual to speak of a judgment as> having been rendered ; and the invariable use in the Codes of the word. order shows that the compilers designed that this flat of the judge, should be an order merely, and not a judgment in the sense of the law.. Article 510 of the O. P. plainly declares that orders of court, “ such as mandates of arrest and of seizure,” are not termed judgments, though, they have the same effect; that is, they must be obeyed and enforced, unless they are set aside or revoked. A judge has no power to revoke a judgment. Once rendered, it is the property of the party in whose favor it has been given ; and the judge can not alter it, except on new trial, or to change the phraseology, or to correct some error of calculation, or some clerical error; O. P. arts. 547, 548. In an action of nullity ho may decree it to be void, and may enjoin it perpetually; or he may rescind it at the suit of a minor or absent defendant. O. P. arts. 556, 614, 615. The order of seizure and sale, therefore, is not a judgment in the legal acceptation of the word, since the law so declares in art. 540 of the C. P.,, and the judge who granted it is required to revoke it on proper proof.;, art. 742 ; and because the Codes call it an order, and never speak of it as a judgment.

There are important distinctions between the order of seizure and sale, granted on an act importing confession of judgment, and the order making executory the judgment of a different tribunal. • In the one case the order and writ require, the sale of the mortgaged property alone ; in the other a common writ of fieri facias issues, and may be levied on movables and immovables, rights and credits of the debtor. In the one the sale may be suspended by injunction, on opposition without security; while in the other the judgment debtor can not obtain an injunction Without bond and security, as in other injunction suits, O. P. art. 750.

When the word “judgment” is used in. the Code of Practice, it means the decision of the j udge in a contradictory proceeding; and it does not include in that term orders of seizure or of arrest, or other mandates which courts may grant. Judgments require the party con- . demned to do some thing or to pay some thing; the order of seizure and sale does not require the mortgagor to do any thing or to pay any thing, not even costs ; it is granted on the ex-parle application of the mortgagee, without an opportunity having been afforded to the mortgagor to be heard ; and he knows nothing of the proceeding until he is informed, by subsequent notice, that an order has.been granted, under which his property is about to be seized and sold: and he must seek relief, either by opposition, in the nature of an answer to the demarid, or by separate: suit and injunction.’ Judgments are rendered-after the parties' have-been. heard, or have had thé opportunity to be heard ;• the' mortgagor is heard only after the order condemning his property tó be Sold has' been ■granted ; and then he can only proceed by injunction or by appeal!

This proceeding, via executive, was in use under the dominion-of the Spanish -law; and it prevailed in Erando to enforce contracts,' Actes> or Tubes, “emportant execution paree.” Merlin, vo. Execution Paree, tells us that this term was applied to the execution “ qui peut se' faire■en vertu de Pacte tel qu’il est,’ sans avoir besoin cVautre formalité nid’autre litre, le mot paree n’est,- comme l’en voit, que la traduction de Pexpróssion Latine, parata; et le seüs en est qúe tel acte est pret á rece-' voir son execution.”

In the Code of 1808, p; 460, art. 40, and of 1825, art. 3361, the phraseology of the French law is adopted; and the words of the French text are “emporte execution paree,” which, in the English version are,■“amounts to a confession of judgment.” There is no word in the French text which can be translated either judgment or confession; and there are no three words in the English language which can express the meaning of the three French words, “ emporte execution paree.” Thezeason of this is obvious. No English speaking people have any analogous proceeding, nor does the English system attach sufficient import-' anee to any contract whatever, to permit execution to issue upon it under which the property, which is the subject of the contract, may be seized and sold, without a previous contradictory judgment or decree.Of course, no people would have or require words to express a thiDg of ■which they have no knowledge.

The compilers of the Code of Practice adopted the same phraseology in describing acts upon which the order of seizure and sale may be granted. Article sixty-three declares that th'o creditor who has-against his debtor “ un tilre emportant execution paree,” shall be'entitled -to have the hypothecated property seized immediately and sold. The English translation is “ a title importing a confession of judgment.” In ■article sixty-six the phrase is varied in the French; “porte execution par&e,” which is also translated “imports a confession of judgment;” and in article ninety-eight' the -.expression: in the original text is, “un tilre ■emportant execution paree,” -which is translated in the English text, “ an act or title importing-confession of judgment.” - - ■■•

Article 732 usesthe words “ acie emportant Vexecution parÓe,’’- 'which• is translated “ an act importing a confession of judgment.” ' Conscious of the fact that there was no English equivalent for these French words, the compilers have expressed their meaning paraphrastically, in -article 733 :> “An act is said to import a confession of judgment in matters of privilege and mortgage, when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and the debtor has declared or acknowledged the debt for which he gives the privilege or mortgage.”

Every promissory note is a declaration and acknowledgment of a debt; and the fact that the maker adds to this acknowledgment a formal contract by which he grants a mortgage or a privilege to secure the debt no more makes that contract a confession of judgment in any just sense of the words than would a similar acknowledgment in a contract which grants no mortgage or privilege. To give additional facility to the enforcement of mortgages and privileges, the law-maker has seen fit to allow the mortgage creditor to seize and sell the mortgaged property, without the delay of obtaining a contradictory judgment; but it has not chosen to elevate the contract to the dignity of a judgment, or to give it the effect of a judgment, except in so far as execution of the contract, by the sale of the mortgaged property, is concerned. Where there is a confession of judgment, the creditor may obtain, upon exhibiting it, a real judgment, which may be enforced by the seizure and sale, not merely of the property specially mortgaged to secure it, but of any other property of the debtor subject to execution.

The paucity of the English language does not admit of a translation of the original French of our Codes, “ emporte execution paree;” and the compilers have,sufficiently shown what they meant by the mistranslation “ imports a confession of judgment,” by limiting it to contracts clothed with certain prescribed formalities, and restricting its effects to the property specially designated and affected.

There are other considerations not less conclusive. Death puts an end to the capacity to stand in judgment; and that which belonged to a man up to the moment of his death passes, eo instanti, into the ownership and dominion of another. But the death of the mortgagor is no obstacle to the granting of the order, and to the seizure and sale of the mortgaged property. No judgment can be rendered against the executor or administrator of a succession, except for the purpose of liquidating a debt which he does not acknowledge; and that judgment is always guarded with the qualification that it be paid in due course of administration; and it can not be enforced by execution. But, although the mortgagor be dead, and the mortgaged property be inventoried as belonging to the succession, and the succession be in regular course of administration, the mortgagee may go into a court of ordinary jurisdiction, and obtain the order of seizure and sale, and have the mortgaged property sold by the- sheriff, in accordance with the terms and conditions of the notarial contract of mortgage. It necessarily follows, therefore, that the order of seizure and sale is not a judgment; it is an ex- parte order; and it is executed by the sale of the mortgaged property, whether the mortgagor be living or be dead.

Having thus ascertained the nature, extent, and effect of the order of seizure and sale, and the restricted sense in which alone it can be treated as a judgment, it remains to inquire what are the obligations assumed by the surety in the bond given for an appeal from that order.

The condition of the bond is that prescribed by the Code of Practice, art. 579, that the appellant shall prosecute his appeal, and “shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise, that the surety shall be liable in his place.”

The Code of Practice, article 575, requires that the bond for a suspensive appeal shall be for a sum exceeding by one half the amount of the judgment appealed from, when it is for a specific sum. If the judgment be not for a specific sum, bnt for the delivery of some movable of a perishable nature, the bond must be for an amount exceeding by one half the estimated value of such movable. Art. 576. If the judgment decree the delivery of real estate not of a perishable character, the bond must be for a sum exceeding by one half the estimative value of the revenue to be derived from the property pending the suit; and for such additional sum as the judge may determine as security for any injury or deterioration which may be caused to the property by the appellant while it remains in his possession. Art. 577.

If the actual owner of real estate sue one wrongfully in possession, and obtain judgment decreeing him to be the owner, and to be entitled to immediate possession, no judge would think of requiring the defendant to give bond for the value of the property, much less for a sum exceeding that value by one half, in order to appeal suspensively. In all such cases the bond must be fixed in accordance with the requirements of article 577. Is it possible to suggest any good reason for requiring the mortgagor, appealing from an order of seizure and sale, to give bond for a larger amount than would be required of him if he were defendant in a petitory action, appealing from a judgment decreeing the ownership and right of possession of that same property to be in the plaintiff? The mortgage does not give the mortgagee any title of ownership, nor right of possessiota, nor does the order of seizure and sale. The mortgage creates a lien, a right to be paid out of the proceeds of the sale of the mortgaged property; and the order simply requires the property to be sold, and the contract right of the mortgagee to be enforced. Why should the mortgagee, proceeding in the most expeditious manner known to the law, having the right to a summary trial, as well in the district court as in the appellate court, in the event of ■opposition by the mortgagor, be secured by a bond for a larger amount than the real owner could require, who is delayed, and -who-must await the slow movement of regular proceedings in order to obtain possession, ■and enjoyment of liis property, wrongfully'withheld by the appellant? '

It is immaterial what the amount of the bond may be, except in ad far as the enjoyment of-the right of appeal may be improperly ób-' structed by requiring an unreasonable bond, and'that the liability of the surety can not exceed the ambunt fixed. The precise obligation, is to satisfy such judgment as may be rendered by the appellate court against the appellant, on the appeal. As was well said in Wilson vs. Churchman, 6 A. 469: “We know of no instance in which sureties on art appeal bond have been held liable, except on the judgment of the court of the appeal; ” and by the very terms of the appeal bond, as prescribed toy the Code of Practice, art. 579, the satisfaction of the judgment ren-' dered by the appellate court discharges the obligation of the'surety.

Wilson vs. Churchman is an instructive case. Plaintiffs had sold a. lot of flour to Churchman, which was put on board a ship, consigned to' parties in Philadelphia.' After the bill of lading had been sent by mail -to the consignees, plaintiffs sued for the price and sequestered the flour' ■on the ship, under their lién as vendors. Gilchrist, as master and part owner of the ship, bonded the flour, and the ship transported and delivered it as consigned. Gilchrist intervened by way.of third opposition, •alleging his obligation to deliver the flour, in accordance with the bill of lading, and his right to the custody and possession of it for that purpose. The judgment" of the district court, on rule, maintained the ■sequestration; and, on the merits, the opposition of Gilchrist was dismissed. He appealed; and this court reversed the judgment on the rule, and set aside the sequestration, and affirmed the judgment dismissing the opposition. The ease was remanded “for the sole purpose of ascertaining the value of the flour sequestered at the date ■of the bonding by Gilchrist, and of rendering judgment against him for that value, subject to credit for such payments as may have been made toy Churchman.” 4 A. 456.

Judgment was rendered in the district court against Gilchrist for $3500; and, on a return of “no property'found,” the sureties on the appeal bond on the first appeal were condemned to pay the' amount; and they appealed. This court held that they were nbt liable. After the language first quoted above, the court said :

“Tne Code of Practice, article 575, evidently iooks to the responsibility attaching in a definitive judgment on the appeal, and seems'to us to exclude the idea'of the surety binding himself to abide by the action of any court other than that of the court to which the appeal is taken. The same sense, we think, prevails in article 579.” -6 A. 469.

Greiner brought suit against Prendergast to annul a judgment (Obtained against him by Prendergast, and he enjoined the execution of that judgment. The injunction was dissolved with $27 damages, ten per cent interest on the judgment, and costs. Greiner took a suspensive appeal; and gave bond with Durell- as his surety, conditioned as the bond is in this case. The j udgment appealed from was affirmed; and on rule, Durell, the surety, was condemned to pay $500, the amount ■of the appeal bond, “to be discharged on payment-of-$271, with interest and costs, the amount of the original judgment in favor of Prendergast, against Greiner, together with the $27 damages, and the ten per cent interest decreed on the dissolution of the injunction.’’ On the appeal taken from this judgment, this court decided that Durell-had bound himself for the payment of the $27, ten per cent interest, ■ and costs of the action of nullity, “ and nothing more. To hold him to the payment of the original judgment would be to hold him beyond' the terms of his bond, xohicli can not he done.” 3 An. 389.

Lewis, a slave, brought suit for his freedom against Cartwright, who claimed to be his owner ; and he appealed suspensively from the judgment decreeing him to be a slave, and the property of Cartwright. The condition of the bond was identical with that in this case; and the judgment appealed from was.affirmed.. The slave was at large from 1841 until 1846, when he was arrested and delivered to Cartwright, from whom he afterward escaped. Suit was brought by Cartwright on the appeal bond against the sureties, to recover for the loss of the services ■of the slave from 1841 to 1846, This court said the obligation of the sureties was that the judgment which might be rendered on the.appeal should be satisfied, and nothing more. , ■ ' -

“Satisfaction of the judgment involved two things: 1. That the slave should surrender himself to his master as his slave.. 2. That the costs of the suit should be paid. The judgment merely ascertained a question of property; it did not determine what damages the owner had incidentally incurred by the litigation carried on against him by his slave. * * * * * The sureties in such an appeal, upon ■a bond expressed as the present bond, would be considered as satisfying their bond by delivering the slave and paying the costs.” The judgment discharging the sureties was affirmed. 3 A. 685.

In the State vs. Judge of the Third District, 18 La. 444, the mortgagor arrested the sale, on opposition, under articles 739, 740 of the <!ode of Practice, without giving security. The injunction was dissolved, but the court ordered it to be reinstated on the mortgagor giving bond in the sum of $13,500. He demanded a suspensive appeal, which was granted on condition of his giving bond in the sum of $13,500; and he applied for a mandamus to compel the judge to grant him the appeal on his giving bond to cover the costs. The case was one of first impression; and the court held that, although the mortgagor may be entitled to an injunction without giving bond, he can not take a suspensive appeal from the judgment dissolving that injunction without giving security as required by article 575 of the Code of Practice.

This decision is not reconcilable with the reasoning and decree in the subsequent case of the State vs. Judge of the First District, 19 La. 169, 171. Where an injunction is dissolved, without damages, a bond for costs only suffices for a suspensive appeal; Malain vs. Judge of Third Judicial District Court, 29 An. 794; and it logically follows that this rule is applicable as well to injunctions obtained without as to those granted with bond and security. The principle is that the judgment appealed from does not condemn the plaintiff to do any thing or to pay any thing; and he is, therefore, entitled to appeal on giving bond to cover the costs. This court well said in Parham vs. Cobb, 9 An. 426: “ The term suspensive appeal, as used in the Code of Practice, has no meaning, except as applied to a judgment rendered against the defendant in a suit.” Of course this is to be understood to apply to the party condemned; and the defendant in the judgment may be the plaintiff in injunction, or in a reconventional demand, etc. The false application of this term has misled the judicial tribunals of this State on more occasions than one, and notably in 18 La. 444. See the rule as stated in Blanchin vs. Fashion, 10 An. 345, and Untereiner vs. Miller, 29 An. 436, in accordance with Parham vs. Cobb, 9 An. 426.

In State vs. Judge of the Seventh District Court, 22 An. 35, it is said that a judgment in rem may be for a sum as specific as a personal judgment. “ To suspend the execution of a judgment for a specific amount, whether it be an order of seizure and sale, or an ordinary judgment, the appeal bond must conform to article 575 of the Code of Practice; ” and Tournillon vs. Ratliff, 20 An. 179, is relied upon as the authority for this assertion. But in that case the court decided nothing more than that a bond exceeding by one half the mortgage debt actually due sufficed to suspend the execution of the order of seizure and sale, although the whole mortgage debt was for a larger amount; and that the amount not due could not be taken into consideration. “Its payment was suspended by the terms agreed upon, without any bond.” P. 180.

The case in 22 An. 35, therefore, is without support. If it be conceded that a judgment in rem maybe for a sum as specific as a personal judgment, it certainly is not true that an order of seizure and sale, “ Let executory process issue as prayed for, and according to law,” is a judgment for any sum whatever. Who could know in advance what the mortgaged property would sell for?

In Wood vs. Fulton, 2 Harris & Gill (Md.), 75, which was an action on an appeal bond against the surety, on a decree foreclosing a mortgage, the court held that the decree appealed from was in rem, and that the measure of damages was the actual injury suffered by the appellee from the delay.-

In the present ease the obligation of the surety is dependent on two conditions; 1. That, on the appeal, the appellate court should render a judgment against the appellant. 2. That the appellant should fail to satisfy that judgment.

The appellate court could only review the matters passed upon by the district court. The district court merely ordered the mortgaged 'property to be seized-and- sold. The appellate court could onlyihquire whether sufficient authentic evidence had been presented to the district court to authorize that order. It might have found the evidence insufficient, and reversed the order; or it might have found part of the demand of the mortgagee not established by authentic evidence, and have affirmed the order deducting the amount not so established; or it might simply have affirmed the order appealed from. The court might have rendered a judgment against appellant for the costs, and, also, for damages for a frivolous appeal; and this would have been a judgment against the appellant for which the surety would have been bound by the terms of the bond. The court actually rendered no judgment against the appellant in this case, and it could not have rendered any judgment against him fqr the mortgage debt, because-the proceeding in the district court was not against him, but was in rem, against his property. The appeal was not frivolous, but was so well founded that the appellate court reduced the demand of the mortgagee, the appellee, and condemned him to pay the costs of the appeal.

If the appellee was subjected to delay, it was by his own fault, because he demanded more than was legally due to him; and the mortgagor was entitled to seek relief, as he did, by appeal. The delay was not great; the appeal was taken in February, and the decree of the appellate court was rendered in December, 1874; and the mortgaged property was sold in January, 1875. Nearly half the price of the adjudication was consumed by the taxes, which had accumulated from 1870, and-which primed the mortgage debt. The presumption is that the property sold for its full value; and it is not alleged in the rule, nor was it proven, that it would have brought more at any time between the date of the-order, third February, 1874, and the date of the sale, thirtieth January,-1875.

As the obligation of the surety is to pay and satisfy such judgment as may be rendered against the appellant by the appellate court, on the' appeal, he can not be held liable for damages for the delay caused to the mortgagee by the appeal; and it would be manifestly unjust in this case to make him liable for any consequence of the delay, because it was by the fault of the mortgagee in demanding what he had no right to recover, that the appellant'was compelled to seek the relief which he obtained by the appeal.

No case is cited, nor do we know of any, in which proceedings were taken to hold the surety liable on a bond given on appeal from the order of seizure and sale, prior to 1875. In Whan vs. Irwin, 27 An. 706, the mortgaged property had been sold, and a balance of .the mortgage-debt remained unpaid. A rule was taken on the surety in the appeal bond;, and our predecessors decided without dissent that as there was no personal judgment against the appellant, the mortgagor, no execution could issue against him, and the surety could not be held liable. A rehearing was granted; and the court, by a bare majority, three to two, decided that, after exhausting the mortgaged property, the mortgagor might proceed at once against the surety in the appeal bond. In support of this the cages in 20 An. 179, and 22 An. 35, are cited, both of which relate exclusively to the amount of the bond to be given on an appeal by the mortgagor from the order of seizure and sale; and neither of them refers in any manner to the extent of the liability of the surety.

Whan vs. Irwin ignores the jurisprudence of half a century, and the express terms of the Code of Practice, that this ex-parte order of court is not a judgment, in the true and legal sense of the term; and it can not be accepted as a correct statement of the law. In the subsequent case of Gaines vs. White, 28 An. 532, there was a personal judgment for a large sum with recognition of the mortgagee’s rights; and that judgment was appealed from.

Neither the mortgagor nor his surety guaranteed the sufficiency of the mortgaged property to pay the mortgage debt, as the Supreme Court of Maryland well said in 2 Harris & Gill, 75. The specific obligation was to satisfy such judgment as might be rendered against the appellant on the appeal. No judgment was rendered against him. The order of seizure and sale, to the extent that it can be called a judgment, is a judgment purely in rem; and the decree of the Supreme Court simply affirmed that order. If it can be said that the appellant and the surety bound themselves that that order or judgment should be satisfied, it was satisfied by the sale of the mortgaged property. When the mortgaged property had been sold, the order of seizure and sale was satisfied; and the proceeding in that suit was at an end. To say that the surety bound himself that the entire mortgage debt should be paid, is to make a contract for him to which he never consented. The order of seizure and sale did not condemn the mortgagor to pay any sum, much less to pay the mortgage debt. It merely ordered the mortgaged property to be sold, whatever it might yield; and the affirmance of that order did not condemn the mortgagor to pay any thing. The proof of this is that no proceeding could be taken on the suit via executiva to recover of the mortgagor the balance remaining unpaid after the sale of the mortgaged property.

It is elementary that the obligation of the surety can not be extended beyond that of the principal. Gilbert vs. Meriam, 2 An. 162; R. C. C. 3087. The surety in this case was not bound except by the appeal bond ; and there is nothing in that bond which binds the principal to pay the mortgage debt. By what process of reasoning can it be shown that the surety, binding himself specifically that a judgment to be rendered shall be satisfied, is liable for another and a wholly different judgment, rendered in another and a wholly different suit ? On the affirmance by the appellate court of the order of seizure and sale, neither before nor after the mortgaged property has been sold and exhausted can any writ issue against the mortgagor on that order. How can his surety be held under the more onerous condition that, on sale, judgment and execution may be obtained against him to which the principal is not liable?

In Cartwright’s case, 3 An., the satisfaction of the judgment appealed from was the delivery of the property to the owner; that is, the performance of the decree. In this case, the satisfaction of the order bf seizure and sale was the sale of the mortgaged property. In Wilson vs. Churchman, the liability of the defendant was fixed by the judgment appealed from; and the cause was remanded only to ascertain the precise amount of that liability. But when that liability was ascertained the judgment was not that rendered by the appellate court on the appeal; and the sureties were not bound, because they were liable only for such judgment as might be rendered by the appellate court on the appeal, not for a judgment to be rendered in subsequent proceedings in another court. In this ease it can not be pretended that the surety on the appeal bond was liable for the entire mortgage debt. It was necessary first to sell the mortgaged property; and a new suit was then brought to enforce the personal liability for the balance.

The proceeding via executiva related solely to the liability of the mortgaged property, and in no way affected the personal liability of the mortgagor. The surety undertook to satisfy such judgment as might be rendered against the mortgagor in that suit, which could have been only for costs and damages; and he did not in any manner undertake to be liable for another judgment, in another suit against the mortgagor.

It is manifest that the idea of the liability of the surety in such a case, for the balance not satisfied by the sale of the mortgaged property, grew out of the demonstrated error in 18 La. in fixing the amount of an appeal bond on the dissolution of an injunction ; and this was followed by the demonstrated error in 22 An. in calling an order of seizure and salea judgment íor a specific sum, and requiring an appeal bond in such, case to be in accordance with art. 575 of the Code of Practice. It seems to me contrary to right and justice that a surety in such a bond should be held as guarantor of the sufficiency of the mortgaged property; and that the mortgagee, after he has obtained the full benefit of the security which he accepted in the contract of mortgage, should be allowed to recover of the surety in the appeal bond, as if he had been guarantor of the sufficiency of the property, and surety, originally, for the debt secured by the mortgage.

There is proof on the record tending to show that plaintiff paid part of the city taxes at fifty cents on the dollar, which are deducted in full from the price of the adjudication. If the surety could be held liable, he ought to have the benefit of this discount; and the case should be remanded to ascertain the amount.

The proceeding by attachment differs from that by executory process in many particulars; and the Oode of Practice, art. 732, declares that they are subject to different rules, and must not be confounded. In a suit by attachment the proceeding is, in form, in personam. An action is brought to recover a debt, a specific, fixed amount; and the property of the debtor is attached for the purpose of bringing him into court; and to secure the payment of the judgment that may be rendered. If the debtor is absent an I is not cited, a curator acl hoc or advocate is appointed to represent him, and is cited in his stead. A judgment is rendered against the defendant, with lien and privilege on the propertyattacheL That judgment is for a specific sum ; and if the curator or the defendant should appeal suspensively, the bond would be fixed in accordance with art. 575 of the C. P.; and the surety would know and understand that he was bound for the debt if it was not made out of the debtor or his property, in the event of the affirmance of the judgment by the appellate court. The form of the proceeding is in personam; but where the defendant is not cited, and does not make personal appearance, the proceeding is in rem, in the sense that it concludes the defendant only with respect to the property attached; and no other property of the debtor could be seized and sold under that j udgment.

It will he time enough when the case arises to inquire what would be the liability of the surety in an appeal bond in an attachment suit where the defendant has not been cited and has not appeared per'sonaily and the value of the property attached is less than the amount of the judgment. Reference has been made to this proceeding nowand this digression made only because it has been suggested that the proceeding by attachment and by seizure and sale are subject to the same rules. The Code of Practice declares that they are not; and, it may be added, there is not much probability that a curator ad hoc would be able to give the bond lor a suspensive appeal in an attachment suit without the consent and assistance of the defendant, and such action on his part as would bind him personally by such judgment as might be rendered on the appeal by the appellate court, by which his surety would also be bound.

It may be that the proceeding by seizure and sale interrupts prescription; but the argument and decision to the contrary in Harrod vs. Voorhies has never been met or answered. It may be that where the mortgagor, having obtained an injunction on opposition, can appeal from the judgment dissolving that injunction only by giving bond for an amount exceeding by one half the mortgage debt, as decided in 18 La. 444; though this would be in violation of the general rule that plaintiff in injunction, and the party who is not condemned to do any thing, or to pay any thing, may appeal on giving bond for the costs only; and it may be, as asserted in 22 An. 35, that to appeal suspensively from an order of seizure and sale, the mortgagor must give bond for one half over the amount of the mortgage debt, contrary to all the analogies of the law in kindred cases. It would not thence follow that the surety in such a bond was liable for the mortgage debt, or for the amount of a judgment rendered in another suit, for the remainder not paid by the sale of the mortgaged property. His obligation is specific to pay and satisfy such judgment as may be rendered “ against the appellant,” on the appeal; and it can not be extended beyond the express terms of the bond. A judgment for the remainder, a j udgment in another suit, is not the j udgment appealed from, nor is it the judgment rendered, against the appellant by the appellate court on the appeal. Until such a judgment has been rendered and has not been satisfied the surety is not in default: his conditional obligation has not become absolute, and he is not liable.

Whan vs. Irvin is the only ease of which I have any knowledge in which the surety in an appeal bond has been held for a judgment rendered by another court than that of the appeal; and in another and wholly different proceeding. In my judgment that decision and the one now rendered in this case impose upon the surety an obligation to which he has never assented. The contract of suretyship is strictisshna juris: Whenever resort is had to the surety, he may well ask: “ Is it so nominated in the bond?” And if it is not, he may truly say: “Non in Ucee faldera veni.” Instead of construing the obligation of the surety strictly, Whan vs. Irvin construed it liberally against the surety, and in favor of the obligee. In Whan vs. Irvin, a contract was made for the surety and enforced against him, instead of the contract which he actually assented to and made.

Wilson vs. Churchman, 6 An., was a well considered case, by a court which we all remember with pride as one of the ablest that has ever graced the Bench. That decision commends itself to my judgment and approval, and I am not prepared to overrule it.

Dissenting, as it is my misfortune to do in this case, from all my brethren, due respect for them and myself has compelled me to state at large, as I have done, the reason by which I am controlled.