Adams v. Henning

9 La. Ann. 225

• Court: Supreme Court of Louisiana
• Decided: April 15, 1854
• Status: Published

Opinion

Ogden, J.

The plaintiff, as transferree of a judgment obtained in the Third Judicial District Court of the parish of Jefferson, by W. B. Eayden against one James Fisk, has enjoined the defendant from proceeding any further with an execution issued under a judgment which the defendant obtained against Hayden before the same court, and by virtue of which the Sheriff of the parish of Jefferson, was proceeding to sell the same judgment as the property of Hayden, to satisfy the defendant’s execution.

The defendant, Hennen, obtained his judgment against Hayden, in 1850, and the transfer by Hayden to the plaintiff, of the judgment against Fisk;, was made on the 15th of April, 1853, and no notice of the transfer has ever been given to the judgment debtor.

The grounds for the injunction, as set forth in the petition, are: 1st. A denial of the right of the Sheriff to seize and sell the judgment under defendant’s execution. 2d. A denial of the right of the Sheriff of the parish of Jefferson to seize and sell any kind of property in the parish of Orleans; and a special allegation that the judgment seized, was situated in the parish of Orleans.

The first question is, whether the plaintiff was so possessed of the incorporeal right assigned to him by Hayden, as to permit its seizure by the defendant under his execution. The delivery which is essential to vest a complete title as regards third persons in the transferree of a debt not evidenced by a negotiable instrument, is effected by giving notice to the debtor of the transfer having taken place. C. C. Art. 2613. The knowledge which it is shown the judgment debtor’s attorney of record had of the transfer, does not answer the requisite of the law in this respect, and there is no doubt the judgment transferred to the plaintiff, remained liable to seizure by the creditors of Hayden.

But it is contended on the part of the plaintiff, that the transfer as between Hayden and the plaintiff was complete, and that the plaintiff has therefore the same right that Hayden would have to object to irregularities in the proceedings, by which the Sheriff was attempting to effect a sale of the judgment. It was held in the case of Yeatman v. Estill, 3d Ann. 222, that a party who had intervened in an attachment suit, claiming the debt attached under the previous assignment, and had failed to establish an assignment complete as to third persons, according to Art. 2613, could not object to the mode in which the writ of attachment had been executed. The same principle must govern in the present case. The plaintiff having no such title to the judgment seized, as can be opposed to third persons, he cannot be permitted to interfere with others in the exercise of their rights as creditors of the transferor. The result of the sale by the Sheriff, if irregular, may be that the purchaser will acquire no right to the judgment, and the plaintiff may perfect his title by giving notice of his transfer to the judgment debtor, and acquire thereby a better right to be paid by him, hut as the facts now exist, he is without any right to obstruct the defendant in the prosecution of his judgment. It is therefore unnecessary to express any opinion as to the right of the Sheriff of the parish of Jefferson to execute process of the Third Judicial District Court, within the limits of the parish of Orleans, after the city of Lafayette, where that court was located, had become incorporated within the limits of the parish of Orleans, by the adoption of the present Constitution.

¥e think the injunction ought to have been dissolved.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed and annulled; that the injunction be dissolved, and the suit dismissed ; and that plaintiff pay the costs in both courts.