Allen v. Henley

58 So. 688, 130 La. 861, 1912 La. LEXIS 950

• Court: Supreme Court of Louisiana
• Decided: February 26, 1912
• Docket: No. 18,869
• Status: Published

Opinions

LAND, J.

[1] Plaintiff caused to be seized, under execution against the defendant, two cows and calves, and the defendant enjoined the sale, on the ground that said property was exempt from seizure and sale under the Constitution and laws of this state. Plaintiff and the constable appeared solely for the purpose of filing certain exceptions, in which they claimed the right to seize and sell the animals, because the defendant was trying to dispose of his property. The exceptions were promptly overruled, and, after hearing the evidence and argument, the injunction was dismissed, with costs. The judgment was rendered and signed on May 10, 1910. On May 6, 1911, the defendant filed a petition for an appeal to the Supreme Court, and prayed that the return day be fixed by the court, as well as the amount of bond for a devolutive appeal. On the same day, the justice signed an order, granting an appeal as prayed for, “returnable to the Supreme Court of the state of Louisiana, on the 15th day of May, A. D. 1911, according to law,” fixing the amount of bond, and directing service of citation of appeal upon the appellees, according to law. On the same day, the appeal bond was filed, and citation of appeal issued and service made on the appellees. The transcript was filed in the Supreme Court on May 11, 1911. On May 16, 1911, the appellees appeared and filed an exception to the legality of the citation of appeal, on the ground that it allowed only seven days’ delay for answering, and to the legality of the order of appeal in the matter of fixing the return day, and moved for the dismissal of the appeal, on the ground that these irregularities were imputable to the appellant, whose counsel prepared the papers in typewritten form, and sent them to the justice’s court.

In Orleans & J. Ry. Co. v. International Const. Co., 113 La. 409, 37 South. 10, this court held that the appellant is not responsible for an error in the return day, though his counsel wrote the order, especially where the prayer was that the appeal be made returnable according to law. We said:

“The order was not less the act of the judge because counsel wrote it out.”

The error in the return day the error in the citation.

The further objection that the transcript does not contain the evidence is repelled by the statement of facts found in the record.

The motion to dismiss is therefore overruled.

[2] As already stated, the defendants in injunction appeared solely for the purpose of filing exceptions, in which defendants in injunction denied that the seizure was illegal, and that defendants in injunction owed Henley anything (meaning, we presume, damages), and claimed that the seizure was lawful, as Henley was trying to dispose of his property. These exceptions were overruled by the court, no answer was filed by defendants in injunction, and the justice, after hearing the evidence and the argument, rendered judgment, dismissing the injunction.

According to the statement of facts, plaintiff in injunction testified that the. cattle seized were the only cattle he had, and admitted that he had talked about selling or trading them. Two witnesses testified that plaintiff in injunction had offered to sell the cattle to him before the suit on the due-bill; but they could not agree on the price.

There was no joinder of issue on the mer its; and a cause cannot he tried without a contestatio litis. It does not appear that any evidence was offered on the trial of the exception. Article 1074 of the Code of Practice requires justices of the peace to preserve a record in which they shall state, among other proceedings, “the answer of the defendant, if he appears, and his nonappearance, if.he makes default.”

As the defendant was present, the justice, after overruling the exception, should have required him to answer the petition for injunction.

The justice certified that the • transcript contains a full, true and correct copy of the proceedings had before him. Hence it cannot be assumed that there might have been an oral answer.

In his petition for injunction, the debtor claimed the constitutional exemption by proper allegations, and claimed damages for the wrongful seizure of his property. It is true that the petition was -not sworn to; but the petitioner a.t the same time made affidavit before the justice that the property seized was exempt from execution. The claim of exemption appears to have been denied because the debtor had offered the property for sale.

It is therefore ordered that the judgment below be reversed; and it is now ordered that this cause be remanded for further proceedings according to law, and that the appellees pay costs of appeal.