Clamageran v. Bucks

4 Mart. (N.S.) 487

• Court: Supreme Court of Louisiana
• Decided: May 15, 1826
• Status: Published

Opinion

Porter, J.,

delivered the opinion of the court. This action was commenced by attachment. An attorney was appointed for the absent debtor; an answer was filed by him, and the cause put at issue.

At this stage of the proceedings Mellon intervened. In his petition he states, that the defendants in this suit were indebted to him, and that he had attached the same property which was levied on in this case. That by reason of these premises he had a right to intervene, and show that the affidavit on which the attachment had issued was not made ae-cording to law; that consequently all the proceedings were null and void,

The court below refused to set'aside the at tachment,, and gaye judgment for the plaintiff. The intervening party appealed.

We are of opinion the court below did not err. The affidavit contains every substantial averment which the act of the legislature , . . , . , /⅜ requires; and it is sufficiently positive, tor per-j^y, could be assigned on it, if the affiant SVyore falsely. We are also of opinion, that. an intervening creditor cannot plead peremptory exceptions, the only object of which, is to have the cause dismissed for irregularities in the proceedings. These were matters for the consideration of the defendants, or those who represented them, and if they thought fit to wave a defence which should not be used in a just action, no other party can. it is exercising rights which do not belong to hum and which no law that we are acquainted with confers.

Cuvillier for the plaintiff. Watts & Lohdell for the intervening creditors.

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