Cousin v. St. Tammany Bank & Trust Co.

Supreme Court of Louisiana

Cousin v. St. Tammany Bank & Trust Co.

83 So. 685, 146 La. 393, 1919 La. LEXIS 1520

Supreme Court of Louisiana·Decided March 3, 1919·No. No. 23000·Published·Cited by 8 cases

Opinions

O’NIELL, J.

Plaintiff appeals from a judgment dissolving a writ of injunction and rejecting her demand to prevent the sale of property seized in executory proceedings on a mortgage note for $1,740. The executory proceedings were brought against her husband. She claims that the property seized is her separate property, not the property of her husband nor of the marital community. But the property itself is not in contest, except in so far as the defendant bank is attempting to subject it to the payment of the mortgage note. The only matter in dispute, therefore, is the validity of the mortgage held by the defendant bank, the amount of which does not exceed $2,000. This court has jurisdiction in such cases only when the amount in [395]*395dispute exceeds $2,000, exclusive of interest. Const, art. 85.

The doctrine of the decisions cited in Lhote & Co. v. Church Extension Society, 115 La. 487, 39 South. 502, to the effect that when a third person, claiming the property seized, attempts to prevent execution of the judgment, the issue is as to the ownership of the property seized, and its value is the test of jurisdiction, has no application to this case; because the only contest here is between the St. Tammany Bank on the one side and Mr. and Mrs. Cousin on the other side. He agrees in her contention that the property belongs to her alone, and he testified accordingly. She did not obtain or ask for the authorization of the judge to prosecute the suit, nor did she allege that there was or would be a contest or conflict of interest between her and her husband. The only matter in dispute between the bank on the one side and Mr. and Mrs. Cousin on the other side of this contest is the validity of the mortgage for $1,740. Whether the property seized belongs to Mr. Cousin or to Mrs. Cousin is a question which they do not dispute, and with which the bank is concerned only to the extent of $1,740' — not to' the extent of the value of the property.

It is ordered that the case be transferred to the Court of Appeal, First circuit. Appellant is to pay the costs of this appeal; all other costs are to depend upon the final judgment.

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O’NIELL, J.

Plaintiff appeals from a judgment dissolving a writ of injunction and rejecting her demand to prevent the sale of property seized in executory proceedings on a mortgage note for $1,740. The executory proceedings were brought against her husband. She claims that the property seized is her separate property, not the property of her husband nor of the marital community. But the property itself is not in contest, except in so far as the defendant bank is attempting to subject it to the payment of the mortgage note. The only matter in dispute, therefore, is the validity of the mortgage held by the defendant bank, the amount of which does not exceed $2,000. This court has jurisdiction in such cases only when the amount in [395]*395dispute exceeds $2,000, exclusive of interest. Const, art. 85.

The doctrine of the decisions cited in Lhote & Co. v. Church Extension Society, 115 La. 487, 39 South. 502, to the effect that when a third person, claiming the property seized, attempts to prevent execution of the judgment, the issue is as to the ownership of the property seized, and its value is the test of jurisdiction, has no application to this case; because the only contest here is between the St. Tammany Bank on the one side and Mr. and Mrs. Cousin on the other side. He agrees in her contention that the property belongs to her alone, and he testified accordingly. She did not obtain or ask for the authorization of the judge to prosecute the suit, nor did she allege that there was or would be a contest or conflict of interest between her and her husband. The only matter in dispute between the bank on the one side and Mr. and Mrs. Cousin on the other side of this contest is the validity of the mortgage for $1,740. Whether the property seized belongs to Mr. Cousin or to Mrs. Cousin is a question which they do not dispute, and with which the bank is concerned only to the extent of $1,740' — not to' the extent of the value of the property.

It is ordered that the case be transferred to the Court of Appeal, First circuit. Appellant is to pay the costs of this appeal; all other costs are to depend upon the final judgment.

Cousin v. St. Tammany Bank & Trust Co., 83 So. 685, 146 La. 393, 1919 La. LEXIS 1520 (La. 1919).

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