Cox v. Rees

Supreme Court of Louisiana

Cox v. Rees

16 La. 109

CourtSupreme Court of Louisiana

DecidedSeptember 15, 1840

StatusPublished

Cited by3 cases

This text of 16 La. 109 (Cox v. Rees) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. Rees, 16 La. 109 (La. 1840).

Pincite

Opinion

Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment discharging a rule, taken on the clerk of the District Court, to show cause why he should not issue an alias execution against the defendants in this case.

The plaint iff had obtained a final judgment, against the defendants, David Rees and J. H. Thomas, his surety, which ordered that a tract of land belonging to Rees, and was mortgaged, should be first seized and sold to satisfy the debt for which judgment was rendered. An execution issued, and the sheriff returned, “ that Rees was dead and his estate insolvent, and administered in the Probate Court by his widow, under the benefit of an inventoiy, against whom no proceedings could be had under the writ of fi.fa“and that the land ordered to be seized was in the hands of a third possessor, who purchased it at sheriff’s sale under a former seizure.” On this return [111]*111being made by the sheriff, the plaintiff’s attorney applied for an alias fieri facias in the usual form, without reference to the ^discussion of the land ordered to be first seized; but the clerk refused, on the ground that the judgment required as a condition precedent the discussion of said land; whereupon a rule was taken on him, to show cause why the execution should not issue in the manner and form required. The clerk showed cause, and upon the issue thus made the rule was discharged: and the plaintiff has appealed as against ° 9 r 11 ° the clerk.

A11 persons appealing, and seeking to reverse a judgbringbefore™his tywhoTasanin" terest in-having 14sustained,

We have often said, that whoever applies to us for the reversal of a judgment, must bring before this court all those who have an interest that it be sustained. We cannot pass on the rights of those to whom no opportunity has been afforded to be heard. In the present case, the only ap,pellee is the clerk of the District Court, who has nothing at stake and is without authority to represent those who have an interest to support the judgment. There not being proper parties before this court, the appeal cannot be sustained.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.

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Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment discharging a rule, taken on the clerk of the District Court, to show cause why he should not issue an alias execution against the defendants in this case.

The plaint iff had obtained a final judgment, against the defendants, David Rees and J. H. Thomas, his surety, which ordered that a tract of land belonging to Rees, and was mortgaged, should be first seized and sold to satisfy the debt for which judgment was rendered. An execution issued, and the sheriff returned, “ that Rees was dead and his estate insolvent, and administered in the Probate Court by his widow, under the benefit of an inventoiy, against whom no proceedings could be had under the writ of fi.fa“and that the land ordered to be seized was in the hands of a third possessor, who purchased it at sheriff’s sale under a former seizure.” On this return [111]*111being made by the sheriff, the plaintiff’s attorney applied for an alias fieri facias in the usual form, without reference to the ^discussion of the land ordered to be first seized; but the clerk refused, on the ground that the judgment required as a condition precedent the discussion of said land; whereupon a rule was taken on him, to show cause why the execution should not issue in the manner and form required. The clerk showed cause, and upon the issue thus made the rule was discharged: and the plaintiff has appealed as against ° 9 r 11 ° the clerk.

A11 persons appealing, and seeking to reverse a judgbringbefore™his tywhoTasanin" terest in-having 14sustained,

We have often said, that whoever applies to us for the reversal of a judgment, must bring before this court all those who have an interest that it be sustained. We cannot pass on the rights of those to whom no opportunity has been afforded to be heard. In the present case, the only ap,pellee is the clerk of the District Court, who has nothing at stake and is without authority to represent those who have an interest to support the judgment. There not being proper parties before this court, the appeal cannot be sustained.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.

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Bluebook (online)

16 La. 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-rees-la-1840.

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