Crichton Co. v. Merritt

63 So. 604, 134 La. 4, 1913 La. LEXIS 2163

• Court: Supreme Court of Louisiana
• Decided: December 1, 1913
• Docket: No. 19,664
• Status: Published

Opinion

BREAUX, C. J.

On appeal, defendant urged that he has a defense against the claim of plaintiff upon which it obtained a judgment. He also claims that plaintiff cannot seize and sell a tract of land of 40 acres because of his, defendant’s, right to a homestead.

Plaintiff held a mortgage, and sued by the ordinary process in foreclosure.

The defendant answered, and alleged that time had been given for the payment of the debt; that it was' prescribed. Furthermore, he pleaded that the property herein seized is “homestead.”

The judge of the district court rendered judgment against the defendant, and rejected his claim to a homestead.

The defendant appealed.

On appeal, the plaintiff and appellee moved to dismiss the appeal on the ground that the transcript does not contain a full copy of the proceedings; that the record does not show that this court has jurisdiction; that there are not allegations or testimony sufficient to support a homestead exemption that the defendant abandoned the appeal, and has acquiesced in the judgment.

[1] As to jurisdiction: This court has no jurisdiction over the moneyed demand for a main judgment, as it is for an amount less than $2,000. The court will next pass on the question “of homestead” claimed. It has jurisdiction over the claim to a homestead exemption.

[2] It is not shown that defendant had any one dependent upon him for support, nor that his wife did not have in her own right more than $2,000, or that she was not in possession of lands worth over $2,000. There is no evidence that the husband has no means other than that of the property which he claims is exempt from seizure.

There were two appeals taken in the "case. The first, suspensive and devolutive, was taken about the time that judgment was rendered; another was taken about the time that the 12 months expired after the judgment had been rendered.

Plaintiff urged that the appeal had been abandoned.

We do not pass specially upon the last point, as there is no necessity. We will state that it is very evident that the transcript was never properly made up. It is not the transcript required by the rules of this court. Besides, it -is very evident that the plaintiff has not brought his claim for a homestead within the requirement of the law which grants a homestead exemption.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is affirmed.