Daley v. Cunningham

Supreme Court of Louisiana

Daley v. Cunningham

3 La. Ann. 55

DecidedJanuary 15, 1848

StatusPublished

This text of 3 La. Ann. 55 (Daley v. Cunningham) 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

Daley v. Cunningham, 3 La. Ann. 55 (La. 1848).

Pincite

Opinion

The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment rendered against him in proceedings by attachment, and assigns, as an error apparent on the face of the record, that no property was attached, and no legal service of the attachment was made. It is admitted, that there was no personal service. The return of the sheriff is in these words : “ Seized, generally, in the hands of F. Gilmore, clerk of the Fourth District Court of New Orleans, and particularly the claim of defendant to the suit and judgment of Wm. Cunningham v. J. Erwin, No. 791 of the docket of the Fourth District Court; and also same day seized, generally, in the hands of W. M. Beale, attorney in fact of J. Erwin, and particularly the said claim of Cunningham against the said Erwin.”' Notices of this seizure were afterwards served on Gilmore and Beale.

It is manifest, that the judgment could not be attached in the hands of the clerk, who is merely the keeper of the records, and has no legal possession of, or control over, it. The attachment in the hands of Erwin's attorney in fact, might, in certain cases, be valid ; but in order to made it so, it was necessary to have shown the existence of the judgment attached, the absence of Erwin, and the mandate of Beale. Of these facts the record contains no evidence. We are, therefore, of opinion, that the error assigned has been shown to exist; and that the defendant wa3 not legally before the court.

It is ordered, that the judgment be reversed, and that there be judgment of non-suit against the plaintiff, and in favor defendant, with costs in both courts-

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The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment rendered against him in proceedings by attachment, and assigns, as an error apparent on the face of the record, that no property was attached, and no legal service of the attachment was made. It is admitted, that there was no personal service. The return of the sheriff is in these words : “ Seized, generally, in the hands of F. Gilmore, clerk of the Fourth District Court of New Orleans, and particularly the claim of defendant to the suit and judgment of Wm. Cunningham v. J. Erwin, No. 791 of the docket of the Fourth District Court; and also same day seized, generally, in the hands of W. M. Beale, attorney in fact of J. Erwin, and particularly the said claim of Cunningham against the said Erwin.”' Notices of this seizure were afterwards served on Gilmore and Beale.

It is manifest, that the judgment could not be attached in the hands of the clerk, who is merely the keeper of the records, and has no legal possession of, or control over, it. The attachment in the hands of Erwin's attorney in fact, might, in certain cases, be valid ; but in order to made it so, it was necessary to have shown the existence of the judgment attached, the absence of Erwin, and the mandate of Beale. Of these facts the record contains no evidence. We are, therefore, of opinion, that the error assigned has been shown to exist; and that the defendant wa3 not legally before the court.

It is ordered, that the judgment be reversed, and that there be judgment of non-suit against the plaintiff, and in favor defendant, with costs in both courts-

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Bluebook (online)

3 La. Ann. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daley-v-cunningham-la-1848.