Dalton v. Viosca

22 La. Ann. 251

• Court: Supreme Court of Louisiana
• Decided: April 15, 1870
• Docket: No. 1722
• Status: Published

Opinion

Ludeling, C. J.

On the twenty-third of January, 1863, judgment was rendered against E. Yiosca and G. Weber for $800, with interest and costs. On the sixteenth of December, 1867, Mrs. E. Yiosca took a rule on William Hartingau, tutor of the minor heir of Michael Dalton, and on Alfred Kearney, attaching creditor of Michael Dalton, to showcauso why, on Mrs. Yiosca depositing one half of said judgment in the hands of the sheriff, satisfaction of judgment shall not he entered in her favor. The proceeding is novel, and, we think, unauthorized by law. It is an attempt to have one judge interpret or construe a final judgment rendered by bis predecessor. But as no objection has been urged to the manner of proceeding, wo will pass upon the questions raised.

It is contended that as the creditor alone appealed, the judgment of the district court is final between the plaintiff in the rule and Dalton’s heir, who owns the judgment, and therefore the creditor (if a creditor) can.not maintain this appeal, aud recover more from Mrs. Viosca than she-owes to the succession.

• The plaintiff in the rule having alleged that Kearney was an attaching creditor (as having attached the judgment iu question) is estopped-from denying that he is a creditor. Besides, he is made a. party to the rule. We think Kearney has a right to maintain his-appeal.

An examination of the judgment against Mrs. Viosca and Weber, and the pleadings in the suit, leaves no room to doubt that the-judgment is against each debtor for the whole amount. 3 La. 282; 14 An. 831.

It is therefore ordered and adjudged that the judgment of the district court, in so far as it affects the appellant be avoided and reversed, and that the rule be dismissed, with costs iu both courts.