Dunlap v. Hundly

2 La. Ann. 212

• Court: Supreme Court of Louisiana
• Decided: February 15, 1847
• Status: Published

Opinion

The judgment of court was pronounced by

Slidell, J.

Hundly had obtained an order of seizure and sale on a judgment recovered against Dunlap in Mississippi. Dunlap thereupon filed his petition for an injunction, in which he avers, under oath, that a plea which he had filed to the merits in the suit in Mississippi had been fraudulently withdrawn, and a confession entered without his authorization. He then sets forth various grounds of defence which he had against the action, and avers the note upon which the suit in Mississippi was brought to have been void under the constitu. tion of Mississippi, in which State it was made. An injunction was obtained, commanding the sheriff not to proceed with the sale of the property, until the further order of the court. After trial the order of seizure and sale was an-' nulled, and the injunction was perpetuated. Hundly appealed.

The record of the suit in Mississippi shows that Dunlap first filed, by his attorney, a plea of the general issue. The record then- sets forth that his attorney-appeared at a subsequent term, withdrew the plea and confessed the'j ust-iee of the’ plaintiffs claim, upon which judgment was entered against Dunlap for $394 and-costs. Upon this judgment there was-an execution, and return of nulla Iona.

About two years subsequent to the rendition of the first judgment, and after' the return of the execution, an application was made by motion to correct the' judgment theretofore rendered for $394, upon a suggestion that the same1 should have been for $753 40. It is stated that the defendant having had notice’ of this motion, the judgment was thereupon amended, and it was decreed “that the plaintiff recover of said defendant the sum of seven hundred and fifty three dollars, forty cents, with interest from the — day of October, 1840, the date of rendition of said judgment originally recovered in said court, and also costs of suit.-’

There is something very extraordinary and suspicious on the face of this record ; and although the plaintiff in injunction has denied under oath the authority of the attorney to confess judgment for him-, and swears that he never abandoned his defence, no evidence to the contrary, except the record itself, has been adduced.

We have not been assisted with any testimony to show what faith and credit would be given in Mississippi to a record, which varies so materially not only from the forms and mode of proceeding adopted in our own courts, but from what we have supposed to be the practice at common law. It is our duty to construe strictly the provisions of our Code authorizing the summary execution of foreign judgments; and litigants who choose that remedy must bring themselves fully and unequivocally within its requisitions. See Miller v. Gaskins, 3 Rob. 94. 8 Martin, 236. Judgment affirmed.