Fluker v. Turner

5 Mart. (N.S.) 707

• Court: Supreme Court of Louisiana
• Decided: May 15, 1827
• Status: Published

Opinion

Porter, J.

delivered the opinion of the court. Judgment was rendered in this case against the defendant. Subsequent to the rendition of the judgment, a creditor of the plaintiff had the judgment seized under an execution, and the plaintiff’s interest in it was sold. At this sale the defendant became the purchaser, and consequently obtained all the plaintiff's right to it. At a subsequent period, one M'Micken, who is the appellant here, moved the court that execution should issue against the defendant; and it issued accordingly. The defendant applied to have it set aside; and the appellant endeavoured to support the course he had pursued, on the ground that he had an equitable interest in the judgment; that Turner knew this fact when he made the purchase; that he could not, under such circumstances, acquire a right which would defeat the appellant's interest. To this the defendant replied, and, in our opinion according to law, that, as the appellant was not a party on record, he had no control over the execution—and that his remedy was by an action against Turner.

It is therefore ordered, adjudged and decreed, that the judgment of the district court, rejecting the demand of the appellant, and quashing the execution which he had taken out against the defendant, be affirmed, with costs.