Fortier v. Zimpel

5 Rob. 189

• Court: Supreme Court of Louisiana
• Decided: June 15, 1843
• Status: Published

Opinion

Bullard, J.

This is an appeal from a judgment of the District Court, dismissing the opposition of John Slidell, to the homologation of a Sheriff’s sale, upon a monition, the opponent being a mortgage creditor of Zimpel, the former owner. The grounds of opposition were, that the order, of seizure was issued improvidently, without due evidence, or a proper party defendant; that the forms of Jaw, as to appraisement, seizure, notices, advertisement and sale, were not fulfilled ; and that the monition was not duly obtained, and had not been regularly advertised.

The record shows, that no proof was made of the publication of the monition, before the dismissal of the opposition of Slidell, and that long afterwards, upon the publication being shown, the sale was homologated.

* The court, in our opinion, erred in dismissing the opposition, without being first satisfied, that the monition had been published. Slidell showing himself to be an hypothecary creditor of Zimpel, had a sufficient interest to make opposition ; and one of the grounds of opposition was, that there had been no publication. The judgment of homologation after-wards rendered, cannot prejudice him, although it may be conclusive as to all other persons.

Labarre and Derbigny, for the plaintiff. T. Slidell, for the appellant.

It is, therefore, ordered and decreed, that the judgment of the District Court, dismissing the opposition of John Slidell, be reversed, and that the case be remanded for further proceedings according to law ; the plaintiff paying the costs of this appeal.

The judgment dismissing the opposition was signed 1 March, 1841. On the 4th of August following, a witness proved, that the advertisements had been made in the months of May, and June preceding.