Graham v. Succession of Markey

22 La. Ann. 266

• Court: Supreme Court of Louisiana
• Decided: April 15, 1870
• Docket: No. 2065
• Status: Published

Opinion

Howe, J.

The plaintiff proceeded via exeentiva in this case to collect ■a note secured by mortgage and vendor’s privilege, and notice of the proceeding was served on the administratrix. The latter enjoined, on the ground that the court, as a probate court, was without jurisdiction. This injunction was afterwards dissolved, and the administratrix has appealed.

The objection urged by the appellant that the Second District Court of New Orleans, as a court of probates, is without authority to issue an. order of seizure and sale is technically correct. It can no more do this than it can issue a writ of fieri facias. The object of the order of seizure and sale is to put money in the hands of the sheriff, to be by him paid over to tlie seizing creditor. The proper object, on tho other hand, of the process issued by a probate court is to put money in the hands of the administrator, to bo by him applied, under the orders of tho court, in due course of administration. Bank v. Marigny, 11 Rob. 211 ; State v. Third District Court, 20 An. 311.

For these reasons, it is ordered that tho judgment appealed from be avoided and reversed, and the injunction perpetuated, with costs in both courts.