Howard v. Walsh

28 La. Ann. 847

• Court: Supreme Court of Louisiana
• Decided: July 15, 1876
• Docket: No. 593
• Status: Published

Opinions

Mobgan, J.

Martha Howard, executrix of James Howard, excepts to the citation or notice of revival served on her, because J. W. Howard died in February, 1875, several months before the appeal bond was filed, and the suit was not revived in the district court against his legal representatives.

After the judgment was rendered, and the appeal had been granted, Howard died. It was not necessary that appellants should revive the ■suit against the representatives of his succession in order to perfect their -appeal. All they were required to do was to file the bond required by the district judge, and then see that proper parties were made in this court. This has been done.

This is an injunction suit to restrain the sale of certain property seized by the sheriff on a fieri facias issued under a decree of this court, rendered at our session here in July, 1*871. The grounds are:

First — That, when the notice of seizure was served, the sheriff failed to notify the defendant in execution to divide the lands seized into lots of not less than ten, nor more than fifty acres.

It is not necessary that this notice be given at the time of seizure. It must be done before the sale, and a defendant in execution can not presume that the sheriff will not follow out the law in the execution of the judgment which he is intrusted with.

Second — That part of the land seized belongs to third parties to whom he is bound in warrantee as the vendor thereof.

This is a matter which ooncerns the owners of the property,- and not the defendant in execution.

Third — That the decree of the Supreme Court, upon which the fieri facias issued, is a nullity, because there was no concurrence of a quorum of the court as required by the constitution.

A majority of the court was present when the judgment was pronounced. But it is sought to be made to appear that one of the judges who concurred in the decree was absent when the judgment was read, and that two others dissented.

Admit the fact to be as stated. The judgment pronounced was the judgment of a majority of the court. It was the judgment of the court which was pronounced, and whether one of the concurring justices was absent or not matters nothing. The court entered the decree as a court, a quorum being present, and this is sufficient and all that the law requires.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the injunction herein issued be dissolved, with ñve per cent special and fifteen per cent general damages, with costs in both courts.