Jones v. Moore

11 La. Ann. 616

• Court: Supreme Court of Louisiana
• Decided: July 15, 1856
• Status: Published

Opinion

Merrick, 0. J.

This action is brought by the plaintiff, upon a decree rendered in the Oil-cut Court in Chancery, for the county of Saline, of the State of Arkansas, for $974 38, and interest at six per cent, and costs, against one Rutherford and the defendant, and upon a “delivery bond” made on an execution issued upon said decree.

By the statutory law of Arkansas, the Sheriff or other officer charged with the service of any execution, is required to levy it upon personal property, and the defendant is authorized to retain possession of the same until the day of sale, by giving bond in favor of the plaintiflj with sufficient security, to be approved by the officer, in double the value of said property, with a condition for the delivery of the property to the officer at the time and place of sale named in such condition • and with the further condition, that in case the property shall not he delivered according to said condition, the bond shall have the force and effect of a judgment on which an execution may issue against all the obligors. By the same statutes it is provided, that the forfeiture of the bond shall be shown by the return of the officer, endorsed on the execution. See Dig. of Statutes of Arkansas, pp. 500, 502, secs. 37, 46 and 47.

The plaintiff, in his petition, after alleging that said bond having been forfeited, acquired the force and affect of a judgment, according to said law of Arkansas, further averred, that the “ original judgment was satisfied and no-vated in this that the said bond was taken for the delivery of property as aforesaid, and forfeited as aforesaid, and therefore the said bond became anew judgment, having the affect as aforesaid; that both said judgments, the original and statutory judgments, have the effects of and are joint and several judgments, according to the laws of the State of Arkansas.”

The defendant excepted to the plaintiff’s petition, as containing inconstant demands. The exception being overruled, he filed an answer containing a general denial and an averment, that the bond set up in the plaintiff’s petition was false and forged as to his signature, and he sustained his answer by his affidavit.

The principal question raised in this court, and the only one requiring our notice, arises from his denial of the signature to the bond. The defendant contends, that he is not bound to prove a negative, and that the burden of proof is upon the plaintiff to show, that the signature to the bond is genuine. The plaintiff, on the other hand, having rested - his case on the record, which he offered in evidence, says, that under the Constitution of the United States and the Act of Congress of 1790, his statutory judgment is conclusive against the defendant, must have the same effect in Louisiana, that it has in Arkansas, where the original judgment was rendered, and the statutary judgment substituted in its place.

We do not deem it important to decide either of the questions here presented. The allegation of novation with the qualification annexed, is not so absolute as to prevent the plaintiff from recovering judgment upon the original decree in Chancery. If, therefore, the defendant did not execute the bond, the original judgment was not extinguished, and the plaintiff is entitled to recover on his original decree. If he did execute the bond, the plaintiff is entitled to recover on the forfeited bond, but the original judgment alone indicates how much of the bond may be executed as a judgment. The defendant, therefore, has no interest in establishing the bond, except for the mere purpose of defeating a legal demand by a technicality. See case of Ruddell v. Magruder, 6 English Rep. 583.

We are not prepared to say, that the judgment ought to be amended in favor of the plaintiff for the small amount of costs claimed. And to the cost of the transcript, we see no reason why it may not be taxed among the costs under the judgment already rendered.

Judgment affirmed.