Kline v. Succession of Murphey

23 So. 444, 50 La. Ann. 518, 1898 La. LEXIS 496

• Court: Supreme Court of Louisiana
• Decided: January 10, 1898
• Docket: No. 12,669
• Status: Published

Opinions

On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

The parties to this litigation claimed a preference over the funds in the hands of the sheriff to be distributed.

The plaintiff, Christian Kline, proceeded via executiva in forceclosing his mortgage. The property seized was sold for three thousand five hundred dollars.

We are informed by the sheriff’s return on the writ of seizure and sale that the costs of the foreclosure amounted to one hundred and fifty-five dollars; that the claim secured by privilege amounted to one hundred and sixty-six dollars and seventy-eight cents; that he retained in his hands six hundred dollars under an order of court to meet any indebtedness to A. Wilbert’s Sons Lumber and Shingle Company, and the remainder of the purchase price was paid to the attorney for Christian Kline, the plaintiff.

The order issued in accordance with the petition of Wilbert’s Sons Lumber and Shingle Company, third opponents, directed the sheriff to retain in his hands until further order of the court sufficient of the proceeds of the sale to pay its claim.

The sheriff complied strictly with the order, retained the fund stated and paid the remainder of the funds to those who were entitled to receive them. There was not the least opposition raised to this payment.

The only question remaining for decision is whether the intervenors, Wilbert’s Sons & Co. are entitled to the fund and privilege they claim.

The amount of their ciaim is less than the lower limit of this court’s jurisdiction and the proceeds of the sale they claim is also less than that jurisdiction.

The appeal must therefore be dismissed. We have no discretion in the matter.

It is ordered and adjudged that the appeal is dismissed.