Kuntz v. Baehr

28 La. Ann. 90

• Court: Supreme Court of Louisiana
• Decided: January 15, 1876
• Docket: No. 5471
• Status: Published

Opinion

On Motion to Dismiss.

Wyly, J.

This is an appeal from a judgment on a motion to dissolve the injunction sued out by the plaintiff.

The defendant, „the appellee, moves to dismiss this appeal on the ground that the record is incomplete, because it does not contain the motion or exception on which the decree was rendered, and because the injunction bond is not in the transcript.

The mover is in error. The documents which he alleges are missing are in the record.

As to the writ and sheriff’s return referred to in the petition, it does not appear that they were received in evidence at the trial of the motion.

Motion denied.

On Exception.

Howell, J.

The plaintiff has appealed from a judgment sustaining an exception to his suit, which is an injunction to restrain the sheriff from putting his co-defendant, J. Baehr, in possession of property purchased by the latter under a writ of seizure and sale in the case of J.. Baehr vs. F. Kuntz. Tlie ground of tlie injunction is that the property so sold by tlie slieiiff was and is the homestead of the plaintiff herein, and the exception is no cause of action, because tlie plaintiff is not the owner of the property, and therefore cannot assert the homestead right

The judgment is correct. Tlie sale of the property divested all of plaintiffs rights, including that under the homestead law. If he had any right to a homestead, he should have asserted it prior to the sale. His personal notice to tlio sheriff and the plaintiff in tlio seizure and sale did not amount to a legal assertion of his right so as to secure or preserve the right of a homestead on the property under seizure.

Judgment affirmed.

Beliearing refused.