McFarlane v. Richardson

1 La. Ann. 12

• Court: Supreme Court of Louisiana
• Decided: April 15, 1846
• Status: Published

Opinion

The judgment of the court was pronounced by

Rost, J.

The plaintiff had instituted in the Parish Court an action of mortgage to obtain the seizure and sale of certain slaves in the possession of the defendant. Judgment was rendered in the first instance in favor of said defendant, and the plaintiff appealed. On the very day on which the Supreme Court rendered their docision on the appeal, reversing the judgment of the Parish Court and remanding the cause for a new trial, the plaintiff filed in said court a supplemental petition in the same suit, slating the foregoing facts, and also his apprehension that the defendant would remove the slaves out of the State, before he could have the benefit of his mortgage, and praying for a sequestration of said slaves. . At the foot of this petition he made oath that all and singular the allegations set forth and charged therein, were true, except as to the' information derived from others, which he believed to be true. Bond was given, and a writ of sequestration issued.

On motion of the defendant the sequestration was'set aside on the ground that the case was on appeal before the Supreme Court, and the plaintiff appealed.

Under arts. 275, 276 of the Code of Practice, the plaintiff was entitled to a writ of sequestration, notwithstanding the appeal'pending'at that time before the Supreme Court, on making a proper showing. We deem his affidavit sufficient. As none of the facts alleged in his petition are stated to have been derived from the information of others, they are all positively sworn to.

The judgment of the Parish Court is therefore reversed,"and it is ordered that the writ of sequestration be reinstated, and that the defendant pay the costs of this appeal.