Scott v. Niblett

6 La. Ann. 182

• Court: Supreme Court of Louisiana
• Decided: February 15, 1851
• Status: Published

Opinions

The judgment of the court was pronounced by

Etjstis, C. J.

This appeal is taken by the plaintiff from a judgment of the Court of the Tenth District, dissolving an injunction obtained by him, with twenty per cent damages, four per cent interest, and the sum of one hundred and twenty-five dollar’s special damages.

The defendant, Niblett, had obtained judgment against the plaintiff for the sum of eleven hundred and sixty dollars and ninety cents, with interest. On this judgment, execution was issued directed to the sheriff of the parish of Madison, who, it is alleged, seized a certain promissory note belonging to the plaintiff, drawn by Sidney S. Erwin to the order of the plaintiff, and bearing his endorsement, which was on file in a certain suit then pending for the recovery of the amount of the note between the plaintiff and said Erwin, in the District Court of the parish of Madison. The sale of the note under this execution was enjoined at the instance of the plaintiff, on the ground that no valid, seizure had been made of the note, it forming a part of the records of the court, and being necessarily in the exclusive custody and possession of the clerk of said court. The defendant, in his answer, asserts the validity of the seizure as made by the sheriff, and the judgment of the court below was in his favor.

It appeal's that the sheriff called at the clerk’s office and asked the clerk for the note; it was handed to him. The sheriff took a description of it and returned it to the clerk with a notice of the seizure. It is plain that the sheriff could in no proper sense be considered, under these facts, as having any possession of the note, which remained under the exclusive custody and control of the public officer. No rights can be considered- as having been acquired by the sheriff having in his hands, for a few moments, a document which formed a part of legal proceedings, and the case must be determined on other grounds than those presented by these facts.

The sheriff gave notice of the seizure of the note to the defendant, and every step appears to have been taken by him, so far as the defendant in execution and the clerk of the court are concerned, to render the seizure formal and valid.

We have always held, that in order to make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer. Gaines v. The Merchants Bank, and cases there cited. 4th Ann. 371. A promissory note endorsed in blank by the payee, is of that class of property; it is not merely the evidence of debts: with its endorsements it contain the obligations of several parties, and is the subject of sale and delivery as much as any other movable. In the case of Galbraith v. Snyder, 2d Ann. 493, we held that a seizure of notes was not made by a levy upon the copies of the notes which were filed in a suit; and there is no case, we believe, in which the proceedings of courts have been permitted to be affected by any other action than through the court itself. We do not understand that it is part of the duties of clerks of court to receive notices of this character or to incumber their archives with papers, except under the direction of the court.

The article 642 of the Code of Practice, which authorizes the seizure and sale of the rights and credits of the debtor, without pointing out the mode in which they are to be reached, has been a fruitful source of abuse and litigation, without affording much real benefit to the bond fide and 'honest creditor. All attempts to give it effect, except in accordance with the just protection of the rights of purchasers at sheriff sale as well as of debtors, we have always discountenanced. Without a legal seizure, a sale under it becomes a nest egg of trouble and litigation.

Wé are not called upon to point out a mode in which we think promissory notes in suit, and on the files of the court can be seized and sold under this article of the code. A rule that we might, under our present impressions prescribe, might work badly in practice and produce difficulties which we do not at present foresee. The only thing before us is the matter in litigation, and our only enquiry must be, is the seizure of the note, as made by the notice to the clerk of the court and to the defendant in execution, valid and sufficient in Jaw to give a purchaser a title to the note under the judicial sale 1 In conforformity with our uniform decisions, we are bound to hold the seizure of no legal effect. As to any consequence being attached to what passed between the sheriff and the clerk in handing the note to the former, it is only necessary to state that the sheriff is not permitted to avow a purpose of interfering with the clerk’s exclusive custody of a document on the files of the court.

The judgment of the district court is therefore reversed, and the further proceedings of the sheriff on his writ, under the alleged seizure of the note are hereby enjoined; the defendant paying costs in both courts.