Shephard v. Stewart

20 La. 191

• Court: Supreme Court of Louisiana
• Decided: March 15, 1868
• Docket: No. 1668
• Status: Published

Opinion

Howell, J.

The surety on an appeal bond has appealed from a judgment condemning him to pay the unsatisfied balance of the judgment against the defendant herein.

The rule against the surety is based on the sheriff’s return in the following words: “And after making diligent search and inquiry and demand of said defendant for other property to satisfy said writ, and the plaintiff named in the said writ failing to point out other property to satisfy'the same, and said writ having expired by limitation of law, is hereby returned credited as above.”

This does not conform to the 727 Art. C. P., which requires that the sheriff shall in his report “declare that he has found no property to seize, notwithstanding the demand on the parlies.” He does not here say that he made a demand on the judgment creditor, nor show any impossibility of doing so. His language implies that he considered it the duty of the plaintiff to point out property without a demand being made on him. The proceeding against the surety is very summary, and before he can be reached it must appear that all the formalities of the law in such cases have been strictly observed. C. P. 596, 726, 727; Act 1839, p. 170,. Sec. 20; 4 La. 301; 17 La. 416; 10 R. 138; 13 An. 264..

It is therefore ordered that Ire judgment appealed from be reversed, and that there be judgment dismissing the rule on E. C. Brown, surety, with costs in both courts.