Testart v. Belot

32 La. Ann. 603

• Court: Supreme Court of Louisiana
• Decided: May 15, 1880
• Docket: No. 7870
• Status: Published

Opinion

The opinion of the Court was delivered by

Fenner, J.

Plaintiff and appellant alleges that the defendant has -caused to be seized, under an order of, seizure and sale against a third person, property of which he is owner, and asks for an injunction against -.the seizing creditor and the sheriff to stop the execution of the writ, and ;$or a decree perpetuating said injunction and recognizing his ownership. From a judgment rejecting his demand, he has appealed. Appellee-moves to dismiss the appeal on the ground that the amount in dispute-does not exceed one thousand dollars.

The amount for which the writ of seizure and sale is issued is un-appealable, and, if the plaintiff were the defendant in that writ, the-appealable character of his injunction suit would be governed by the amount involved in the writ enjoined. But it is well settled that where-a third person enjoins the seizure under writ of fl. fa. or seizure and sale issued against another, on the ground that the property belongs to him, the matter in dispute is the property and the ownership thereof,, and the right to appeal is regulated by the value thereof.

State vs. Judge, 12 A. 48. Gayarré vs. Hays, 21 A. 307. State vs. Elder, 30 A. 229. McCormick vs. Sullivan, 28 A. N. R. 12 Rob. 519. I A. 310. Plaintiff, in his petition, alleged that the property was worth over six hundred dollars.

This allegation does not exclude the idea that it may be worth over one thousand dollars ; and was made with the evident intention to bring the case within the appealable jurisdiction of this Court, as it then existed. He has now filed affidavit in this Court that the value of the property exceeds one thousand dollars.

He would have had the right to file such affidavit and so maintain his appeal, if the record had contained no valuation of the property involved, and we think he is not shut off from doing so by the allegation in his petition which is, in no way, inconsistent with the truth of' the affidavits.

Carrollton vs. Board, 21 A. 447.

State vs. Judge, 20 A. 574.

State vs. Hitot, 21 A. 336.

Hennen’s Dig. Appeal I (a) 1), No. 3.

Under above authorities the affidavit is sufficient to maintain the-appeal, and the motion to dismiss is overruled.