Weems v. Ventress

14 La. Ann. 267

• Court: Supreme Court of Louisiana
• Decided: April 15, 1859
• Status: Published

Opinions

Buchanast, J.

This is an appeal from an order of seizure and sale upon a note given for the price of a sale, protested for non-payment.

The defendant assigns for error on the face of the proceedings :

1st. That the act of sale stipulates that the note on which this order has issued, shall remain deposited with the parish Recorder until a certificate of non-mortgage is furnished.

The plaintiff annexes the note to his petition for seizure and sale. His possession oí the note is prima fade evidence that it has been delivered to him by the depositary, (the parish Recorder,) after a certificate furnished. If the plaintiff has come into possession of this note improperly, this would be the ground of an injunction, not of an appeal from the order of seizure and sale.

2d. That the order of seizure and sale allows interest from the 15th of April, 1858 ; while interest should only have been allowed from the 17th, the date of protest.

The act of sale declares the price to be payable, a portion in cash and the balance in six equal and annual instalments, for which the vendee has executed his six promissory notes, “ with interest from and after maturity, at the rate of eight per cent, per annum till paid, and said notes are all dated this day, and payable respectively on the fifteenth of April of the years 1858,” &c. By contract, therefore, as well as by law, (Acts 1855, p. 352,) the interest ran upon this note from the day of its maturity, the 15th of April, 1858.

The case of Cumming v. Archinard, 1 An. 280, relied on by defendant, was decided under the old legislation of Louisiana, according to which interest only ran, in the absence of a contrary stipulation, from the day of protest of a note. See also the case of Andrews v. Rhodes, 10 Rob. 52.

3d. That the order of seizure and sale improperly allowed four dollars costs of protest, for which the record furnishes no warrant. ,

Since this assignment of errors, the record has been completed upon the application, regularly made, of the appellee; and an amended copy of the protest, with the notarial fees ($4) endorsed, has been certified to us by the Clerk of the District Court.

Upon this point, it is not out of place to observe, although unnecessary for its • decision, that there are some very sensible suggestions in the dissenting opinion of Judge Preston, in the case of Nichols v. Grice, 6 An. 446, (quoted by appellant,) to the effect that parties against whom executory process is issued for an amount which exceeds in some particular the sum shown to be due by the documents filed, ought to address themselves to the Judge who issued the order, to have the error corrected, instead of making such error the pretext for an appeal, involving vexatious delays, and it may be great pecuniary loss to a creditor in pursuit of a just debt. In fine, this is a case where the maxim applies, de mini-mis non curat lex.

"We decline to allow damages for a frivolous appeal, as asked by the counsel of appellee, for the reason that the record, as it stood when the assignment of errors was filed, did not exhibit the notarial fees of protest and notices.

It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.