58 So. 688 | La. | 1912
Lead Opinion
In Orleans & J. Ry. Co. v. International Const. Co., 113 La. 409, 37 South. 10, this court held that the appellant is not responsible for an error in the return day, though his counsel wrote the order, especially where the prayer was that the appeal be made returnable according to law. We said:
“The order was not less the act of the judge because counsel wrote it out.”
The error in the return day the error in the citation.
The further objection that the transcript does not contain the evidence is repelled by the statement of facts found in the record.
The motion to dismiss is therefore overruled.
According to the statement of facts, plaintiff in injunction testified that the. cattle seized were the only cattle he had, and admitted that he had talked about selling or trading them. Two witnesses testified that plaintiff in injunction had offered to sell the cattle to him before the suit on the due-bill; but they could not agree on the price.
There was no joinder of issue on the mer its; and a cause cannot he tried without a contestatio litis. It does not appear that any evidence was offered on the trial of the exception. Article 1074 of the Code of Practice requires justices of the peace to preserve a record in which they shall state, among other proceedings, “the answer of the defendant, if he appears, and his nonappearance, if.he makes default.”
As the defendant was present, the justice, after overruling the exception, should have required him to answer the petition for injunction.
The justice certified that the • transcript contains a full, true and correct copy of the proceedings had before him. Hence it cannot be assumed that there might have been an oral answer.
In his petition for injunction, the debtor claimed the constitutional exemption by proper allegations, and claimed damages for the wrongful seizure of his property. It is true that the petition was -not sworn to; but the petitioner a.t the same time made affidavit before the justice that the property seized was exempt from execution. The claim of exemption appears to have been denied because the debtor had offered the property for sale.
It is therefore ordered that the judgment below be reversed; and it is now ordered that this cause be remanded for further proceedings according to law, and that the appellees pay costs of appeal.
Rehearing
On Rehearing.
The defendant, whose property was seized, sued out an injunction to prevent its sale, on the ground that it was exempt from sale for debt under the homestead law.
Motion to Dismiss the Appeal.
This court has decided that such an error is imputable to the judge, and is not fatal to the appeal. It does not appear that the oversight was other than an oversight of the judge.
Part of the prayer of the petition is as follows:
“Prays for an order of devolutive appeal from said judgment, returnable to the Supreme Court of Louisiana; that the return day, therefore, be fixed by the court, as well as the amount of the bond” — which was done.
. There are several orders of appeal. In one of these orders, the word “6th,” date of the order, is in the handwriting of the judge by whom the order was signed.
It is true, as said by the appellee, that the judge shall fix the return day in the order granting the appeal, which shall not be less than the time fixed in the statute, nor over the delay mentioned in the act, except by consent of parties.
But it is also true that the duty of fixing the return day rests with the judge a quo.
This court has decided again and again, as it is the «ourt’s order, as stated in the act quoted above, it is generally the court’s error. State ex rel. District Attorney v. Sheriff and Tax Collector, 47 La. Ann. 278, 16 South. 666; State ex rel. Breazeale v. Sheriff, 45 La. Ann. 1231, 14 South. 130; State v. Cannon, 44 La. Ann. 734, 11 South. 86.
Not appellant’s error, as it appears. Section 4 of Act 45 of 1870; Banking Co. v. Lumber Co., 47 La. Ann. 587, 17 South. 143; Pearce v. State, 49 La. Ann. 643, 21 South. 737.
The foregoing disposes of the, motion to dismiss the appeal, which is therefore overruled.
The defendants in injunction filed an appearance headed “Exception,” but in the body it is alleged that it is a plea to the merits, and they deny indebtedness. None the less the pleader prays that this appearance be noted solely for the purpose of an exception.
First, according to defendants, it is an exception and afterward it is an answer; at another time, it is an answer and not an exception. Of this there is certainty — it was an appearance which cures all defects of citation or want of service, and it follows that this objection is overruled.
This brings us to the allegation of the petition and the want of evidence. The debt- or, Henley, sets forth in his petition for an injunction, restraining his creditor, Allen, from seizing and selling his property, that he is the head of a family, and that his wife does not own $2,000 in her own right; that the property is exempt from seizure and sale under the homestead law; that he has been damaged, and other similar allegations.
This is the petition to which defendant filed an exception, or an answer, as before stated.
Proceedings before the justice of the peace are verbal, with the exception of certain notations, which should be made of them. Jurisdiction is not controlled entirely by the allegations, provided there is sufficient compliance with- the requirement in proceedings before the officer to enable the one sued to make out his defense. Plaintiff committed errors, so did the defendant, and the judge a quo is not free from them; for he, on the merits, decided that the mere offer to sell property subject to homestead had the effect of divesting his debtor from his right to a homestead.
We see no reason why the case should not