Bantz v. Price

14 La. Ann. 191 | La. | 1859

Buchanan, J.

The intervenor, Izod having obtained judgment against Bantz for §440, with interest and costs, an execution was subsequently issued by the Clerk of the Court against Izod, for his costs, (§9 20) under which the judgment was seized aud sold. It was bid off at Sheriff sale in January, 1850, for the sum of eighteen dollars by Bantz, the defendant in the judgment, in the name of his step-son, Trice, who was not present at the sale, and a deed was made to Price.

Price now seeks to enforce tlie judgment, and has seized land of Bantz under a fi-fa. Bantz enjoins the seizure, alleging that he is the true owner of the judgment, having bought it in reality for his own account, although he used the name of Price in the purchase.

Izod intervenes, and claims that his property in the judgment was never legally divested, because the formalities of law were not complied with ; no detailed bill of costs having been previously made out and demanded, as required by the Act of 1842, p. 440,112, and no notice having been given to him of the seizure.

There was judgment for the intervenor against the plaintiff and defendant. The defendant alone has appealed.

It appears from the evidence, that no detailed bill of costs was made out by the Clerk and demanded of Izod, previous to the issuance of the execution under which the judgment was sold. But the counsel of appellant contends, upon the authority of the case of Copley v. Edwards, 5th Annual, 647, that this provision of the Act of 1842 (reenacted in 1855, Rev. Stat. 124,) does not apply to executions issued for costs after judgment rendered.

In Copley’s case, the judgment had condemned Copley, plaintiff, to pay the costs. Of course, the_/?./«. issued upon that judgment, as in ordinary cases. But this is a case where the plaintiff recovered his costs by the judgment. The proceeding to render his property liable in execution for costs, is therefore statutory, and the forms of the statute must be strictly pursued, under pain of nullity. We see here an example of a judgment bought in for less than one-twentieth of its nominal amount, by the judgment debtor, upon a sale to make the costs, for which the purchaser was already liable. No stronger case could be presented in favor of the requirement in such sales, of a strict compliance with the legal forms.

There are two letters of defendant, addressed to the intervenor, in evidence, from which it appears that after this injunction was sued out, defendant gave in-tervenor information of what had taken place, and made propositions to purchase of intervenor his right to the judgment against Bantz. This correspondence seems to corroborate the allegation of Bantz’s petition, that he had purchased at sheriff’s sale for himself, and not for Price.

Defendant pleads the prescription of five years in bar- of this action, under Article 3507 of the Oode. That Article is not applicable to this case.

Judgment affirmed, with costs.