73 So. 308 | La. | 1916
Lead Opinion
The Citizens’ Bank of Columbia, Miss., instituted executory proceedings against the Bellamy Lumber Company for the foreclosure of a mortgage on certain property in Washington parish, securing the payment of a promissory note executed by the lumber company for $10,000. The mortgage bore upon several tracts of timber land and the improvements thereon or thereto belonging, including, expressly, a circular sawmill complete, consisting of a Wheeland edger, carriage, live rolls, cut-off rig, nigger, steam feed, log stop and roller, engines, boilers, tools, furniture, belting, etc., all of which was declared in the act of mortgage to be part and parcel of the land for the purposes of the act of mortgage, which also expressly included all other shaftings, tools, connections, and machinery of any kind whatever situated upon the land described in the act of mortgage or used in connection with the mill. The mortgage wa,s granted by O. E. Bellamy, as president and general manager of the Bellamy Lumber Company, and it was recited in the act of mortgage that he was duly authorized by the by-laws of the corporation, although it does not appear that a copy of the by-laws was annexed to or filed with the petition for the order of seizure and sale. The act of mortgage was granted in the presence of a notary public and two witnesses, and contains a confession of judgment, the pact de non alienando, and a waiver of the benefit of appraisement. The order of seizure and sale was granted on the 21st of December, 1915; and it appears from the sheriff’s return on the writ of seizure and sale that, after service of the notice to pay, and when
The Citizens’ Bank of Columbia has filed a motion to dismiss the appeal, on the following grounds, viz.: (1) That it appears from the petition for the appeal and from the record filed herein that the order of seizure and sale appealed from was regular and legal and was granted on sufficient authentic evidence; (2) that the petition for appeal does not show or allege that the appellant had a right to appeal or any interest in appealing from the order of seizure and sale; and (3) that it appears from the allegations of the petition for appeal that the appellant had an adequate remedy in the district court to enjoin the executory proceedings or to have the alleged debt due to the appellant paid by preference out of the proceeds of the property seized and sold in the executory proceedings.
The doctrine of the cases cited is that the mere allegation of an appellant, who was not a party to the suit in which the judgment appealed from was rendered, that he is aggrieved by the judgment, is not enough to give him the right to appeal; that it is incumbent upon such third party to disclose in his petition for the appeal that he was in fact aggrieved by the judgment. It is true the decree in one of the cases cited, Insurance Co. v. Costa, supra, was reversed on rehearing, but not on the ground that the doctrine stated was erroneous.
In support of their contention that the mere allegation of an appellant, appealing from a judgment rendered in a suit to which he was not a party, that he is aggrieved by the judgment, is sufficient to give him the right to appeal, appellant’s counsel cite the following decisions, viz.: State ex rel. Mead v. Belden, Judge, 17 La. Ann. 320; State ex rel. Pecot et al. v. Parish Judge, 27 La. Ann. 184; and State ex rel. Bonnet v. Judge, 29 La. Ann. 397. Our opinion is that the decisions do not support the contention. In State ex rel. Mead v. Belden, Judge, the relator, whose right of appeal was recognized, was a party to the proceeding in which the judgment appealed from was rendered; and his petition disclosed in what manner he was aggrieved by the judgment. In State ex rel. Mrs. Pecot et al. v. Parish Judge, the relators, whose right of appeal was recognized, attempted to intervene in the suit in the parish court; but the judge of that court refused to permit the intervention. This court said that the only reason why relators were not parties to the suit was because the judge erroneously refused to allow them to intervene, and that, under such circumstances, their petition for an appeal disclosed a right to appeal. The decision in State ex rel. Bonnet v. Judge is entirely against the contention of the learned counsel for the appellant in this case. There, it was said that a third person, not a party to the suit, might appeal from the judgment rendered, provided he proved, or it appeared from the record, that he had a pecuniary interest in the suit and was aggrieved by the judgment. It was held that, when the parties to the suit de
In support of their contention that the mere fact that the appellant in this case had a lien on a part of the property seized and sold in the foreclosure proceedings entitled the appellant to an appeal from the order of seizure and sale, the appellant’s counsel cite the decisions in Pillot v. Cooper, 7 La. Ann. 656; Keys, Maltby & Co. et al. v. Riley, 12 La. Ann. 19; Mutual Insurance Co. v. Houchins, 52 La. Ann. 1137, 27 South. 657. We do not consider the decisions cited applicable to the facts of this case. In Pillot v. Cooper the appellant claiming a half interest in a boat which had been adjudged to be the property of the plaintiff under a sale made by the appellant’s co-owner, in a suit to which the appellant was not a party, took a suspensive appeal from the judgment, and thus prevented its execution. It is plain that Mrs. Pillot had an advantage to gain by a reversal of the judgment before it could be executed, though the issue of ownership would not have become, as to her, res judicata, by the judgment, if she had not appealed. The report of the opinion in Keys, Malt-by & Co. et al. v. Riley et al. does not disclose whether the appeal, taken by one who was not a party to the suit in which the judgment was rendered, was a suspensive or a devolutive appeal; but it appears that the proceeds of the property attached and sold by the' sheriff had not been distributed, as ordered in the judgment, when the appeal was taken. It is plain that the appellant, who had caused the property to be attached in another suit, had an interest in prosecuting the appeal from the judgment recognizing a privilege in favor of the other attaching creditor. The doctrine announced in the syllabus of that case is:
“Where property is under seizure at the suit of several attaching creditors, and judgment is rendered in favor of the plaintiff in the prior attachment, the others have a right to appeal from such judgment under article 571 of the Code of Practice, notwithstanding there had been no issue joined and no curator ad hoc appointed to represent the defendant in the subsequent attachment.”
In the case of Mutual Insurance Co. v. Houchins et al., a Mrs. Allen appealed from a judgment decreeing that the defendant Mrs. Houchins had an interest to the extent of $6,-363.64 in a policy of insurance of $10,000 in the plaintiff company, on the life of one Green, deceased. It does not appear whether the appeal taken by Mrs. Allen, who was not a party to the original suit, was a suspensive or devolutive appeal; nor does it appear that the insurance company had made payment to Mrs. Houchins in compliance with the judgment, when the appeal was taken. We assume that the insurance company had not paid the claim of Mrs. Houchins, when Mrs. Allen appealed from the judgment. Under such circumstances, the latter had an advantage to gain by a reversal of the judgment, and therefore had a right to appeal from the judgment, although her claim to be recognized as the beneficiary of the policy would not have become res judicata by virtue of the judgment if she had not appealed from it.
The petition for the appeal, in this case, not only fails to show that the appellant has an interest in prosecuting the appeal, but shows affirmatively that the appellant has nothing to gain by the appeal.
The appeal is dismissed, at the cost of the appellant.
Ante, p. 269.
Concurrence Opinion
concurs on the ground that an order of seizure and sale after it has been fully executed by the seizure and sale of the property is no longer appealable from; such an order being a mere order adjudicating nothing, and therefore functus officio after it has been fully carried out.