30 La. Ann. 520 | La. | 1878
The opinion of the court was delivered by
This suit is against the sureties on a bond given to release property sequestered. The judgment on the intervention is net appealed from. There was judgment in favor of the plaintiffs against the defendant sureties, who introduced no evidence below. The case is-before us on an assignment of errors. ^
The answers set up fraud and collusion between plaintiffs and Brid-, well, defendant in the sequestration suit, and principal in the release-bond, between whom it was agreed, to the prejudice of the sureties, that
The second ground assigned is that the defendants were not allowed to prove that there was no legal or valid sequestration to support the bond sued on, and that the writ issued without affidavit as required by law. It does not appear that this question was ever passed upon or raised between the plaintiffs and the principal on the bond. It was not an exception merely personal to the debtor, and especially in a case like
The third ground assigned is that the defendants were not allowed to prove that the property sequestered did not belong to Bridwell. In the case of Quinn vs. Mays, 2 R. 510, the surety on an attachment bond was allowed to prove that the property attached did not belong to the defendant in attachment.
The fourth assignment is that defendants were not allowed to prove that plaintiffs had no privilege or lien on the property sequestered. In an ordinary case this might not be permissible aftera judgment against the principal recognizing the privilege; but for the same reasons stated under another head we think these defendants should have been allowed to prove the non-existence of the privilege when, as in this case, they set up that a fraudulent judgment, one rendered by consent, is sought to be used to bind them.
The fifth assignment is to the refusal to permit the defendants to prove that the judgment was merely by consent, and therefore not binding on them. This was error. It is well settled that consent judgments are only binding as such between the parties, and have not the effect of judgments regularly rendered contradictorily, as regards third persons. See 3 An. 34; 12 An. 426; 6 An. 2; 4 An. 276; 2 An. 907; Allison vs. Thomas and Rosenfeld, 29 An. 732.
The sixth assignment is that the defendants were refused the right to offer evidence to prove that one of them, Mrs. Hamilton, now Thrasher, had a lessor’s privilege and right of pledge upon the property sequestered superior to any right of the plaintiffs and more than sufficient to absorb the proceeds. We do not know that this concerns any of the defendants except Mrs. Thrasher, unless it were further shown that they were unable to return the property by reason of the assertion of such privilege or right; but as to her it was properly provable as part of her case, and more especially in connection with the other defenses urged. v
The seventh and last assignment is that the liability of the sureties
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is avoided and reversed, and the case remanded to be further proceeded in according to law and the principles of this opinion.
It is further ordered that the plaintiffs pay the costs of appeal, those of the court below to abide the judgment which may be rendered.