16 La. 254 | La. | 1840
delivered the opinion of the court.
The plaintiff brought suit against the estate of Cornelius Voorhies, for the balance of a note, bearing date the 24th of June, 1824, and filed with his petition, as evidences of his claim, the note itself, and an act of mortgage on a tract of land and a negro, executed before Henry Boyce, a justice of the peace, of the parish of Avoyelles. The defendant, pleaded the general issue, payment, and the prescription of five and ten years. The plea of prescription was sustained, and plaintiff appealed.
The record shows that in June, 1825, the plaintiff sued out of the District Court of the sixth judicial district, an order of seizure and sale, and that various fruitless attempts were made, from time to time, to levy the amount of the debt; when in June, 1826, C. Voorhies sold to the plaintiff the slave mortgaged in part payment of his claim ; thus reducing it to the balance now sued for. From that period, no steps appear to have been taken to enforce the payment of the balance.
The case has been submitted without argument. The appellant has, however, favored us with a long brief; he contends that the plea of prescription cannot avail the defendant, because in 1826, he (the appellant) obtained on his mort
This court has frequently held, it is true, that when a judge issues an order of seizure and sale, he renders such a decree as can be appealed from. If executory process is prayed for on an act importing a confession of judgment, the judge must examine and decide whether (he instrument unites all the requisites of the law necessary to authorize this summary proceeding. So far it is a judgment, and an appeal must lie from it, as from all other orders of court, that might work an irreparable injury. A judge might, erroneously, make such an order on evidence not warranting the issuing of it. Such, for instance, has been the case in the very decree relied on. It was granted in a deed of mortgage, executed before a justice of the peace ; an officer wholly unauthorized to pass such acts, except in certain cases, none of which are proved to have existed in the premises. But such a decree is not a judgment in the true and legal sense of the term, and possesses none of its features. It issues without citation to the adverse party ; it decides on no issue made up between the parties, nor does it adjudicate, to the party obtaining it, any right in addition to those secured by his notarial contract. If such an order was a real judgment, it would be out of the power of the judge granting it to set it aside ; after rendering this decree, he would be divested of all jurisdiction, and it could be reversed only by means of an appeal or a separate action of nullity; whereas, it is every day’s practice for the judge issuing such orders to set them aside, on a rule to show cause or an opposition ; and in most cases the proceedings are turned into an ordinary suit, in which a final judgment is afterwards rendered. Such a
It is, therefore, ordered, that the judgment below be affirmed, with costs.