12 La. Ann. 642 | La. | 1857
The plaintiff being the holder, in her capacity of tutrix* of paper secured by mortgage on property in possession of the defendant as third possessor, filed her petition in the District Court for the parish of Caddo» setting forth her cause of action and concluding with the following prayer:
“Wherefore petitioners pray, the premises being considered, that the said John V. Grigsby who is now present, and in the parish of Caddo, be notified of this demand by service of citation, and a copy of this petition, and that on his default to return the property above described, or to pay the sum horetore set forth and claimed, that an order of seizure and sale issue to the sheriff of the parish of Caddo, commanding him. to seize and sell the said parcel of land,and to-pay out of the proceeds, thereof, to petitioner, $4,725 &c., and for all necessary orders and decrees, and for general relief.”
Citation in the usual form issued and was served with the petition upon th© defendant in January, 1857.
On the 30th of May, the cause was by order of the court set for trial on the; 5th of June. On the 5th of June, an order was entered on the-minutes granting a delay until June 8th, for defendant to answer and fixing the cause for trial on the 9th of same month. On the 9th day of June, the defendant offered to file his answer, which was objected to, on the grounds that action was-ride exeeuiira, and therefore defendant had no right to file an answer, and that he has no right to call Lewis K- Grigsby in warranty. The court refused to allow the defendant to file his answer on the first of those grounds, and defendant excepted.
The case was afterwards reassigned for trial and judgment rendered in favor of plaintiff, ordering the land to be seized and sold to satisfy the plaintiff’s demand.
The first question presented by the defendant and appellant is, did the court err in refusing to allow defendant to file his answer ?
In the answer, the defendant joined by his vendor and warrantor, sets up various defences to the plaintiff’s action. If, therefore, he had a right to file the same in the lower court, the cause must be remanded, to allow him to prove his allegations.
The Code of Practice divides actions into three kinds, ordinary, executory and summary. Art. 97. The ordinany action is where citation takes place and all the delays and forms of law are observed. They are executory when the seizure is obtained against the property ©f the debtor, without previous
The defendant had, therefore the right to file his answer and to be hoard upon his allegations therein as in other cases.
It is ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that the case, be remanded to the lower court with instructions to the same to receive and cause the answer of the defendant annexed to his bill of exceptions to be filed, and otherwise proceed according to law, the plaintiff paying the costs of the appeal.