Lamorandier v. Meyer

8 Rob. 152 | La. | 1844

Garland, J.

E. Lamorandier, fils, having obtained a judgment against the defendants, issued an execution out of the District Court of the First District, directed to the sheriff of the parish of St. Landry, where the two tracts of land are situated which were sold by the plaintiff to the defendants, the price of which formed the consideration of the notes sued on, and on which a special mortgage was retained to secure the payment of said notes. The defendant Meyer, is a resident of the city of New Orleans, and Zimpel resides in parts unknown, but was supposed to be represented in New Orleans by F. Frey, who has his power of attorney unrevoked. Upon the receipt of the writ, the sheriff proceeded to seize all the right, title, and interest, of the defendants to the land mortgaged to the plaintiff, “ and notified the said Charles Meyer, and Frederick Frey, attorney in fact for Charles F. Zimpel, both living in New Orleans, enclosed in a letter to the sheriff of the first judicial district, New Orleans, for service of such seizure, of the day when said property would be offered for sale, and to attend and name an appraiser. Advertised said property according to law, to be sold for cash, at the court-house, in the town of Opelousas, on Monday, the 4th day of October, 1841.” The seizure was made on the 28th day of the month of August previous. The return then proceeds to state, that the property was appraised by appraisers, chosen for the plaintiff and defendants, who were duly sworn, and that, after appraisement, it was sold for two-thirds of its value to the plaintiff, E. Lamorandier, fils, and Decoudray Lamorandier, to whom a deed was made by the sheriff in due form, and regularly recorded.

The aforesaid purchasers applied to the District Court of the First District for a monition, under the provisions of the act of March 10, 1834, setting forth all the foregoing circumstances. The application for a monition was advertised in the newspapers, and in due time Meyer, one of the defendants, made opposition to the homologation' of the sale; because, as he avers, the property was not legally seized, nor any demand made, nor notice of seizure given to the opponent; and because the land was not duly advertised for sale, nor appraised, nor any of the legal requisites complied with.

Upon the trial, the applicants for the monition produced the execution and return thereof, and the sheriff’s sale, also the newspapers in which the application was published. The opponent introduced as a witness F. Frey, who stated, that he had formerly been the attorney in fact of Zimpel, but did not then consider himself as such, nor was he so at the time the notice purported to have been given, although the power had never been revoked. Thielen, the sheriff of the District Court,'says, that he has no recollection of ever having received any such notice as the sheriff of St. Landry mentions as having been sent to him. The sheriff of the parish of Orleans was also examined, and testified, that he had no recollection of ever having received any such notice. There is in fact no evidence of a notice of seizure, other than the mere declaration of the sheriff of St. Landry, in his return, that such notices were sent by mail to the sheriff in New Orleans, to be served : but whether they were received or served, is not shown.

The judge, in his judgment, says, “ that as it is not shown, that the formalities required by law for the sale of property seized under execution in this case were not complied with, the return of the sheriff creates a prima facie presumption of regularity in the proceedings, which throws the burden of the proof to the contrary on the party opposing.” The judge further says ; “ that the notice by a sheriff making a seizure under execution, to the party in the cause to appoint appraisers, is only to be considered applicable to those cases where the party to be notified resides within his bailiwickwherefore he homologated the sale, and from that judgment Meyer has appealed.

Articles 654 and 655 of the Code of Practice are peremptory as to a notice of seizure being given to the debtor, with a list of the property seized. Article 667 also requires a notice; and, although no particular mode is pointed out by the Code how it ' shall be served, when the debtor resides in a different parish from' that in which the property is situated, yet we cannot agree with the district judge that no notice is necessary, when the judge resides in a different “ bailiwick ” from that in which the sheriff exercises his authority. As to the mode of giving the notice, the sheriff of St. Landry seems to have adopted a very reasonable one, in sending it to the sheriff of the District Court of the First District to be served, the debtor residing in his “ bailiwick,” and the process having issued from that tribunal. Nor can we concur with the district judge in his opinion, that when a debtor, or defendant, opposes the homologation of a sale made under execution, he must show that the formalities of the law have not been complied with, and that the onus probandi is on the opponent. We think it is the duty of the plaintiff in the monition, to prove a compliance with the legal formalities; and that not being proved in this case, we think the court erred in homologa-ting the sale, as to the opponent Meyer. The other defendant, Zimpel, not having opposed the sale, nor appealed from the judgment rendered, we cannot decide on any rights he may have in the premises.

It is, therefore, ordered, that the judgment of the District Court be reversed, so far as the rights of the opponent Meyer are concerned ; and it is ordered and decreed, that the sale made by the sheriff of the parish of St. Landry, of the land described in his return, and in the petition for a monition, be annulled and set aside, so far as the rights of the opponent Charles Meyer are concerned ; the plaintiff paying the costs in both courts.