25 La. Ann. 497 | La. | 1873
Opinion on the Merits
On the Merits.
The controversy turns upon the single question whether the plaintiff’s crop growing upon the mortgaged premises was embraced by the-seizure. The plaintiff and Adelina Broussard say in their testimony that when the deputy sheriff made the seizure he was informed that the plaintiff had his crop on the land, and that inquiry was made of him if the whole crop on the plantation was seized, to which he replied, that it was none of the plaintiff’s business, and that if he had:, any right to the ci op seized, he had to go to St. Martinsville, and there-make his claim. The sheriff’s return on the order of seizure recites-clearly that with the land, “ all the right, title, etc., or Adelina Broussard and Sevigne Broussard in the sugar, cotton and corn crops on said plantation ” were seized.
The deputy sheriff was introduced by the defendant as a witness to-prove the manner in which he made the seizure. Objection was made-on the ground that his parol statement was not the best evidence the case admitted of, and that his testimony was inadmissible to contradict, vary, or explain the terms of a written instrument, etc. The objection was overruled and a bill of exceptions reserved. We think the reasons of the judge for admitting the evidence are satisfactory. The plaintiff had been allowed to explain by parol the circumstances-attending the seizure, it was competent for the defendant to produce rebutting evidence in relation to the facts connected with the seizure,, which do not tend to contradict, vary, or alter his written return on the order. His testimony is that he did not seize the defendant’s crop, and that he so informed Adelina and Sevigne Broussard at the time; that his instructions to the keeper he left in charge of the plantation, were positive that they should not in any manner impede or trouble the lessees in their work on their crop in' the plantation.
No interference was made with the Broussards in their cultivation.
We think the decree of the lower court erroneous.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed.
It is further ordered, that there be judgment in favor of the defendant, the plaintiff and appellee paying costs in both courts.
Lead Opinion
A motion is made to dismiss this appeal on the grounds that the appeal is premature, having been applied for and granted beiore the judgment was rendered, and that the bond is defective and without force because it was given before the judgment was rendered.
The case was tried before a jury, and when the verdict was rendered the defendant moved for a new trial which was refused. An appeal was then asked for and granted, and the appeal bond filed— all prior to the date of the judgment as entered on the ininutes of the court.
The judge having entertained the motion for a new trial and refused to grant it, the defendant may well have considered that the verdict of the jury was adopted as the judgment of the court as of that date. A new trial having been denied, there remained nothing further for the court to do but to render a judgment pursuant thereto, and under the mode of procedure in the country, the appeal may be considered as taken nunc pro tunc. 12 An. 289, 596; 15 An. 521; 23 An. 704. The granting of the appeal at the time was an irregularity that does not authorize the dismissal of it.
. The motion is overruled.
The plaintiff alleges that the defendant caused him damages to the amount of fifteen hundred dollars by illegally seizing, under execution