39 La. Ann. 508 | La. | 1887
The opinion of the Court was delivered by
Relator complains of the refusal of the respondent judges to entertain an appeal, which lie brought before them from the District Court, and which they dismissed for want of jurisdiction ratione materlm.
The facts are that relator, as plaintiff in eight judgments, rendered in his favor against the same defendant, in a justice of the peace court, and each, therefore, in a sum less than one hundred dollars, caused execution to issue in each and all of his judgments against the same defendant, under which the constable seized certain property of the defendant of the value of several hundred dollars.
Subsequently, in execution of a judgment rendered by the same justice of the peace court, in favor of another party, against the same defendant, and also in a sum less than one hundred dollars, the same constable levied on the same property, which he had already seized under Relator’s execution, and was proceeding to advertise and to make a sale, under the latter, in advance of the previous seizure. Whereupon Relator sued out an injunction from the District Court, to restrain the constable from proceeding, as he proposed, to execute the
But relator also contends that the test of jurisdiction is in the value, of the property seized, which is shown to exceed the sum of five hundred dollars. That argument is also erroneous.
The real matter in dispute is the alleged misconduct of the constable, whose course threatens relator with a loss equal to the amount of the last judgment rendered against the common debtor.
The crucial question involved in the controversy hinges upon the right of the plaintiff in that case, to execute a judgment in a sum less than one hundred dollars on property which had already been seized at the instance of tliis relator. Neither party claims any x»'ivilege on the property of their common debtor in the hands of the constable; and the contest is reduced to a simple struggle for the first proceeds realized from the sale of the property.
In their brief, relator’s counsel say : “ We do not claim a privilege— that is, a right to be paid by preference out of the proceeds of the sale of the property because we enjoin its sale.” That feature of their case removes it beyond the. domain of the two decisions on which they rest this ground of their contention. Wood et al. vs. Rocchi, 32 Ann. 1120; Meyer, Weiss & Co. vs. Logan, 33 Ann. 1055.
The true test of jurisdiction in the premises is the amount of the judgment, the executiou of which is enjoined — and that is admitted by relator himself to be less than one hundred dollars. Loeb vs. Arent, 33 Ann. 1085; Endom vs. Ludeling, 34 Ann. 1024.
It is therefore ordered that the writs herein applied for he denied, at relator’s costs.