Syndics v. Mayhew

2 Mart. 175 | La. | 1816

Mathews, J.

delivered the opinion of the court. This is an action, commenced by the syndics of the third district of the parish of New-Orleans, in order to cause a plantation, the property of the defendant, to be seized and sold in a summary way, to satisfy and reimburse the police jury of said parish, for expences incurred by them, in repairing and mending the levees of said plantation, agreeably to the general police rules. To shew themselves entitled to this summary and extraordinary remedy, they cited the fourth paragraph of the seventeenth article of these rules. On this application, the judge of the court below issued an order against the defendant and appellant, by which he was required to pay the amount claimed, or shew cause why his property should not be seized and sold. After the service of this order, the appellant appeared in court, and made his defence, shewing for cause, against such a summary proceeding, a general denial of all the facts stated in the petition of the plaintiffs and appellees: but the judge, not considering the cause shewn good and sufficient, granted an order of seizure from which the present appeal is taken.

East'n. District. March 1816.

It appears by the statement of facts that, on making this order, no evidence was offered by either of the parties to the suit, and that the court, in the absence of both, proceeded to the final decision of the cause.

Moreau for the plaintiffs; Porter & Depeyster for the defendant.

Under these circumstances of the case, we deem it unnecessary to go into any inquiry or investigation of the constitutionality or consistency of the police rules (above referred to) with the laws of the state.

On the citation to shew cause, the defendant having made a general denial of all the facts stated in the petition, we are of opinion that the claim of the plaintiff ought to have been established by legal evidence; and that the judge erred in deciding, without hearing the parties, and in not requiring such evidence.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be avoided annulled and reversed, and that the cause be remanded to be tried on the merits.