12 La. Ann. 13 | La. | 1857
In March, 1840, the plaintiff, Eleanor O. Waddell, authorized by her husband, mortgaged the slaves Anthony and Louisa (declaring them to be her lawful property) to the defendant Mills Juclson, to secure the sum of $500 then loaned her. The mortgage was by authentic act passed in New Orleans, where the plaintiffs then resided.
In December, 1848, the note given for this loan being long past due and the plaintiffs having left this State, Judson proceeded by attachment against Mrs. Waddell to foreclose the mortgage.' The slaves Anthony and Louisa were attached, and a personal citation was afterwards served upon J. P. Waddell, her husband, together with a copy of the petition filed in the fourth District Court of New Orleans.
Under this judgment, they were seized in execution, together with her interest in her mother’s succession, and, at the Sheriff’s sale, Judson became the purchaser of the property seized, and went into possession of both slaves in May, 1849.
In May, 1854, Mrs. Waddell, with the assistance of her husband, brought this suit against Judson for the said slaves or their value and hire since May, 1849.
She alleges that the slaves were hers by inheritance from her mother; that Judson got possession of them wrongfully, under color of certain judicial proceedings, meaning the attachment suit aforesaid; that' she was absent at the time of these proceedings, and never cited and made no appearance; that the proceeds of the note on which the attachment suit was based did not enure to her benefit, but to her husband’s; that her husband had paid usurious interest therefor, and that the Sheriff’s sale of the slaves, under the judgment, was void, because they were adjudicated for a bid not exceeding the anterior mortgages, because there was no appraisement, because “ other forms and requisites of law were not complied with,” and because Juclson slandered her title to the property at the time of the sale, and thereby depressed the price.
The defendant maintains that the judgment in the attachment suit is not now open to be questioned by the plaintiffs, and in this he is clearly right.
A personal citation addressed to Mrs. Waddell,-together with a copy of the petition, having been served upon her husband,.from whom she was not separated, she was thereby brought into court. O. P., 192.
Moreover, her property was attached, which of itself gave jurisdiction to the court. Her remedy, if aggrieved by the judgment, was either by an action of rescission or by appeal, both of which were barred by the lapse of two years from the 12th February, 1849, when the judgment was signed.
“ The absent debtor, against whom judgment has been so rendered, may, within two years after such judgment, obtain the reversal of the same, if he proves that the distance at which he lived from the place where the attachment was obtained, has prevented his being apprised of the proceedings had against him, and that the plaintiff has availed himself of his absence to obtain payment of a debt, either already paid in totality or partly discharged, or which did not exist.” C. P., 267.
“ A judgment may be reversed if it has been rendered on an attachment obtained against a person absent, and who had no knowledge of the action having been brought against him; if such person show that he was not indebted either for the whole, or for part of the sum for which the judgment was obtained and his property sold. But this action shall be prescribed after two years have elapsed from the date of the judgment.” C. P., 614.
“ No appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered, if the party claiming the same reside in the State, and after two years if he be absent therefrom.” O. P., 593.
The plaintiff, therefore, when she brought this action, was concluded by the judgment of the. Fourth District Court as to her original indebtedness to Judson.
But every specific allegation she makes of irregularities in the Sheriff’s sale, is unsustained by the-evidence. The price bid exceeded the amount of mortgages and privileges preferred to the judgment creditor; the Sheriff’s return recites that the property was duly appraised, a recital which no evidence was offered to rebut, as required by the rule in Hewitt v. Stephens, 6 An., 640. There is no proof whatever of a slander of her title on the part of Judson for the purpose of deterring competition in bidding; and the allegation of other informalities is too vague to require notice, the petition merely asserting, “nor were the other forms and requirements of the.law for Sheriff’s sales complied with.”
It is therefore ordered that the judgment of the District Court be affirmed with costs.
