No. 10,320 | La. | Mar 15, 1889
Lead Opinion
On Motion to'Dismiss.
The opinion of the Court was delivered by
The appellee contends that the appeal should be dismissed, because the judgment appealed from is unsigned and because the appellant has acquiesced in it.
I.-
This judgment is one dissolving an attachment under which defendant’s property was seized.
It appertains to the class of judgments or decrees, known as interlocutory, which are pronounced on preliminary matters, in the course of the proceedings and which do not decide on the merits. It doos not belong to the other class of judgments, technically termed definitive or final, wliich decide all the points in controversy, between the parties, which constitute res judicata and become executory, after signature. C. P. 538, 539.
The law requires that the judge shall sign all definitive or final judgments— C. P. 546; but it does not exact this formality as to interlocutory judgments.
In the case of Cary vs. Richardson, 35 Ann. 505, this court took pains to establish the poiiited differences which exist between 'interlocutory and final judgments. A reference to that decision, establishes, beyond dispute, ‘that this first ground is of no avail in the present instance.
There can bo no doubt that, if the appellants have acquiesced in the judgment appealed from, they can have no standing hero to question its correctness.
Appellee claims that, because, after the judgments dissolving the attachments had been rendered, “ plaintiffs have proceeded in the lower court, talcing defaults, forcing' an answer and pleading and trying pleas as against defendants and intervenors,” “in the ordinary manner, * * * they have aequiesced in the judgment of the lower court and abandoned the appeal.”
Surely, the persistance by legal proceedings, of plaintiffs to have their rights recognized and enforced for the payment of the sum claimed, can not serve as a foundation for a charge of acquiescence. It has not been shown and it cannot be conceived, how it can bo deduced from any of the acts stated, that the plaintiffis and appellants have admitted the correctness of the judgment, or have ratified it, so as to divest themselves of the right of having it reviewed on appeal. None of those acts could have authorized the sheriff to release the property attached. Had the plaintiffs done anything, from which it could have been inferred that they had sanctioned or acknowledged the propriety of the judgment and which, in itself, would have justified the sheriff in turning over the property seized, to the defendant, — quito a different question would have been presented. 40 Ann. 028. But such not being the case, the second ground of the motion to dismiss is likewise untenable.
The motion is denied.
Opinion on the Merits
On the Merits.
The defendant has set up different reasons to obtain the dissolution of the attachments issued in the case; but the plaintiffs, now, in their turn, charge that the defendant cannot be permitted to question the validity of the merits attacked, because, since the seizure was effected, the defendant, together with the intervenors or third opponents and the seizing creditors, have agreed that the property seized would be summarily sold by the sheriff and the proceeds retained by him, until final judgment, and that the defendant shall have the right to bond said property, on furnishing satisfactory security to the plaintiffs.
This agreement, voluntarily entered .into, was evidently designed to accomplish at least some of the purposes for which the attachment was obtained and issued, namely: The seizure and sale of the property of the defendant and the subjection of its proceeds to the judgment to be reudored in the ease. By entering into it, the defendant, to all appear
More than this, the parties litigant may be deemed as consenting to waive, all legal proceedings, otherwise necessary to realize the goods, as perishable and costly to keep and as substituting their will thereto, leaving otherwise matters and things in statu quo.
The consent was eminently conservative, one which the parties could give and did give, and one which lias operated beneficially to those concerned in the propertjc
Clearly, after entering into such an agreement, the defendant ceased to have any interest in procuring the dissolution of the attachment, for the plain reason that on the court dissolving tlio writ, the sheriff would have had no authority to release the property, as he unquestionably had a right to detain it and dispose of it, under the consent.
The dissolution could do defendant no good aud it has done him none.
The agreement was in evidence on the trial of the rule to dissolve and effectually debarred the defendant from questioning the validity of the process against him and his property.
It is, therefore, ordered and decreed that the judgment or decree appealed from he reversed, and it is now ordered and adjudged that the rule to dissolve tlio attachment heroin he discharged, at appellee’s costs in both courts.