Daboval v. Escurix

Martin, J., delivered the opinion of the court. In this case, the plaintiff appealed from a decision and judgment of. the district judge, quashing a writ of capias ad satisfaciendum, on which he had caused the defendant to be arrested and imprisoned. The facts of this case are stated in a judgment lately pronounced between the'parties, on a claim of tiie present [99] defendant, against the present plaintiff, for damages, on the ground that the arrest and imprisonment, under the ca. sa., was illegal. See 7 Louisiana Reports, 575. The grounds on which the defendant sought to have the writ of ca sa. quashed and set aside, are as follows : 1. The return of the writ of fieri facias by the sheriff which the plaintiff first sued out, showed that property of the defendant, sufficient to satisfy the debt and judgment, had been seized and sold. 2. The application of the defendant’s wife, to have tliG proceeds of the sale paid over to her, and the injunction by which they were provisionally stayed in the hands of the sheriff, did not authorise the plaintiff to sue out an alias fieri facias. 3. If an alias fieri facias could issue at all, it was illegally issued in this case, by directing it to the sheriff of another parish than that in which the defendant had his domicil. 4. The-return on the alias fieri facias did not authorise a ca. sa.' to issue, because it was made before the return day thereof; and because it did not state that the sheriff had called on either party to point out property. The counsel for the plaintiff on the other hand, contends : 1. That the seizure and sale of sufficient property, under the first execution, did not prevent his resorting to an alias, as nothing short of payment is a satisfaction of the judgment. 2. That there is nothing which prevents the issuing of a writ of fieri facias to another parish than that in which the defendant in execution has his domicil. If it was otherwise, a defendant by a change of domicil, or the removal of his property out of the parish, would protect it from execution and defeat the just claims of his creditors. 3. The sheriff is frequently unable to call on either party, to point out property to levy on ; and there is no law which compels him to go out of his'parish. As in the present case, it sometimes happens that neither of the parties is to be found, and nothing compels him to state this circumstance in his return. Where a fieri facias issues on a judgment, and and'seiisdiepropertyofthedebt- or under it: I[dd, that the sale and money* by the sheriff, discharges the judginent, even when steye™0?^ his hands by injunction obtained on the claim of another seizure and sale property^eb*°the expe^'th^mo1 ney, or emhezto^pay it*ovei^to jídgmentwijíbe .discharged, and another seizure .cannot he made, 4. There is no law which requires a sheriff to forbeat retumjng a wrjt 0f facias, when he is satisfied that the defendant has no property within his parish. This court is of opinion the judge of the inferior court' did not err in quashing the ca. sa. We are not ready to say that 7 . , . • */y» mi i» ■» ' , . nothing but payment to the plaintiff, will discharge his judgment. But we think that an actual sale and the receipt 0f the money by the sheriff does satisfy the judgment on . J J J ° which the execution issues. 1 his seems clearly the result suc’h cases > for if the sheriff should waste and expend the money, or embezzle' it and fail to pay it over, we are of , . r , opinion, this circumstance would not authorise a new seizure or arrest of the original debtor. jq js unnecessary that we should examine or inquire into , . , ‘ 1 the consequences resulting from the success of the wife of ¿efendant, in sustaining her injunction. Until her pretensions, as set out in the injunction suit, are first acted on, it is evident that the money in the sheriff’s hands, £ b‘om the sale of the defendant’s property, must be considered as belonging to the plaintiff in execution. Before a decision is had in the injunction case, nothing authorises a new seizure. Consequently, the alias fieri facias improperly issued, as did the capias ad satisfaciendum on its return of 77 , nuila bona. The view and conclusion which the court has taken, and arrived at on the first point in this cause, renders it unnecessary to give an opinion on, or notice any of the remaining points. it is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.