M'Donough v. Copeland

Martin, J., delivered the opinion of the court. The plaintiff, in order to be quieted in the title to a piece of property purchased at a sale under an execution against [310] tbe defendant, obtained from the clerk of the court a general citátion or monition, which he caused to be published in the newspapers, under provisions of the act of 1834, “for the assu- ' ranee and protection of titles to purchasers at judicial sales.” A dismissal or wiiTnot be' allowed to cases1"1 innt'Sneb the parties areal-ternately plaintiffs and.defend-ram Sand in the case of a recon-vention. Neither party to a suit is at berty to diseon-tinue or dismiss is nofexciusivcly his own, and avert a judgment which his oppo-to obtain.a U§M So, where a a'monitSn1,^™-1834 Üfor the assurance of titles •cial sales, and filed to fhe homo-logation of the in1'the monition tinue'or di'smis¡ his suit. The defendant thinking the sale had not been regularly conducted, and being desirous of availing himself of the speedy mode of relief, as provided for in the same act, relating to the perfection of titles acquired under such sales, filed an opposition to the homologation of the sale, and concluded with a prayer that it might be declared null and void. The plaintiff opposed the setting down the case for trial, on the ground that the proceedings of the defendant were premature. His opposition was overruled, and he took a bill exceptions. He afterwads moved the court, and obtained leave to dismiss or discontinue his action, The defendant took an appeal from the decision of the court, allowing the dismissal or discontinuance of the case, as being illegal. ° , . , It is true, as a general principle, that the plaintiff may discontinue his suit on payment of costs. But this prin-cipje cannot, be extended to cases in which the parties are L , 1 alternately plaintiffs and defendants, as in a concurso, and the case of a reconvention. Neither party is there at . , . 1 . liberty to dismiss, or discontinue a suit or action, which is not exclusively his own, with a view to avert a judgment in the case, which his opponent has a right to obtain. 7 rr ° The legislature having seen fit to provide a speedy mode, by which purchasers at sheriffs’ sale might test the validity of their titles acquired thereby, has subjected them to the equally speedy resort of the victims of forced alienations. Pontiff, therefore, who seeks this summary relief, comes into court with an ill grace to send back his adversary to the tardy march of ordinary litigation. "Ph® Parish Court, in our opinion, erred in allowing the dismissal or discontinuance of the case. The conclusion at which this court has arrived on this part of tlie cause, renders it necessary that we should examine the plaintiff’s bill of exceptions. [311] His counsel has contended that the issuing and publication of the general citation, or monition, does not amount to the inception of a suit, but are merely preparatory steps in a proceeding required by law, before the plaintiff could cite his adversary, or come into court to ask for the homologation of the sale. The parish judge was clearly right in disregarding these objections. The act contemplates no special citation to the debtor, whose property has been sold. He must come into court within the delay fixed by the act, otherwise the homo-logation of the sale will take place as a matter of course, on the mere motion of the purchaser. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, the cause reinstated and remanded for further proceedings according to law, the appellee paying the costs of the appeal.