Canal Bank v. Copeland

Carleton, J., delivered the opinion of the court. In May, 1833, the plaintiffs caused to be sold at public auction, a parcel of land, adjoining the village of Carrollton, containing seven hundred and seventy-seven acres, which were adjudicated to the defendant, the last and highest bidder, for twenty-six thousand dollars, payable in instal-ments for several successive years. The purchaser having, failed to comply with the terms of the sale, the plaintiffs instituted suit against him in the court for the first district, which, on the 18th March, 1834, rendered in their favor the following judgment: “ In this case, the jury having rendered a verdict for the plaintiffs without damages, and the court considering the said verdict is conformable to law, do order, adjudge and decree as follows : that Robert Copeland, the defendant, do pay the sum of two thousand six hundred and fifty dollars, with legal interest thereon, from the 17th December last, (1833) to the plaintiffs, in the proportions following, to wit; one half of said sum and interest to the New-Orleans Canal and Banking Company; the other half to the other plaintiffs in the following proportions, to wit : one moiety of said half to Samuel Kohn, one-tenth thereof to John Slidell, and four-tenths to Laurent Millaudon; and further, that said Copeland do execute his promissory note, satisfactorily endorsed, for the sum of two thousand six hundred and fifty dollars, payable on the 1st day of May, 1834, and three other promissory notes, for the sum of seven thousand and sixty-six dollars and sixty-six cents and two-thirds, each payable respectively, in two, three and four years, from the 1st May, 1833, without endorsement, but secured by special mortgage on the property sold ; and that the plaintiffs execute to him — 43 — ■a bill of sale, on the defendant depositing with the notary, Felix Grima, Esq., successor of G. R. Stringer, the sum of two thousand six hundred and fifty dollars, with interest, at the rate of five per cent, from the 17th December, 1833, up to the time of such tender, and also his promissory notes in the manner aforesaid, of the property adjudicated to him and mentioned in the petition, in the form of the one filed in the suit marked A, dated June 7th, 1833, and that the defendant pay the costs of this suit.” This judgment was affirmed by the Supreme Court, in the May term of the same year, on an appeal taken by the defendant, and on the first of November following, the plaintiffs exhibited it, annexed to their petition, praying for an order of seizure and sale, to the judge of the parish and city of New-Orleans, who, therefore, granted the following order; “ Let the within described property be seized and sold according to law, at the following terms, to wit: five thousand three hundred dollars for cash, with legal interest on two thousand six hundred and fifty dollars thereof, from 17th December, 1833, and on two thousand six hundred and fifty dollars, from the first of May, 1834, the balance payable in three equal instalments on the 1st of May, of the years 1835, 1836 and 1837, respectively, without endorsements, but ■secured by special mortgage,” etc. An ineffectual attempt having been made by the defendant, to set aside this order, on the ground that the property seized was out of the territorial limits of the parish of Orleans, he appealed, and in the June term of 1835, the Supreme Court reversed the judgment of the Parish Court, and set the order aside. 6 Louisiana Reports, page 584. 8 Ibid., 577. But as the appeal was not taken in time to stay execution, the sheriff, in the meanwhile, proceeded under the order, and sold the land at public sale on the 12th January, 1835, when it was bought by John McDonougb, as the last and highest bidder, for nineteen thousand two hundred and fifteen dollars and fifty-five cents. The purchaser, having •caused the usual monitions to issue in order to confirm his — 44 — title according to the provisions of the act of March, 1834, the defendant.-again appeared and made opposition to the homologation of the sale, which being overruled, he appealed, and thus the cause comes for the third time before this court. Various points have been raised in argument and ably discussed by. the counsel'on both sides. . But our attention has been mainly drawn to the first ground of opposition taken by the defendant, viz ; “ The Parish Court has no authority to grant an order of seizure and sale in this case, because the -District Court has already taken cognizance of the matter, and rendered judgment therein; because there was no act importing confession of judgment, and: because the court has no jurisdiction thereof. The objection taken when the cause came before us on the first appeal from the. Parish Court, was to the want of territorial jurisdiction in that court, the property seized, being, as was alleged, out of the limits of the parish. Now, the validity of the order itself is contested, and we are called •upon for the first time, to look into the sources of that power under which the parish judge acted in granting it. This question lies at the bottom of the controversy, and upon its rightful solution the fate of the cause must depend. It is contended that this power is derived from article 746 of the Code of Practice, which declares, that, “when a creditor has obtained against his debtor, a judgment, having the force of res judicata, in a tribunal different from that in which he seeks the execution, whether the judgment was rendered in this state or another state of the Union, or in a foreign country; he may, on this ground, proceed by execu-tory process, and cause to be seized and sold the property of his debtor, without previous citation, in the same manner as on privileged or mortgaged debts, contained in acts importing confession of judgment, except in the cases mentioned in the following article.” To avoid all incongruity, and give a reasonable interpretation to this law, we are bound to infer, that, by a tribunal, different from that in which execution is sought, was intended the courts of the parishes and districts, other than that in — 45 — which the judgment was rendered; as if it were rendered by a tribunal at Ouachita, the creditor might obtain executory process from the judge of the Parish of Orleans, if the debtor’s property were within his jurisdiction, or he might-keep the record in his possession, and obtain the order in any other parish of the state wherever he might be so- fortunate as to find the debtor’s property. This mode of procedure * * - * might afford greater facilities in the collection of debts, when the situation of the debtor’s property was unknown, than the writ of fieri facias, for the obtaining of which, recourse must . .. , , ° be had, in every instance, to the tribunal that pronounced the judgment. ' the execution of mdgment ron— dered by ñ trifrom\hatw1thln yhose jurisdiction the execution of it is resort (o the S cutory'process; cannot issue within the same party mustresort on'^Vis^udgment- , So, where a judgment was court ortheyfirst judicial district, and its execution sought, by t0pj_ “iin the Parish Court of New-Orleans: Held, Court wis^vith-out power to grant the order of seizure, as u Com^prasessed Precisely . *e tion, within the same territorial limits, This construction of article 746, we think, quite clear, when taken in connection with the second section of article 732, which provides that executory process may be resorted to “ when the creditor demands the execution of a judgment which has been rendered by a tribunal different from that within whose jurisdiction the execution is sought;” that is to say, the tribunal which renders the judgment, and that ... . , ' J a . . .. . which executes it, must be of different territorial jurisdiction, But the court of the parish of Orleans, and the court for the first district, are not of different, but of precisely the • , , , , , same jurisdiction, within the. parish of Orleans, where the lands were seized: both courts have,.moreover, the same jurisdiction, ratione materias, within that.parish, and could not, J ’ . ,'r ' . ■ therefore, under any view of the subject, be said to be different tribunals, with respect to the order of seizure and sale m question. And we, should come to the same result were we to test this construction of the code by that sound rule of interpretation laid down in article 18 of the Civil Code, which teaches us that “ the most universal and effectual way of ,. ,, . hi j • discovering the true meaning or a law when its expressions are dubious, is by considering the reasons and spirit of it, or the cause which induced the legislature to enact it.” The mind cannot, without difficulty, believe that the legislature intended to impart to a suitor in a cause, the right, capriciously to transfer a judgment from one court, to have — 46 — it executed in another, bolding its sessions in the same parish, in the same city, in contiguous apartments in the same edifice, and of precisely the same jurisdiction over the subject matter in controversy. It would be ascribing to' them, conduct without motives, and to charge them with causelessly obstructing the administration of justice, and diverting its streams from their fixed and appropriate channels. Again, the judgment of the District Court requires the defendant to pay a sum of money, to execute one note with an endorsement, and three others without, and all of them payable at different periods, from the 1st of May, 1833, and to be deposited at the notary’s office, when the plaintiffs are to make titles to the property seized and sold. Without inquiring whether the order of seizure and sale pursued strictly the letter of the judgment of the District Court on which it was based, the Parish Court seems to be charged with the money part of the decree, while a remnant of the judgment remains unsatisfied in the District Court. So that both tribunals are fairly seized of the same judgment at the same time. They may not act in concert in the strange position in which they find themselves. The District Court may, for aught that appears, proceed to execute its own judgment by fieri facias, or by distringas, while the Parish Court is accomplishing'the work with different results, and prescribing duties to the defendant, unlike those defined by the judgment of the District Court: and thus the decrees of courts, intended to settle and establish the rights of the parties, may themselves become sources of new and interminable strife. Furthermore, by article 746 of the Code of Practice, it is plain, that if the Parish Court had the power at all to grant the order, it could have been none other than an ordinary fieri facias; for the law declares, that the creditor, on -exhibiting his judgment, may “cause to be seized and sold, the property 'of his debtor, without previous citation, in the same manner as on privileged or mortgaged debts, contained in acts importing confession of judgment.” — 47 — A specific order on acts importing confession of judgment, is here used as correllative to the order of seizure on the-general property of the debtor : the first flows from the act.of the party; the second is the gift of the law, springing from a judgment obtained in the ordinary course of proceedings,, and cannot be limited to specific property, as was done by the parish judge. In whatever light, therefore, we consider the order, whether as specific instead of general, or as coming' from a judge whose territorial jurisdiction forbade the exercise of such a power, we equally conclude, that the order itself is a mere nullity, and all the proceedings arising therefrom, illegal, and without effect. Sublato fundamento-ruit opus. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be avoided and reversed that the opposition of the defendant to the homologation of the sale to John MflDonough be sustained ; that said sale be rescinded and set aside, and that the plaintiffs and appellees' pay costs in both courts.