Elwyn v. Jackson

Bullard, J., delivered the opinion of the court. The presiding judge of the City Court having issued an order of seizure and sale, against a lot situated in the parish of Jefferson, the owner and mortgagor obtained an injunclion to stay proceedings, on the following grounds : TheCityCourt °fJhhou?autho-rityto grant oi-ders of seizure and sale, espe-property1*™ *be seized is out of the city limits, But the juris-cuy0ncourt 'of New - Orleans t0 actions of a tions in perso-nam, except in eases of aitaeh-^thority bex-pressiy given. toryaetíonlsoné °f a real nature, whether the pro-perfymortgaged of the mortgagor orinthepossesSion of a third person. 1. Because the demand of payment before seizure had not been made, as required by law. 2. Because the court has no jurisdiction such as has been exercised in the premises ; and, 3. Because the sale is advertised improperly; that the writ should not call for a sale of more than enough to cover the amount due. The view we have taken of this case renders it unnecessary to consider the first and third grounds. We shall confine our attention to the question of jurisdiction of the City Court. The statute creating the City Court, (see 1 Moreau’s Digest, 345) declares, that each of the associate judges shall severally and individually have jurisdiction and power to hear and determine all civil causes, “except those of areal nature,” arising within or where the defendant resides, within the limits described in the second section, &c. The fifth section defines the jurisdiction of the presiding judge of the City Court. He has power to decide in similar cases, but to a higher amount, “to hear any civil cause which is grounded upon bills of exchange, promissory notes or other moneyed ,,. ,, „ , . . , , obligations,” &c. It is true this section does not expressly exclude real actions from the cognizance of the presiding judge ; but we think the whole statute must be taken J ..... , . . together. The presiding judge and the four associate judges constitute together the “City Court of New-Orleans.” The presiding judge has jurisdiction to a large amount, it is true, but essentially in the same class of cases, to wit: actions in personam, except in cases of attachment, the power to issue, which writ is expressly given by another section. That the ..... . presiding judge was competent to pronounce against the defendant upon his note, which evidenced the principal obligation, we do not doubt, but then it must have been according to the peculiar practice of that court, as established by the 11th section of the act. The process issued in this case was . iii* i •! an order of seizure and sale, and the object to be seized was beyond the territorial limits of the city. “An hypothecary action, fsays the Code of Practice, article 61) is a real action, . , ' . , , , which the creditor brings against the properly which has been [414] hypothecated to him by the debtor,” &c. Whether the property mortgaged be still in the hands of the mortgagor, or in the possession of third persons, the action is equally a a real one. The appellee relies upon the case of Marigny vs. Hunt, (3 Martin, N. S., 652,) to show that the judge of (he place within whose jurisdiction the defendant, in an hypothecary action, resides, has authority to grant an order of seizure and sale. That we do not doubt; and by article 163, of the Code of Practice, the plaintiff may commence proceedings either in the parish in which the property is situated, or that in which the defendant resides. But then it must be a competent judge, one of general jurisdiction; and it by no means follows that the presiding judge of the City Court has a right to direct an order of seizure and sale, obtained ex parte, to the sheriff of the parish of Jefferson. We have also been referred to the act of 1838, amendatory of the several acts to organize and regulate the practice of the City Court. The third section, it is true, authorizes the presiding judge to decide upon the rescission of a sale of real estate, or slaves, when claimed by way of reconvention in a suit upon a note given for the price ; but that act cannot be construed to give the power contended for in this case. Acts of 1838, page 56. We conclude that the court erred in dissolving the injunction. It is, therefore, ordered and decreed, that the judgment of the City Court be avoided and reversed ; that the injunction be reinstated and made perpetual, and that the appellees pay the costs in both courts.