Tompkins v. Stroud

Bullard J., .delivered the opinion of the court. The plaintiff and appellee obtained an injunction to stay proceedings on a writ of fieri facias, issued against him, on a [275] judgment and twelve months’ bond, in favor of the appellant, on the ground, that the plaintiff never had ten days notice of seizure, nor two days notice, nor indeed any legal and sufficient notice thereof. The sheriff is not bound to give any notice ^ure^under6» writ of fieri fa. «“«• Notice given on the day days afterwards, the. sheriff may advertise the for The answer denies that the petition sets forth any cause of action, and l he defendant prays for the dissolution of the injunction, with damages against the plaintiff and his surety in the bond. The injunction was however maintained, and the defendant appealed. The statement of facts shows, that on the 20th of May, the writ was executed, by levying on a tract of land and improvements, and on the same day, a written notice of the seizure was given to the plaintiff, and the petition sets forth that on the 24th it was advertised for sale. It is clear that the sheriff is not bound to give any notice previously to seizure under a writ of fieri facias. The Code is explicit on this point. It directs the sheriff as soon as he . -II- ... , , , has received the writ, to execute it without any delay, by seizing the property of the debtor; Code of Practice, 643. But the petition is obscure; it leaves it doubtful whether the plaintiff meant to complain of a want or previous notice, or of the notice required by article 654 of the Code of Practice, subsequent to the seizure. If the latter was intended, the evidence shows that such notice of the seizure was given on the same day. It is true the notice is without, date, but it is shown to have been served on the same day upon which the levy was made. This we think was sufficient, and the court erred in maintaining the injunction. It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, that the injunction be dissolved, and that the defendant recover of the plaintiff F. Y. Tompkins, as damages, twenty per cent, on the amount of the judgment of Stroud against him, with costs in both courts; reserving to the appellent his right of action upon •the injunction bond against the surety.