Lewis v. Labauve

Merrick, O. J. We think the judgment of this court, heretofore pronounced [383] in this case, ought to be set aside, and that there should be a judgment for the plaintiff maintaining his injunction. Article 3366 of the Civil Code provides : “ That the third possessor, who is not personally liable to the debt, may, notwithstanding', within ten days of Ms being served with an order of seizure, oppose the sale of the property,” etc. The delay here spoken of, connected with the service of the order of seizure, seems to us as much a rule of proceeding as does the delay for filing an answer to the petition and citation in an ordinary case, the delay for filing an opposition to an account or tableau of distribution ; to the meetings of creditors ; the delay for filing cross interrogatories and answers to rules ; in fine, any of the delays spoken of in the Code of Practice. Indeed, in the Code of Practice the subject of the seizure of the property is treated of at large. Article 3365, 0. C., which immediately precedes the Article in question, is reenacted in Art. 70 of the Code of Practice. That portion of Article 3366, which treats of discussion, is re-enacted (except as to the delay in which it is to be filed) in Articles 71 and 72, 0. P. Then again the Articles 738, 739 and 749, of the Code of Practice, recognize the right of the defendant, in the executory process, to obtain an injunction to prevent the sale, and no delay is fixed (except the sale) within which such injunction shall be issued. The whole object, therefore, of Art. 3366 seems to have been reconsidered and revised in the Code of Practice. The difference between this and an ordinary prescription consists in the fact, that the prescription is a mode by which debts are barred because no suit has been instituted for the recovery thereof within a period fixed by law. In this case, it is the service which fixes the delay within which the opposition may be filed. It is a rule of proceeding, because it prescribes the delay within which an opposition, which has the nature of an answer, may be filed in a legal proceeding. Then if it is a legal proceeding, this part of Art. 3366 has been repealed by the 25th section of the Act of 25th March, 1828, which provides: “ That all rules of proceeding which existed in this State before the promulgation of the Code of Practice, except those relative to juries, recusation of judges and other officers, and of witnesses, and the competency of the latter, bo and are hereby abrogated ; and that all the civil laws which were in force before the promulgation of the Civil Code, lately promulgated, be and are hereby abrogated, except so much of title tenth of the old Civil Code as is embraced in its third chapter, which treats of the dissolution of communities or corporations.” The rules of proceeding contained in the Civil Code, in regard to the hypothecary action, after its commencement, are, we therefore conclude, expressly repealed. But conceding that Article 3366 of the Civil Code is still in force, it has been repeatedly held by this court, that where the law gives a delay within which a thing may be done, the right to do the thing exists so long as no act of the court, or the opposite party has intervened to conclude that right. See 3 An. 196. Thus the defendant has two judicial days within which to file his answer after a judgment by default has been taken against him ; nevertheless he may file his answer and have the default set aside at any time before a trial on the tacit issue arising out of the judgment by default. 12 L. R. 7, Lallande v. Terrell. The law requires the opposition to be filed within ten days after the publication of the filing of the tableau of distribution, yet it has always been hold that it might be filed as a matter of right at any time (at least) before the case is set down for trial, and so of other instances. As the penalty of nullity is not pronounced by Article 3366, if the party does not file his opposition within ten days, we do not [384] think that a sound construction of it would require this court to hold that the owner of an estate has forfeited the same to the person setting up an unfounded hypothecary action, if his opposition to such hypothecary action has not been filed within ten days mentioned in the Article. Again, Article 3366 of the Civil Code provides for the delay within which an opposition is to be filed. This suit was commenced by another proceeding, the injunction, and as the Code of Practice treats of these two proceedings, injunction and third oppositions, under distinct heads, we should have no hesitation, did I believe Article 3366 in force, in distinquishing between an injunction and opposition, in order to prevent the evils which will flow from an opposite construction. The case of Berlin v. Lane, 4 N. S. 611, relied on and quoted so much at length, was decided before the great repealing Act of 1828 was passed. The judge of the lower court erred in receiving the parol testimony of the Sheriff to show that any other terms of sale were announced to the purchasers than those contained in the advertisement and proces verbal of the sale. It is too late to move this court to remand the cause in order to allow the Sheriff to amend the proces verbal of the sale, when no eifort was made in the lower court to procure such amendment, and particularly when the proces verbal of the sale corresponds with the advertisements. The sale having been made, on the petition of the administrator, on a credit of twelve months, for the purpose of paying debts, it was not necessary that it should bring the appraisement, and it cannot be treated as a nullity in this form of action. The probate sale had the effect of extinguishing the mortgage given by the deceased upon the property, and the mortgage creditor must look to the proceeds in the hands of the administrator. It is ordered, adjudged and decreed by the court, that the judgment of this court, pronounced on the 28th day of July, 1855, be set aside, and that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the injunction sued out in this case be made perpetual, and the said mortgage to said Marlcham, claimed by said Labauve, is declared extinguished as to said tract of land, and it is further ordered that the defendant pay the costs of both courts, without prejudice to any right he may have upon the proceeds of said sale.