Marot v. Ferriere

Howelb, J. The plaintiff complains of that portion of the judgment rendered herein, which dissolves the injunction restraining the sale by the sheriff of property seized at the suit of two of her husband’s creditors, and reserves her rights upon the proceeds thereof. The wife cannot arrest the sale of the husband’s property, seized in 666 execution, on the mere ground of preference over the seizing creditor (5 R. 496, 498; 10 R. 28; 2 A. 762); but the plaintiff fears that her rights maybe prejudiced by the clause of the judgment which reserves her right of action to be paid out of the proceeds of the property in question, as it may debar her from pursuing her rights in another mode. However this may be, we think it was unnecessary, under the pleadings, to make any such express reservation. On this branch of the case, the only question was, whether or not she could stop the sale for the causes alleged, which, being solved in the negativo, it was sufficient to dissolve the injunction as required by law, leaving the plaintiff to pursue whatever rights she might have, according to law. In this respect, the judgment should be amended in her behalf. It is therefore ordered, that the judgment appealed from be amended, by striking out, without prejudice, that portion which reserves plaintiff’s right of action to be paid out of the proceeds of the property seized in this case, after the property should have been sold; and that, as thus amended, it be affirmed; the appellees to pay costs of appeal, and the appellant those of the lower Court.