Deville v. Hayes

Ludelmg, C. J. These consolidated cases are injunction suits to arrest the execution of the judgment of Cecile Jannis v. Durel Dupré. There was judgment perpetuating the injunctions, and the defendants have appealed. The judgment debtor bases his injunction on the following grounds : First — He never was called upon to point out property. Second — The sheriff made no seizure of any property, having never taken possession of the property. Third — The notice of seizure does not correctly describe the property. I.The deputy sheriff testifies that lie. called upon tiie debtor to point ■out property, and that defendant in execution refused and failed to do so. He therefore lost the right given to him to point out property. C. P. 646, 649. II.If it he true that the property was not seized, because not taken into the possession of the sheriff, the debtor lias no cause of complaint, and no grounds to invoke the aid of the courts. 9 Rob. 182. III.The inaccuracies in the description of the property were not '■■•such as could have deceived the defendant. He knew what property was intended to be designated, and he could not have been in any manner injured by the slight inaccuracies of the description. 19 La. 301 j 2 La. 63. The injunction sued out by Durel Dupré should have been dissolved. ' In addition to the above alleged grounds for an injunction, the wife, Marie I. Deville, claimed to be the owner of the property seized. The «evidence shows that in the suit between herself and her husband, the ■seizing creditor intervened and opposed her claim, and that after hearing, the property claimed by her in that suit was adjudged to belong [551] †-o her. The property thus decreed to belong to her was the plantation and improvements thereon, the stock of cattle and horses (in the possession of the husband), marked with the brands E. O., L. ° D. and E. H. And it is proved that on the twelfth July, 1869, a elation enpaiement was made to the wife of the other property, which is advertised lor sale, except the buggy, in satisfaction of the money judgment obtained by her against her husband. The judgment was pleaded as res judicata. We think the plea correctly made. Whether the Ration en paiement conveyed to the wife the other property claimed, depends upon the fact whether or not, at the time, a lawful seizure of the property had been made, for if a legal seizure existed at the time of the giving in payment, the acquired rights of the seizing creditor could not have been affected by it. The evidence of the deputy sheriff leaves no doubt in our minds that he did not seize the Creole horses and mules, and other personal property advertised, because he did not take possession of them. 6 R. 348; Gobean v. New Orleans and Nashville Railroad Company; 7 Rob. 504; 9 Rob. 182; 2 An. 338, 785, 910. It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed; that the injunction sued out by Durel Dupré be dissolved with costs; that the injunction of Marie Irma Deville be perpetuated as to all the property seized except the buggy, and that the appellees pay costs of this appeal.