Blessey v. Kearny

Howell, J. Appellees move to dismiss this appeal on two grounds: First — Want of citation. The judgment was signed in April and the appeal granted, on motion, in May. The appellees say the terms of the district courts of the parish of Orleans are monthly, and citations of appeal are, therefore, necessary in cases like this, and they cite the ease of Cuddey v. Belle-ville Iron Works Company, 4 An. 584, to sustain them. Since that decision, this point has been reviewed by this court and a different conclusion adopted. Bethancourt v. Stephens, 19 An. 291, Fisk v. Gibbs, Bright & Co., opinion book 38, page 264. Second — The transcript does not contain all the evidence adduced on the trial. Certain documents are mentioned as omitted from the record. Prom the certificate of the clerk, wo infer that the omission is not attributable to the fault of the appellants, and as the appellees waive the objection rather than have the cause remanded, we will overrule the motion to dismiss on the merits. The plaintiff in the suit of Edward Kearny v. Kearny, Blois & Co., under afi. fa., seized and sold the whole stock in trade of Kearny & Bernos, successors to the first named firm. The several plaintiffs herein having obtained judgments against both firms, levied executions upon the proceeds of said sale in the hands of the sheriff, and instituted these suits (consolidated) to injoin the sheriff from paying the said proceeds to the plaintiff, Edward Kearny, and have their judgments satisfied therewith, on the grounds that the judgment in favor of said Edward Kearny was confessed by Alfred Kearny, a member of said firms, without the knowledge or consent of his copartners and with the fraudulent purpose of giving to said Edward Kearny, his brother, an illegal preference over other creditors; that the debt on which said judgment was founded, had long since been paid and extinguished by legal imputation, and that if it he a valid judgment against Kearny, Blois & Co., the seizure and sale thereunder of the property of Kearny & Bernos, a different firm, was illegal. [290] Several grounds of defense are urged, one of which appears to us to be sufficient, to wit: the plaintiffs can. not allege the nullity of the judgment and at the same time 'claim the proceeds of the sale made under it. This has long been the settled jurisprudence of this State. See 2 An. 684; 3 An. 454; 21 An. 263, 500; 22 An. 136. There is in principle no difference, in the application of this doctrine, between sales of immovable and movable property. Judgments affirmed.