Folger v. Roos

The opinion of che Court was delivered by Bermudez, C. J. This is a petitory action by the widow and heirs of Antonio Palacio to be recognized as the owners of certain real estate and allowed the rents and revenues thereof from December 26, 1879, when, it is charged, the defendant took wrongful possession. The main defense is, that the property was acquired by the defendant at a judicial sale, made on that day, which divested Antonio Palacio and passed his title to the defendant. The plaintiff retorting, charges that the sale in question is a nullity, having been made in furtherance of an order for executory process, signed on September 4, 1879, by the judge of a district court, in New Orleans, during vacation, when, under the law, no such order could have been then validly granted. The District Court heard the evidence adduced by the litigants in support of their conflicting claims and dismissed the suit. Prom this judgment the plaintiff appeals. In order to establish that the decree for executory process could not have been signed during vacation and so is a nullify. The plaintiff relies on Act No. 86 of 1866 and on the rulings made in 21 Ann. 306 and in 23 Ann. 483. The act declares that the district courts of New Orleans shall be open from the first Monday of November to the fourth of July, ant shall remain open all the year for criminal and probate causes, for granting interlocutory orders and writs of arrest, habeas corpus, injunctions, sequestrations, attachments, mandamus and provisional seizures on motions to quash and not in their merits, and for proceedings to eject tenants. The rulings in the two cases relied on are to the effect that the signing of a judgment is a judicial act and cannot validly take place without the consent of parties out of term time — i. e., during vacation. [604] The judgments thus signed were judgments rendered after a contradictory trial. A decree for executory process is not a judgment in any sense of the word, within the meaning of the authorities cited, for it decides nothing, no more than an order for a conservatory writ of any description. It has been held to be a judgment only, so far that an appeal lies from it in a proper case. It is known to both the Spanish and French systems. See Escriche, Diccionario de legis lacion y jurisprudencia, pp. 770, 819, 899, 979, and Merlin vol. execution parée. In the case of Mitchell vs. Logan, 34 Ann. 998 (1003), we took pains to show that it lacks the elements of an ordinary judgment, saying substantially: It is not preceded by a citation; it is rendered on no issue; it adjudicates to plaintiff no right not secured by his notarial act; itcreates no judicial mortgage by registry; it authorizes no writ for the differences in case of deficiencies between the net proceeds of the sale of the mortgaged property and the amount of the debt. Numerous authorities were quoted in support of those views, one which is to the effect that an executory proceeding is not properly a suit, but merely the aid of judicial power to give force and effect to, what is equivalent to a judgment confessed. Rousseau vs. Bourgeois, 28 Ann. 186. It is therefore strictly no judgment. It is simply an ex parte order m rein, granted at chambers, without any previous hearing, or notice to the ostensible owner of the property, directed to be seized and sold, to satisfy the debt acknowledged in the authentic form, In the case of Russ vs. Faust, 15 Ann. 477, the court declared that the uniform practice is to issue executory process, or decrees rendered and signed at chambers. The learned, counsel for the plaintiffs concedes such to be the practice and the jurisprudence; but he distinguishes, saying, that the practice is legal when the decrees are rendered and signed at chambers, provided this is done in term time, and that such decrees cannot be thus made, out of term, during vacation, because of the provisions of the act of 1866, No. 86, which does not specify that such decrees may be granted between the day of the adjournment and that of the reopening of a New Orleans district court, and which enumerates what judicial proceedings may take place contradictorily during vacation. This is a fallacy resulting from a confusion of ideas touching the [605] purport of the act relied ou and from a too narrow conception of its meaning and object. The purpose in view was to enable litigants to try contradictorily with adverse parties, during vacation, motions to quash, on the face of the papers, and not on their merits and suits to eject tenants, which otherwise could not have been then entertained; but the act never was intended to abridge the rights of parties to any ex parte or interlocutory decrees to which they would have been entitled during term, time. Articles 63, C. P., has an immediate bearing on the subject. It provides that where the hypothecated property is in the hand of the debtor, and when the creditors, besides his hypothecary right, has against his debtor, a title importing a confession of judgment, he shall be entitled to have the hypothecated property seized immediately and sold for the payment of the debt, etc. The word immediately was not inserted in the law for a useless purpose. It means instantly, without delay, at any time, whether within or without term, and must receive its effect. The Code of Practice calls the fiat in cases of executory process an “ order of seizure.” C. P. 735. Ear from shutting out the defendant from adequate relief, when the claim or mortgage cannot be enforced, the law leaves to the debtor a door wide open to urge, after the order has been rendered, defenses which he might have pressed in ordinary cases,.only before judgment. This identical question of the' validity of an order for executory process made during vacation, was raised some sixteen years ago and was very summarily treated by the then Court. See Thompson vs. Storrs, No. 2545, unreported, and found in O. B. 42, fol. 81, decided December 16, 1872. In that case, the very authorities relied on (21 and 23 Ann.) were declared to be wholly inapplicable. The order attacked having been seasonably made, the objection to its validity falls. This conclusion is in perfect consonance with the spirit and letter-of the law and the practice and is eminently conservative. Construing the judgment of dismissal rendered below, as one rejecting plaintiffs’ demand. It is affirmed with costs.