Maclas v. Lorio

Tho opinion of the Court was delivered hy McEnery, J. The plaintiff sued the defendant sheriff and tho sureties on 1ns official bond for $10,000 damages, alleging in her petition that she was separate in property from her husband and was on her own [301] account pursuing, in tile town of Tliibodaux, tlie occupation of a merchant, and that the said sheriff illegally seized, while in her own possession, her stock of merchandise, destroyed her business and caused her great mental distress. The merchandise wa^ seized under a writ of attachment in the suit of Thompson vs. G-ourdain & Courcier, on the 18th day of June, 1888, and they were sold as perishable property, under an order of court, on the 21st of July ensuing. This suit was filed on the 5th day of July, 1888. Defendants excepted, alleging no cause of action, because the plaintiff failed to make an affidavit as to her ownership of the proiserty, in conformity to Act 37 of 1882, and that she was estopped because she was silent and made no opposition at the time of the seizure. The petition contains sufficient allegations for a suit upon which a judgment can he rendered for the plaintiff, if the allegations are true, that is, if Mrs. Macias was the real and bona Me owner of the property seized, and it was sold for a debt not due by her but to pay the debt of another party. It was not necessary for her to allege that she had made oath as to her ownership and had required the sheriff to execute an indemnity bond. Act No. 37 of 1882 was enacted to protect the sheriff against all damages in case a third person should be adjudged the owner. It does not exempt him from suit for an illegal and wrongful seizure of the property of a third person. To protect -himself he must demand from the plaintiff, after giving him or his attorney notice, an indemnity bond, but before the plaintiff is required to give the bond, the third party claiming the ownership of the property must make affidavit as to ownership. The sheriff, by following the text of tins law, is fully protected from pursuit of the plaintiff in disobeying his instructions if he fails to give the indemnity bond after the oath of thfc third party as to ownership, and forces the third party, if ho makes the seizure on his failure, after notice, to make the required oath. There was no notice given to Mrs. Macias, nor was she required to make oath as to her ownership. The property was seized as belonging to Gourdain & Courcier, by the directions of the attorneys of plaintiffs in the attachment proceedings of Thompson. Defendants .allege in their exception that Mrs. Macias is estopped from claiming damages because of her inaction and silence at the time of the seizure. She is not suing for the specific property seized and sold in the hands [302] of a purchaser. Her suit is for damages for the illegal seizure, and her silence can not give any right to the seizing creditor which he did not have at the time of the seizure. If it was her property, her silence, by itself, does not make it the property of Gourdain & Courtier. In the proof of ownership, her silence, at the time of seizure, may, however, be one of the circumstances going to prove this fact, and this part of the exception properly belongs to the merits. The sheriff, in making a seizure of property, must know that the property belongs to the defendant in execution, and the defendant is not bound, on being notified thereof, to give notice to the sheriff. Ho may sue at once for the illegal seizure by a separate suit, and is not compelled to intervene in the suit in which the seizure was made. 9 M. 024.; 4 R. 39, 136; 31 Ann. 74. Mrs. Macias sued -the sheriff very soon after the alleged wrongful seizure of her property. The judgment appealed from, sustaining the exception, is reversed, and it is ordered that the case be remanded to be proceeded with in due course, defendants to pay costs of appeal.