Whittemore v. Watts

Martin, J. This suit was commenced by a petition to the judge of the parish of Livingston for an injunction to restrain the sheriff from proceeding to the sale of certain property of the petitioner’s husband, in violation of her legal mortgage thereon. The injunction was granted. John Taylor and others, the plaintiffs in the execution enjoined, intervened in order to obtain a dissolution of the injunction; the defendant filed an exception, urging that as the plaintiffs in the ft. fa. were not parties to the proceedings instituted by the petitioner, he (defendant) was not bound to answer alone being without interest in the cause, having acted only as a ministerial officer. The exception was overruled, and judgment by default taken against the sheriff. [No judgment was pronounced upon the intervention.] The intervening parties have appealed. The appellee prays for the dismissal of the appeal on the following grounds : First. That the citation was served by the deputy sheriff, when it ought to have been by the Coroner. Code of practice, articles 771, 772. Second. That the judgment is not signed. Third. That the sheriff is not a party to the appeal, otherwise [48] than by his acceptance of service of the petition, and waiver of that of the citation. Fourth. That the bond is insufficient. Fifth. That the citation of appeal does not belong to the case. These grounds for dismissal might be cogent if the defendant were the appellee; but the intervening party is the appellant, and the plaintiff in the injunction, the appellee. There is, therefore, a better ground of dismissal than any of these. The exception, or intervention of the present appellant, has not been acted upon by the first judge. The appellant, therefore, is without a cause of complaint; besides, there is no final judgment against the defendant, who is not a party to the appeal, but only a judgment by default.' Appeal dismissed.