Carrere v. Aucoin

• Citation: 47 So. 598,122 La. 258
• Decision Date: 04 November 1908
• Docket Number: 17,102
• Court: Supreme Court of Louisiana
• Parties: CARRERE v. AUCOIN

47 So. 598

122 La. 258

CARRERE v. AUCOIN

No. 17,102

Supreme Court of Louisiana

November 4, 1908

Rehearing Denied November 30, 1908.

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by Ernest A. Carrere against Alic A. Aucoin. Judgment dismissing the action, and Aucoin appeals. Reversed and remanded.

Lyle Saxon and Henry George Stewart, for appellant.

James Clark Henriques, for appellee.

Miller Dufour & Dufour and Dinkelspiel, Hart & Davey, amici curiae.

OPINION

LAND J.

This suit is an action to annul a judicial sale made under executory process in the above-entitled proceeding, and should have been entitled "Alic A. Aucoin v. Ernest A. Carrere."

The sole ground of alleged nullity is that the three days' preliminary notice provided by article 735 of the Code of Practice in case of orders of seizure and sale was served on Alic A. Aucoin in the parish of Lafourche, and not in the parish of Orleans, where he resided, where the property was situated, and where the suit was instituted.

The suit to annul was dismissed on an exception of no cause of action, and Aucoin has appealed.

Conceding that the notice should have been served in the parish of Orleans, the question is whether this defect furnishes good ground for annulling the judicial sale.

No citation is required in executory proceedings to foreclose a mortgage. Article 734, Code of Practice. A preliminary three days' notice suffices. Article 735, Code of Practice. This notice should be served by the sheriff of the parish of the debtor's domicile, whether the proceeding be instituted in such parish or in the parish of the situs of the property. Article 736, Code of Practice. In this case notice was served by the sheriff of the parish in which the debtor happened to be found. Such officer had no legal authority to serve the notice, and the service had no more legal efficacy than one made by an individual or by mail.

The Code of Practice does not provide what officer shall issue the three days' notice; but it has been held that the clerk of the court should issue the notice, and that it should be served by the sheriff. Nash v. Johnson, 9 Rob. (La.) 8. In that case the court said:

"The notice is something like a notice of judgment, and the delay accorded to the debtor, before the issuing of the writ, is to enable the party to apply to the judge for an appeal, or to adopt some other mode of redress, in case the proceedings are irregular or unlawful. It is possible that notice would be good, if signed by the sheriff, after an order or writ of seizure was in his hands; but until he gets such writ he has no authority to act, and can only serve the notice given him by the clerk."

In Birch v. Bates, 22 La.Ann. 198, a sale under executory process was annulled because the notice was served after the seizure. The court said:

"Where recourse is had to this summary mode of enforcing the payment of obligations, it has been frequently held that the plaintiff should be strictly required to comply with all the legal formalities under the pain of nullity. Dufour v. Camfranc, 11 Mart. (O.S.) 609, 13 Am. Dec. 360; McDonough v. Gravier's Curator, 9 La. 542; Arcenaux v. His Creditors, 6 La. 6; Code Prac. Art. 735."

See, also, Billgery v. Ferguson, 30 La.Ann. 84; Hart & Hebert v. Pike Bros., 29 La.Ann. 262.

On the other hand, it has been held that the issuance of the notice by the sheriff, and not the clerk, is not good cause to annul the sale. In Jouet v. Mortimer, 29 La.Ann. 206, this doctrine seems to...