Cousin v. St. Tammany Bank & Trust Co
| Citation | 83 So. 685,146 La. 393 |
| Decision Date | 03 March 1919 |
| Docket Number | 23000 |
| Parties | COUSIN v. ST. TAMMANY BANK & TRUST CO |
| Court | Supreme Court of Louisiana |
On Rehearing, December 1, 1919; Rehearing Denied February 2 1920
Appeal from Twenty-Sixth Judicial District Court, Parish of St Tammany; Prentiss B. Carter, Judge.
Action by Mrs. Eugenia Cousin against the St. Tammany Bank & Trust Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
Hiddleston Kenner, of New Orleans, for appellant.
Lewis L. Morgan and J. Monroe Simmons, both of Covington, for appellee.
O'NIELL J. PROVOSTY, J.
O'NIELL, J.
Plaintiff appeals from a judgment dissolving a writ of injunction and rejecting her demand to prevent the sale of property seized in executory proceedings on a mortgage note for $ 1,740. The executory proceedings were brought against her husband. She claims that the property seized is her separate property, not the property of her husband nor of the marital community. But the property itself is not in contest, except in so far as the defendant bank is attempting to subject it to the payment of the mortgage note. The only matter in dispute, therefore, is the validity of the mortgage held by the defendant bank, the amount of which does not exceed $ 2,000. This court has jurisdiction in such cases only when the amount in dispute exceeds $ 2,000, exclusive of interest. Const. art. 85.
The doctrine of the decisions cited in Lhote & Co. v. Church Extention Society, 115 La. 487, 39 So. 502, to the effect that when a third person, claiming the property seized, attempts to prevent execution of the judgment, the issue is as to the ownership of the property seized, and its value is the test of jurisdiction, has no application to this case; because the only contest here is between the St Tammany Bank on the one side and Mr. and Mrs. Cousin on the other side. He agrees in her contention that the property belongs to her alone, and he testified accordingly. She did not obtain or ask for the authorization of the judge to prosecute the suit, nor did she allege that there was or would be a contest or conflict of interest between her and her husband. The only matter in dispute between the bank on the one side and Mr. and Mrs. Cousin on the other side of this contest is the validity of the mortgage for $ 1,740. Whether the property seized belongs to Mr. Cousin or to Mrs. Cousin is a question which they do not dispute, and with which...
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