Mundy v. Phillips

• Decision Date: 01 December 1924
• Docket Number: 24871
• Citation: 157 La. 445,102 So. 519
• Court: Louisiana Supreme Court
• Parties: MUNDY v. PHILLIPS et al

102 So. 519

157 La. 445

MUNDY v. PHILLIPS et al

No. 24871

Supreme Court of Louisiana

December 1, 1924

Rehearing Denied January 5, 1925

Appeal from Twenty-First Judicial District Court, Parish of Pointe Coupee; William C. Carruth, Judge.

Action by Charles J. Mundy against Mumford Phillips and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Charles J. Mundy, of Thibodaux, in pro. per.

M. T Hewes, of New Roads, for appellee Phillips.

Albin Provosty and Bouanchaud & Kearney, all of New Roads, for appellee Lamartine Bouanchaud, Sheriff.

OPINION

THOMPSON, J.

The plaintiff sues his judgment creditor and the sheriff in solido for $ 24,108.63 damages for an alleged illegal seizure and sale of certain movable property. The amount claimed is the estimated value of the property sold, $ 4,108.63, and $ 20,000 for the "illegal taking and depriving petitioner of his said property in the manner shown in this petition."

It is alleged, substantially, that the sale was null for the reason that the execution was unwarranted, illegal, and premature, having been issued by the clerk of court at the instance of plaintiff in execution, and executed by the sheriff while the district court was divested of jurisdiction by reason of a suspensive appeal to the Supreme Court which had been perfected by the defendant furnishing a suspensive appeal bond as required by law.

A further ground of nullity of the said sale and cause for damage is that some of the property sold was exempt under the homestead law and some of said property was not exposed for sale at the courthouse or place of sale, which fact prevented the full value of the property being bid.

The defense interposed by both the seizing creditor and the sheriff is: A general denial of any liability in damages to the plaintiff; an affirmative allegation that the proceedings in execution and the said sale were valid and legal; that the plaintiff had abandoned his appeal and acquiesced in the proceedings and sale by being present at the sale and bidding on and purchasing a part of the property offered for sale under said execution. They plead the prescription of one and two years as an effective bar against plaintiff's right to recover.

After a trial was had on the merits, a judgment was rendered rejecting the plaintiff's demand, and he prosecutes this appeal.

The plaintiff leased from the defendant a plantation for a number of years, for which he executed his promissory notes payable annually. He also purchased from his lessor certain movable property consisting of corn, hay, agricultural and farm implements, and a few head of live stock or work animals. This property was purchased on a credit for which the lessee executed his notes secured by a chattel mortgage on the movables.

After the expiration of the first year of the lease, an agreement was entered into by which the unexpired term of the lease was canceled and the unmatured lease notes were surrendered. The lessee restored to the lessor the greater portion of the live stock and of the farming implements, receiving credit therefor on the chattel mortgage notes.

Thereafter the lessor brought suit on the rent notes that were due and unpaid at the time the lease was canceled and sued out a writ of provisional seizure. This suit went to judgment with recognition of the provisional seizure on the property seized on the leased premises. The amount of this judgment was $ 2,325.

The lessor also brought suit on the chattel mortgage notes, accompanying the suit with a writ of sequestration. This suit likewise went to judgment with recognition of the writ of sequestration. The amount of this judgment was $ 3,000.

The defendant Mundy obtained an order for both a devolutive and suspensive appeal from the first judgment rendered against him and perfected both appeals by giving the required bonds within the legal delays. The appeal was made returnable to the Supreme Court on or before January 29, 1917.

After the appeal bonds were filed, the judgment creditor filed a rule on the defendant and appellant to show cause why the bond should not be declared insufficient by reason of the alleged insolvency of the surety. This rule was never served on the appellant, nor was it ever tried. However, the court later permitted the surety on the appeal bond formally to withdraw as surety in open court. It does not appear that the defendant and appellant was present in court at the time this novel procedure was had, or that he had notice of such intended action on the part of the surety or the court.

Thereafter, a writ of fi. fa. was issued on the judgment appealed from by the clerk at the request of the plaintiff or his attorney, under which writ the sheriff seized and sold the property mentioned and described in the notice of seizure and advertisement. The issuance of the fi. fia., the seizure of the property, the notice of seizure and advertisement, all took place before the expiration of the return day of the appeal. The sale, however, was made after the return day had expired and long after the days of grace allowed an appellant to file the transcript.

No one, we imagine, will question the proposition, which is abundantly sustained by the authorities cited in plaintiff's brief, to the effect that the jurisdiction of the Supreme Court in cases of appeal attaches on the filing of the bond of appeal, and the inferior court thereafter has no authority to take any steps in such cases, except such as are necessary to transmit the record and to test the solvency of sufficiency of the sureties on the appeal bond.

It is conceded by counsel for appellee in this case that the action of the court in permitting the surety to withdraw from the appeal bond in the manner shown by the record was without authority and had not the effect of setting aside or avoiding the appeal. And we may go further and say that the issuance of the fi. fa. by the clerk was irregular and premature, but because of that fact it does not follow that such irregularity and prematurity cannot be waived or acquiesced in by the party against whom the execution is prematurely issued and a valid seizure and sale of his property made thereunder by the sheriff.

The plaintiff herein, appellant in the other suit, never followed up his appeal by filing the transcript in this court. He took no steps to obtain an extension of the return day from this court, nor did he in any manner attempt to coerce the clerk to deliver to him the transcript, as it was his duty to do in order to protect his legal rights and to preserve his appeal. By failing to file the transcript within the legal delay or to obtain an extension of the return day, the appellant abandoned his appeal. This rule of law is inexorable.

"'The appeal shall be considered as abandoned if the appellant does not file the transcript within the legal delays. ' Ducournau v. Levistones, 4 La.Ann. 30. The question is no longer a new one. It was referred to in the case of Sterling v. Sterling's Heirs ." State v. Louisiana Debenture Co., 52 La.Ann. 551, 27 So. 87.

The judgment creditor in cases where a suspensive appeal has been perfected and the appellant has failed to file the transcript in the appellate court has two modes of procedure open to him. If he prefers to have execution on his judgment, he...