New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-04-10
ABANDONED PROPERTY.
Judge Woods on the Right to RecOv


Judge Woods on the Right to Recover.
The following decision was rendered by
Judge Woods recently on very important
question:
United States Circuit Court, District Of
LOuisiana-Samuel s. Kim bali VS.. Charlotte
IL. Taylor Woods, j., delivered the follow
ing opinion:
This is a petitOry action to recover pos
session of and establish a title to certain
real estate IN the city OF New Orleans.
Both parties claim title under one Moses
Greenwood. Plaintiff introduced an au-
thentic act of sale from Greenwood to him.
dated the fifteenth of December, 1870. and
it is shown that in 1859, and for several
years thereafter. Greenwood was in posses
sion, and that defendant is now in posses
sion.
The defendant offers in evidence a record
of the Sixth District Court of the parish of
Orleans. in. the case of Eliza Chapin VS..
Moses Greenwood, showing a Judgment in
favor of Mrs. Chaplin against Greenwood of
the date of February I, 1868, for $1,000,
with eight per cent interest; a tieri tacias'
issued thereon, dated December 10. 1861.
and levied on the property in dispute in
this case, and a sale thereof by the Civil
Sheriff of the Parish Of Orleans, by virtue
of said writ on the twentieth day of Feb
ludTN, lcOJ- 10 Spencer iciI
The defendant also introduces deeds from
Field to Mrs Marsden and from Mrs. Mars
Glen to herself, the latter dated November
H. 1867. The defendant. besides claiming
title, pleads the prescription of five years.
1t is conceded that if the proceedings in
the Sixth District Court Tor the parish of
Orleans, as shown by the record. were et
tectual to divest the title of Greenwood,
the defendant ought to prevail otherwise
the finding and Judgment of the court
should be for the plaintiff unless the plea
of prescription should be found a bar to
plaintiff s recovery.
| will proceed to notice the objections
made TO the record Of the Sixth District
Court of New Orleans, in connection with
the evidence offered in support Of them.
1t is shown in proof that during the time
of the proceedings i'll that court, that mar
tial law had been declared by the COM
mandIng general, and was in torce-general
order OF Major General Bntler, OF May 8.
1862 The point is therefore made that
there could be no civil court while martial
law was in force.
Martial law is not inconsistent with the
administration of justice between the citi-
zens in the civil courts. When'such courts
are authorized by the military power, they
may exercise their functions and their
judgments and DEGREES are binding on the
parties. The evidence in this case shows
that notwithstanding the declaration of
martial law, the civil courts of the city
of New Orleans were allowed to transact
business General Order No Al of Major
General Butler, of the date of June 10,
1862, prescribes an oath to be taken by
Judges. justices, sheritfs, attorneys and
nOtaries, or other persons who hold any
office which calls for doing any legal or Judi
cial act. The clear inference from this
order is that officers having taken the
nafh
their duties, and the public history of this
city shows that from the surrender of the
city down to the close Of the war the civil
courts were in the exercise of their flnc-
tons. Among these was the Sixth District |
Court. | think, therefore. that it was a
competent court to hear and determine |
This view is sustained bv the decision of |
the Supreme Court of the United States. in
the GrapeshOt, Wall 100, in which Mr.. |
Chief Justice Chase remarks: 1T became |
the duty of the national government when |
ever the insurgent power was overthrown |
and the territory which had been dominated |
by it was occupied by the national forces. |
30 provide, as far as possible, SO long as the !
war continued, Tor tie security Of persons |
and property, and for the administration Of
Justice
1t is next objected TO the validity Of the |
record that the citation was defective, and. |
therefore. the court acquired 30 jurisdc- !
ton. The citation is entitled OF the State
of Louisiana and OF the Sixth District |
Court of New Orleans 1t is addressed to
Moses Greenwood. the defendant bears
title of the judge of the court. IS signed by
the clerk, and, together with copy OF the
petition on which it was issued, was served
personally on the defendant, as appears by
the return of the Sheriff. The defects in
the citation are alleged to be an absence OF
the seal Of the court, and that the citation
Is not III the name of the State. sihe name !
of the State does appear in the title Of the |
citation, but it is claimed that the style |
should be, The State Of louisa to Moses |
Greenwood"
This is so inconsiderate a departure FROM |
what is claimed To be the law as not to be |
worthy OF serious attention. But III b NJ !
worth IS Seinpeyrac, Martin, 720 it Wiz ;
held that the clause in the constitution |
which requires the style of process to be
!'the State Of Louisiana does not apply to
citat u-s.
In lard to the Omission OF the seal to
the citation in the copy Of the record pre-
scented to us, a sufficient answer is found in
the case of Medley VS.. Noria Annual. Ii
III Which the Supreme Court OF this state
held that the omission OF a seal in the copy
OF citation in record OF appeal will not
be considered rs establishing that the eta
lior was issued without seal, it being the
common practice of the clerks not to copy
Che seal in making q copy OF the citation
The court says: AS the party has not
thought proper to produce in evidence the
citation served upon him. neither this court
nor the court Luiow. has been enabled to
Judge if the defect existed. and i'll the all
sence of such proof we will presume tie
clerk did his duty But If it had been
atiirnatvey shown to the satisfaction of
this court that the citation was without
such, this objection to the citation could
not stand, the record showing personal
service. In Hollingsworth VS.. Barbour,
Peters AT. the Supreme Court says. |
There is al obyi"as distinction between !