New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-02-20

on. 1t il evident, therefore, that tn,
sheriff is not carrying out the orders of tina
oDult, which required him to proceed t. eel
property represented as being in his officia
possession at the time Of, and previous t,
the granting of the respite, but that he haI
acted under writs since issued, and concern
ing which the Superior Court gave no order
Tae plaintiff has really abandoned the frs
writs; those on which the Judgment of ths
court was predicated, and has proceeded t.
collect the judgments in Nos. 26, 1888 anC
s6, lSS of the docket of the Superior Court
by virtue of writs that were never acted OF
by it. The sheriff is therefore. not acting
under the orders Cf that court. l am re
ferred to act No. &c Of the session acts o.
1870. page ll9, entitled an act ito prevent
conflict Of jurisdiction between the severa
courts Of this State, and to punish the
| same" The Superior District Court had
| not then been created. 1t was born of the
act Of December IL, A. u. 1872, therefore
it can not be seriously pretended that it
derives any superiority to other district
| courts in the parish Of Orleans, from the pro
visions of the act of eleventh December, 1872.
Section one Of the act of 1870 reads as
| follows:
"3a it enacted, etc., That whenever a
suit or judicial proceeding is instituted in
any Of the courts Of the parish OF Orleans,
| in this State, where such court has juris-
Gic:iOo, all parties to such suit stall be con-
Gued exclusively to such court for the trial
Of all issues or matters that may arise in
the course Of such litigation. or out OF the
| ind gment rendered in such litig alton, and
| 40 ether Judge shall have jurisdiction to
| grant orders OF in junction or any other order
| by which the proceedings in sGch litigation
| Or judgment rendered therein, or the prop
! crty in litigation, or persons of the psrti' g
| in the litigation shall be stayed or in any
manner interfered with or interrupted; nor
shall any other judge grant any of the
above orders in favor OF any party not a
party to such lltig alton or judgment, claim
ing to have an laterts st therein, or to be
affected thereby; but that all such orders
s;iai, be granted by the judge before whom
the original suit Or judicial proceeding was
instituted; provided, that no provision of
tiiis section shall apply 10 the Supreme
Courr or the judges thereof
This act was never intended to apply to
this class of cases. Uader the article OF the
Civil Code article 1854 ct seq, a debtor
who is unable to satisfy his debts at the
moment is permitted to obtain from his
creditors delay Tor the payment Of his
dapts. 70 avail himself OF this right, he
can 20 into any Of the district courts not
having specially limited Jurisdictions.
There is no law requiring him to go into the
Superior District Court for that purpose.
II lie can so into other courts, then may
they g1aYt and enforce all such orders as
may be found necessary to carrying out all
the provisions Of the law relating To resp:te.
Tne fallacy OF counsel may he shown
thus: Mr.. Brown has over half dozen
creditors, all whOiu, in the absence of the
respite, may sus him in any of the courts Of
competent jurisdiction III this city. Now
Let us suppose that they had done 50, to
which OF them might he 80 tor respite
~ = krip r{
the application he seeks to make Of the
section already quoted OF the act of 1870, he
could not be heard by any one OF the courts,
because the Institution OF proceedings for
respite in any one of them. wolld be inter
ference with the jurisdiction OF the others
as to the coliec non Of the jud gments rem
dered by them Now il is very evident the
law Vas never intended to virtually annul
that relating to respite. do not think this
exists In tlll force and effect, and once
inv, ked in q competent court, protects the
GebtOr, under the order of the court unless
Ills debt DO privileged one, or one secured
''by special mortgage by public act The
selling creditor in this case has nothing but
a jCdical mortgage, whose effect is general
aud he is 'bound by the respite granted by
th's court on the thirty first of December,
lSl5,' IN the came manner as ordinary
creditors, c. c. 3095, last paragraph. The
Superior Court can give him no advantages
which any other district court of general ju-
risdictlon might not grant equally as we'll
But were l TO make an application Of the
act of 1870, the conclusion would not he
different. This court does not seek to en-
join any proceeding in that 1t has rendered
its Judgment, and If it were otherwise II Q
result would not be different. This is
the necessary conclusion frcm the phrase
oogy of the fifth paragraph OF article 1929,
G. G.. wherein it is declared that creditors
having privilege, or special mortgage, NAV
proceed to enforce tie same regardless of
the reeplte on tie property affected by
them. but, if such property do net prove
sufficient to satisfy their debt, they shall be
strained from acting for the surplus.
either against the person Of their debtor
or against those OF bis effects On which
they have no privilege except after the ex-
pration of the term granted by the respite" |
Nov, if this be the law, and if this court |
has authority to grant an order OF respite, |
by what authority can the Superior District |
or any other district court interrupt Its pro- |
Certainly it has no jurisdiction in |
ths matter OF respite pending in this court,
" hlch alone. under the act of 1870, may |
grant all orders necessary to the practical |
operation ard enforcement of the law re- |
sp.cting respites. I can no. understand |
how IN Interpretation OF the laws giving |
Jurisdiction to this court in matters proper |
II pending in it can be istly understood |
as IL any wey interfering with the urisdic-
ton of the Superior District Court. | must |
believe that if that court had understood |
at the tine it made the rule on the civil !
sheriff absolute, no seizure had been made
auder ite judgment, 1t Woula have done SO. |
Nor Will believe that it will 90 so far as |
TO conflict with the unqueFtionable jurisdic-
ton OF this court 10 enforce the collection |
# debts by Wrirs Of teri tacias which are
1ot privileged, nor are secured by special |
mortgage, regardless Of the order OF this
court granted before any seizure was made !
by careful review Of the facts it will per
1eiVe that the Selling creditor is proceeding
10 execute Judgments entitled to 10 prlvi-
ege not under the writs which it was in
.0Imod had been executed by actual seiz-
ares, but by writs that were not acted upon |
oy it, and which have been taken out since |
Is order of February 7. 1876. At all events
his court is satisfied it has the jurisdiction
rs TO the matter of respite, and recognizing
10 superior judicial authority, except that |
If the Supreme Court of Louisiana, must |
assert, and will vindicate, its own by max
ng the rule herein absolute
Sixth District Court
w. A. Glass va. Alexander Wheeler.
Judgment for $4603 s..
Henry Roger VS.. George Marz. ST., and
George Merz, Jr.-Verdict for $1,000.
Tho nIississiDDi Levers.