The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-04
SUPREME COURT DECISIONS.
TUESDAY, April 8, 1877.

Present: Ali the Justieer.
BY JUSTICE SPENCER.
No. 655i-Board of liquidators Of Hart u He,
BERT appellants, vs. Pike, Brother So-sppeai
FROM the District Court. parish OF East Baton
Rouge. On application for rshesring
We hold in this case that the notice 70 the
debtor prescribed by articles 735 and 756 OF the
Code of Practice should be issued and signed by
the clerk. We have carefully rs'onu =. 'hs'
opinion and fnd that we must adhere TO ~. .
The order or decree Of ths judge making the
order sxecutory 10 so far Q judgment that II may
be appealed from, and may be enforced ny exc
cution q,toad the mortgaged property: IL IL .
Judgment, too, rendered eg pdrte and without
the previous citasi n of the debtor. and 1t would
be strange omission in the law IL no notice OF
this judgment were required 10 pc given the
debtor before it's execution. We hnd that, ~
art, GA, q. p when the debtor has been cited and
hes made default, Judgment confirmed agsinst
him, Ia ap appealabie case, cannot be exeoa.eo
until notice OF judgment has been given h1m.
The Code of Practice in this case does not say py
whom this notice shall be issued and served; yee
we apprehend that no one will dispute hat the
clerk OF court is the pr oper officer TO lssue IL.
Why? Simply because, being the only legal GUS
todisn OF the records, he is the only person who
can certify what that judgmen. is: 90 in the
dian OF the record. OF the judgment, and ez ne
cessitate is the proper officer to issue the notice
Of 1t. The clerk issues the notice and the Sherih
serves IL.
OF Louisiana. On the contrary, 1t plainly flows
from both the text and epirit OF she Code, ana
has been held to be the true doctrine by this
court in number Of cases.
Ia Nash VI. Johnson, Il. IL, this cours said:
u
These views. 20 strongly expressed by our
predecessors. meet our entire appreciation, and
give we think, the true Interpretation OF
our law. We do not share the apprehension
Of defendants counsel as to the disastrous
effects Of this doctrine in unsettling titles In dis
d icts where different practice has prevailed
We have lately held that where the nouce WAS
signed and served by the sheriff, he having the
writ in his hands at the time, 1t was not suob an
irregularity as would vitiate the sale In The case
above quoted 20 r., 12) IT is said: III IS Possthe
that the notice would bs good il signed by the
sheriff. aft r an order or writ Oh seizure was 10
his hands; but until he gels such writ he hss no
authority to act and can only servo the notice
given him by the clerk"
we therefore conclude that tho proper mode il
for the clerk to Issue the notice and the sheriff
to serve il; and that its non-obseryancs IL good
grouud for Injunction. The Te-hearing asked for
Is refused.
On opposition of Mrs. Alice McCIoskey, appellant.
Appeal from the Second District Court, parish OF
Orleans.
A disposition in marriage contract by which
one Of the future spouses donates TO the other
certain rum in the event Of the donee surviving
the donor, ia donation inter uioos, taking effect
at the death of the donor; the donee Ia not
lepatee but q creditor OF the estate, aud as such
entitled to be- paid by preference to tbs legatees,
aud with legal interest from the death OF the
donor. Judgment amended 30 as to sustain ap-
peliant's opposition and reject or reduce sundry
claims.
No. 649l-Thomas Ong, appellant W.. the
Sheriff OF the parish of st. Handicapped
from the District Court, parish OF st, Bernard.
Judgment amended 30 ~ TO allow ten per cent
damages.
No. 65s6-Wm. Alling, appellant, W, II. b.
Lanier, tax collector Appeal from the District
Court, parish Of Carroll.
Plaintiff epjoiaed tho sale by the tax collector
OF his plantation seized on two tax bills, one OF
s9S 10 and the other Of s43 Is, alleging the value
Of the property seized TO be more than $500. The
District Judge sustained the exception to his iu-
risdiction, and dissolved the Injunction with 100
per cent damages.
The Court says: "The District Judge did not
err in sustaining the plea to the jsrsdiction.
But where q court declines jurisdiction it would
seen the only judgment that can DO rendered is
ono Diminishing the suit ct plaintiffs costs. The
District Court had no jurisdiction, this court hss
none, and though We think the decree inhictipg
the 100 per cent damages, ia void, having no ju-
rsdic.ion we cannot grant relief. Appeal dis
missed.
No. 651s-succession Of D. O. Byerly Appeal
from the Second District Court, parish OF Or
leans. Judgment anisnded.
e~N