The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-12-31

clUeu ~ pages 70 en0 "a. Inc prOcooUn8 n
brought after that form Of proceeding n
such cases had been prohibited by the Stako
Legislature. The Supreme Court Of Tenn0s-
see refused the writ; and the Supreme Court
Of the United States, on q writ Of error.
BY the Code Of Practice, article TAG, final
judgments rendered In other States or foreign
countries might be enforced summarily by
executory process, just 40 mortgages may be-
enforced now without previous citation Of the l
debtor. The Legislature chose by act Of 1sl6,
page 166, to repeal this provision OF the law.
Several cases In which this form had been re-
sorted to were pending, some on appeal at thO{
date Of the passage Of the act Of 1916. Thia{
court held In every case that this change pend
ing the proceedings even on appeal, deprived
The repeal CT the former law did not divest
vested rights nor did 1t deprive the iudgmsnt1
creditors Of adequate remedy. 1t prohibited
the summary process allowed BY the former
OF suit by petition and citations. See Scott
ys. Duke, Ann. 253; Kilgore vs. Planterg
Bank same volume SOB; Commercial Ban16|
ys. Workhouse, same COS; Featherstock vs.
| Compton, s Ann. 1856.
The law to-day authorizes the mortgagee to-
have the mortgaged property seized and sold
| by executory process summartly without
previous citation Of the mOrtgager. Th05
remedy Is expeditions, and no doubt the right3
to enforce mortgages sumrnarily makes that
form OF security more desirable, more valu-z
able.
The Legislature may repeal this law at any
form Of proceeding by petition, citation, judg3
ment and execution. Could any mortgages
pretend that this would be unlawful interfer@;
eDce with his vested rights or that the obllgn<
tion Of his contract would be thereby Inn
paired.
In Strauss vs.. Brown, 30 An. 70, creditors
creditor sought to enforce his demand again1t4
the city OF New Orleans by mandamus to-
fr,f
q warrant for the amount. We held that act
/ No. OF 1870, extra session, prohiblted&
the remedy resorted to; that 1t compelled
the creditors Of thu, city 70 proceed In the or
JUDGMENT. that It might be registered in tho
Office Of the Administrator OF Public Ac-8
counts, and paid out OF the next annual bud-8
get, as required by the act.
We also decided In that case that the act Ol /
1870 does not deprive the creditors OF the city
Of adequate remedy; that is such remedy as
creditors In general have against their debt
ors by suit In the ordinary form. Having eb-&
tanned Judgment he must proceed to have tt*
paid In the manner required by the act md Y
not otherwise. The right OF relator (Stral1eeE
accrued In 1876, under the dominion OF the act
Of 1870, and we did not find it necessary to-
express any opinion as to the effect Of the
act with respect to pre-existing contracts sn6
obligations. fH
In the Carondelet Canal Company VS.
Mayor and Administrators, the relator e x&
obtained judgment against the city In the
binary form, and had caused 1t TO be red &@
tered In the Office OF the Administrations %
Public Accounts. The Mayor and Admisf$
traitors had failed to provide for the paymm4
In the next annual budget after the re9isty]
as required by the act We held that the
duty OF the Mayor and Administrators vas
plain, and the right OF relator absolute; md
that there was no means or process by which
this right could be enforced, otherwise than
by mandamus. We accordingly made the
mandamus peremptory, requiring the Mayor.
and Administrators to provide for the pay
ment fths judgment out al the next annual
budget. 30 An, 1919. I
The present case differs from that OF Strauss
vs. Brown, In that the right OF relator accrued
long before the passage Of the act OF 1870; andA
1t differs from the Carondelet canal case, In
that relator has not obtained judgment against.
the city, nor attempted to enforce itgrights IN
the mode prescribed by that act. We Think
this act pertains entirely to the remedy; that
1t is within the constitutional power Of thu
Legislature, and that 1t is obligatory alike on
creditors OF the city, whether their rights ac%
crued prior to 1870 or subsequently.
II the seventh section OF the act No. 81 OF
1876 admits OF no other Interpretation than
that 1t deprives any class OF creditors OF the
city OF New Orleans Of the right to enforcd
their demands by judicial process, we think IL
would be In excess OF legislative power and i
void. But II 1t is susceptible OF the construct
ton that 1t forblds creditors, bondholders ands
others, to proceed directly by mandamus tOi
compel the levy and collection OF a tax to pay
the amounts due tnen, and requires all eucn
creditors to proceed under the act No. 5 Of
1870, we think 1t would not be yiolative Of any
legal or constitutional right
i III the seventh section OF the act should be
held to be violative OF the constitution, It
would not thence follow that the entire act IL
unconstitutional. We do not find 1t necessary
to pass upon this act, because the views which,
we have already expressed suffice to dispose
OF this case; and we prefer to reserve any ex-
preston OF opinion as to the validity OF the
act, in whole or in part, until the question:
shall be presented to US in such shape, and1
between such parties, as will give us juris-
diction. Without reference to this act, the
relator Is not entitled to the relief which he
seeks; and that Is the only matter to be de-.
termined on this appeal I'd
1t Is therefore ordered, adjudged and de-
creed that the Judgment appealed from be-
annulled, avoided and reversed, and that the
demand OF relator be rejected and dismissed,
with costs In both courts.
/ Mr.. Justice DeBlanc read concurring opin-
/ iofi Ia this case, and Chief Justice Manning
dissented for the reasons assigned in his writ
ten opinion.
HOTEL ARRIVALS.