This is an appeal from a judgment, on a rule, ordering the resale of a tract of land a la folle enchere, at the risk of the defendant, who was the adjudicatee, at a judicial partition sale of the property, but who failed to comply with her bid and accept title thereto.
The property is owned in indivision by the plaintiff and defendant. The former owns two-thirds and the latter one-third thereof. The defendant suspensively appealed to this court from a judgment ordering a partition of the property by licitation. The judgment appealed from was, in due course, affirmed; a rehearing was refused and a certified copy of this court's decree was forwarded to the civil district court, where it was indorsed, "Received July 23rd, 1928," and placed in the original record of the suit in that court. *Page 792
Appellant questions the validity of the partition sale and adjudication by the auctioneer, for the reason that the decree of this court was not filed in the civil district court and recorded in the judicial record of that court in the manner and as prescribed by law, and she relies upon the text of Code of Practice, arts. 617, 618, 619, 620, and section 475 of the Revised Statutes of 1870, all of which we here quote:
"Art. 617. The execution of judgments belongs to the courts by which the causes have been tried in the first instance, whether such judgments have been affirmed or reversed on appeal."
"Art. 618. Therefore the court of appeal, whether it affirm or reverse the judgment, or whether it has rendered another definitive judgment in the cause, must send the same to the inferior court, in order that it may be executed."
"Art. 619. This judgment cannot even be executed, until it has been recorded in the records of the inferior court which first had cognizance of the cause."
"Art. 620. This recording shall be directed to be made by the party wishing to make use of the judgment, but without any obligation on his part to give previous notice to the opposite party; and the clerks of the district courts shall have the power to receive, file and record, all mandates and decrees rendered by the Supreme Court, and to issue all legal process thereon."
"R.S. Sec. 475. In case of appeal, it shall be their duty [clerks of court] to record the pleadings and judgments as aforesaid, together with the judgment of the parish, district and appellate court, within six months from the filing of the judgment of the appellate court."
Appellant contends that the clerk of the civil district court could do nothing more *Page 793 than mark the decree "Received" until the plaintiff paid the filing fee and directed that the document be recorded in the judicial records, and until this is done the judgment could not be executed.
Appellant's defense is technical. It was relied upon in the case of Alfano v. Franek, 159 La. 498, 105 So. 598. In that case it was held to be without merit upon two grounds which are concisely stated in plaintiff's brief, from which we quote:
"First: That Articles 619 and 620 of the Code of Practice only apply to judgments which order something to be done by the lower court.
"Second: That in any event, the objection urged to the sale could not be set up after the sale had taken place; that it was the duty of appellants to take the necessary steps to prevent the sale; that they could not remain silent, permit the execution of the process to go forward, and then, after the sale, be heard to say that the execution and sale were premature."
Both of the reasons given in the foregoing opinion are sound and applicable to this case, but we prefer to base our opinion herein upon the ground that appellant could not remain silent and permit the execution of the process to go forward, when she could have taken the necessary steps to arrest it, and, after the sale, be heard to say that the execution and sale were premature.
In the Alfano-Franek Case, cited supra, Justice Thompson, the organ of the court, said:
"But there is another principle of law fatal to the appellant's present attack on the judicial sale, and that is this: A sale made under the execution of a writ or process prematurely issued cannot be annulled solely on that ground."
Mrs. Carbajal is a co-owner of the property *Page 794 involved. She was the appellant in the partition suit, and she was the adjudicatee of the property at the partition sale thereof. In all of the proceedings she was represented by exceptionally able counsel.
For these reasons we are not impressed with appellant's contention that she was not aware of the nonrecordation of the decree of this court until after the partition sale. In any event, the fact of the nonrecordation of the decree was as easily ascertainable from the original record of the suit in the court below, before the sale, as it was after the sale. Being a matter ascertainable from the record, appellant cannot now be heard to plead her own laches. We think the judgment appealed from is correct, and it is therefore affirmed, at appellant's cost.