Zuntz v. Cornen

Ogden, J.

(Slidell, 0. J., absent.)

This appeal is taken by the defendants from an order made by the court below, dismissing the oppositions of the defendants to an order of seizure and sale which the plaintiff had obtained.

The order of seizure and sale was granted on an act of mortgage executed by the defendants in favor of Maunsel White, to secure the payment of three promissory notes executed by the defendants for $10,766 each. The notes are the first and second notes of the defendants, payable to their own order, and Mrs. M. Moussier, being a married woman, was authorized by her husband to sign them.

The opposition of Mrs. Moussier sets forth that she was a married woman, and, that her notes were not therefore binding on her. She does not allege that the notes were given for a debt of her husband, but denies that she ever received any consideration therefor. The opposition was not sworn to and no injunction was prayed for. The other defendant took a rule on the plaintiff to show cause why the order of seizure and sale should not be set aside, on the ground that the defendants were entitled to certain credits, which could only be finally determined in an ordinary action. The Judge of the court below dismissed the oppositions of both defendants, on the ground that the only mode of arresting an order of seizure and sale, pointed out by law, was by an injunction.

The appellants’ counsel argues that the appeal is taken from the order of seizure and sale, as well as from the order dismissing the oppositions, and contends that, on the face of the petition of the plaintiff, it appears that the order of seizure and sale could not have legally issued against Mrs. Moussier, who was a married woman.

The defendants have not filed an assignment of errors as required by the Code of Practice, when the case comes up without any bill of exceptions or certificate of the Clerk that the transcript contains all the evidence. No motion having been made to dismiss the appeal on that ground, we have considered the ease as if the appeal had been taken directly from the order of seizure and sale, and we are of opinion that the averments in the petition and the act of mortgage, and of subrogation by Maunsel White, of the plaintiff to his rights under the mortgage, was sufficient to authorize the order of seizure and sale against Mrs. Moussier. The incapacity of married women to contract is not absolute. Helling v. West, 2 An. 1. Mr. Moussier was authorized by her husband to enter into the contract, as appears on the face of the notes. It does not appear on the face of the proceedings, that the obligation she entered into was null and void, and no legal defence is suggested in the opposition which, without being- sworn to, ought not to have been received. Code of Practice, Art. 788.

Plaintiff, by a supplemental petition, allowed certain credits, and it is not alleged by either of the defendants, that there are any other credits to which they are justly entitled. If there were such, the defendants should have filed an opposition under oath, setting forth the payments which had been made, and praying for an injunction in conformity with Art. 739 of the Code of Practice.

The court below did not err in dismissing the oppositions, and the judgment is therefore affirmed, with costs.