Plaintiff, a judgment creditor of defendant, caused, under a writ of fieri facias, to be seized the movable property belonging to defendant in a certain house in the city of New Orleans, which was sold by the Sheriff.
Opponent, L. F. Foucher, de Circé, had leased this house to defendant. He caused this movable property to be seized under a writ of provisional seizure, and by motion made opposition and claimed the proceeds of the sale of the same, on the ground that he had a privilege as lessor on the property seized, which entitled him to be paid out of the proceeds in preference to plaintiff.
The Judge rendered judgment, decreeing that opponent be paid the proceeds of the property sold, the proceeds not being sufficient to satisfy his claim as lessor. Plaintiff appealed from this judgment.
Plaintiff in the lower Court excepted to the opposition, and asked that it be dismissed, because defendant had not been made a party to the opposition, and because no judgment had been obtained by opponent against defendant.
Defendant was made a party to the opposition, but had he not been made a party, the answer to the exception would have been, that the law authorizes this mode of proceeding against plaintiff and Sheriff, without requiring that opponent should first obtain judgment against defendant, and without requiring him to be made a party. See Code Practice, Art. 401; 14 An. 89.
I^Plaintiff further excepted to opponent’s opposition, because he was not a loyal citizen. It is not shown wherein he was disloyal.
It is not pretended that opponent had not a privilege on the movable property of defendant, which was in the house let, to secure the payment of his claim as lessor; but plaintiff contends that it is not proven that the property sold under his execution was the same on which plaintiff had a privilege.
It was proven that the movable property of defendant, which plaintiff caused to be seized and sold, was in the house let, and on this property opponent claimed his privilege.
It is decreed that the judgment of the District Court be affirmed, and that plaintiff pay the costs of this appeal.