Naughton v. Dinkgrave

Ludeling, C. J.,

dissenting. This is an injunction to prohibit the sheriff from proceeding with the execution of two writs of seizure and sale obtained by Henry Burns against Thomas Naughton.

The ground of injunction is substantially that the note for the debt secured by the mortgage is in favor of J. Prank Pargoud, and it is indorsed by him in blank, sous seing privé, and not by authentic act, *542and that the order of the judge under which the writs were issued was» unauthorized by law and null and void.

A motion was filed to dissolve the injunction, for four reasons :

First — Because the affidavit is defective.

Second — Because the bond is defective.

Third — Because of lis pendens, an appeal from the order having been taken to this court.

Fourth — Because the only ground for injunction alleged is, that the evidence on which the orders of seizure and sale were granted is-insufficient, “which can not be ground for injunction, but is a matter-on which to base an appeal, and tile plaintiff has taken a devolutiveappeal before suing out this injunction.”

The first two grounds in the motion are not good, if, notwithstanding the defective bond and affidavit, it appears that the plaintiff would be entitled to a new injunction.

The plea of lis pendens is also unfounded. C. P. 335. In order that the plea should be good, it should appear that the suit is between the same parties for the same object, growiug out of the same cause of action, and before another court of concurrent jurisdiction. If it be-true, as contended for by the defendant, that the suit in this court involves the same issues and between the same parties as those in this case, it would seem to be an additional reason to authorize the injunction.

In Johnston v. Hickey this court said: “In this case the plaintiff' obtained an injunction against an order of seizure and sale, which was about to issue against his property at the instance of the defendant. The petition for the injunction has reference to a suit pending between these parties in relation to part of the same contract on which the-order of seizure is claimed in the present case, and reference is made to the answer in that suit to ascertain some of the facts relied on to obtain the injunction in the present, etc. * * * For the purpose-

of deciding on a motion to dissolve an injunction, the facts alleged in the petition on which it is obtained are taken as true, but afterwards may be controverted in an answer on the merits, if such motion does-not prevail. We are of opinion that the facts in the present case ought to have been considered by the court below as sufficient to sustain the injunction until the cause could be heard and determined on its merits.” 4 La. 285. In that case it had been urged that “ no-injunction can issue to restrain executory process, unless for one of the reasons assigned in C. P., Arts. 738, 739.” But this court thought otherwise then.

And this brings me to the consideration of the last, and, as it seems, the chief reason for refusing the injunction, to wit: that having taken a devolutive appeal from the order of seizure, the want of authentic evidence to authorize the fiat is no ground for an injunction.

*543It has been argued that the question presented by the allegations of the petition for injunction is, whether or not the insufficiency of evidence to authorize a judgment can be made a cause for an injunction.

In my judgment that is not the question. The question is one of' power or authority in the judge to act at all. The judge has no-authority to grant an order for executory process on any other than authentic evidence. 7 M. 239, Day v. Fristoe; 1 An. 323; 4 An. 152;. 5 An. 124, Yates v. Phipps; 10 M. 223; 3 N. S. 315; 7 N. S. 515; 12 R. 238; 2 An. 491; 1 R. 407. If, therefore, he act without authority, his. act is a nullity, from which no civil effects or rights can arise. “ When the creditor is in possession of such an act, he may proceed against the debtor or his heirs, by causing the property subject to the privilege or mortgage to be seized and sold on a simple petition, and without previous citation of the debtor,” etc. C. P. 734.

The decree ordering a seizure and sale is so far a judgment that an appeal will lie from it; but itds not a judgment in the true legal sense-of the term, and possesses none of its features. It issues without citation; it decides on no issue; nor does it adjudicate to the party obtaining it any right in addition to those secured in his notarial act.

16 La. 254; 3 An. 253. If the judge had inadvertently granted an order of seizure and sale on an act under private signature, or a judgment in chambers on an ordinary confession of judgment, I imagine no one would affirm that such an order or judgment was not an utter nullity. In my judgment the case at bar is not materially different.

The rule that an injunction will not be granted to arrest a fi. fa. for-causes existing anterior to the judgment does not apply to orders of seizure and sale, and this has been recognized by this court in numerous cases. In Chambliss v. Atchison, 2 An., an order of seizure and \ sale was injomed, and a motion was made to dissolve the injunction.. This court said: “Among the specific grounds relied on in argument by the counsel for Atchison, in support of the judgment appealed from, so far as it perpetuates the injunction, the following are deemed material :

“First — Chambliss could not legally obtain an order of seizure on the outstanding notes of Niebert, the stipulation of the defendant to pay those notes only conferring upon him an equitable action to enforce payment.

“Second — The power ot attorney to Lacoste, which is one of the documents on which the order of seizure issued, is a private statute. Act 8.

“Third — The certificates and affidavit of the justice to prove demand from the original debtor are private acts, not under seal as required by the statute of Mississippi.

“Fourth — The copies of the statutes of Mississippi, adduced to shew *544the capacity of justices of the peace to act as notaries and to prove the rate of interest on the notes, are not authentic in the meaning of Arts. '.732 and 733 of the Code of Practicó.

“Fifth — The identity of the notes is not shown. They were not paraphed by the notary. The mortgage to Niebert describes those ■that were given as drawn in favor of Bass, and his name is not on those which the plaintiff has produced.”

The facts assumed in these grounds are apparent on the face of the record, and force upon us the conclusion that the order was granted ■upon evidence not authentic.

It is contended that none of those grounds but the first were set forth in the petition praying for the injunction, and that the others ■can not be noticed here. The authorities relied upon in support of that position do not, in our opinion, establish it. “When executory process is prayed for on an act said to import a confession of judgment, the judge must examine and decide whether the instrument unites all the requisites of the law necessary to authorize this summary proceeding; so far it is a judgment, and an appeal lies from it, as from all •■other orders of court that might work an irreparable injury.” And ■the court perpetuated the injunction. 2 An. 491; 3 An. 150; 10 R. 70.

■Did the fact that Naughton had taken a devolutive appeal deprive him of the right to injoin the sale attempted to be made under’ an illegal order? I am aware of no law which would deprive him of this right, and I can imagine no good reason for it. It is said he might ■have suspended the effect of the order by taking a suspensive appeal. ■Supposing he could not take a suspensive appeal, for the want of a security willing to sign such a bond — an hypothesis by no means' .improbable — is this court to deprive him of another remedy afforded him by law to protect his property from an illegal seizure and sale? I think not.

But the law gave him the right to take a suspensive or devolutive appeal. He chose the latter — no doubt believing that it was enough ■to call the attention of the parties to the fatal defect in their proceedings to stop it. But the defendant chose to try to enforce his illegal order, noth withstanding the appeal, and I am at a loss to imagine why the plaintiff should not be permitted to avert the wrong attempted to •be inflicted upon him by iujoining the illegal writs.

This court decided recently on the appeal taken from the order of seizure, under which the writs injoined in this case issued, that the order oi seizure and sale was wrongfully issued; that the ground of plaintiff’s injunction was good, and yet he is mulct in twenty per •cent, damages for seeking to avert a wrong — for trying to prevent trespass upon his property.

For the foregoing reasons I dissent from the opinion of the court..