Zimmerman v. Bartchy
Henry Zimmerman v. John Bartchy
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Summary
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Opinion of the Court
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Cole, J.
Bartchy, the defendant, having- obtained a judgment against the plaintiff in a Justice’s Court, in the parish of Jefferson, for $28 and costs, (in all thirty-two dollars), the Sheriff of Jefferson, under the judgment, seized a lot of ground with all the buildings and improvements thereon, belonging to plaintiff, being lot No. 17 of square No. 35, in Rickerville, in said parish, and adjudicated the same to the defendant in this suit, for one hundred dollars.
This suit is instituted to recover the property.
There was judgment for plaintiff, and defendant has appealed.
Several exceptions were filed by defendant; but as he went into trial on the merits without any decision upon them, it is unnecessary now to notice them.
The plea of prescription, based upon the 49th Article, paragraph 4, of the Code of Practice, 613th Article of same Code, and 1989th Article of the Civil Code, do not apply to an action like the present.
Articles 1144,1145 and 1146 of the Code of Practice provide the mode in which defendant ought to have proceeded for the satisfaction of his judgment.
As the principal, interest and costs of the judgment did not amount to fifty dollars, the Sheriff had no right to sell immovable property to satisfy it.
It is contended, that the defendant had a mortgage upon the property to secure his debt, upon which the judgment was rendered, and that immovable property can be sold to satisfy a mortgage of any amount whatever.
No mqrtgage is recognised in the judgment of the Justice of the Peace, and, besides, the defendant does not appear to have had any mortgage to secure his debt.
The sale by the Sheriff of the property in dispute, was without warrant of law, null and without effect.
The District Judge correctly reserved to the defendant all his rights resulting from the judgment in his favor before the Justice of the Peace.
Plaintiff has asked for an amendment of the judgment in Ms favor, so as to allow him damages, &c.
We are of opinion the judgment of the District Court has done justice between the parties.
Judgment affirmed, with costs of appeal.
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