Avart v. King , 14 La. 62 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The sheriff of the parish of Jefferson took a rule upon the plaintiff, to show cause, why she should not pay him the bill of costs due him, the said sheriff, in this suit, and the costs incurred in keeping fifty-four head of cattle and horses taken possession of by him, by virtue of an order of the court; his bill of costs and expenses was annexed to the rule. The rule was duly served upon the plaintiff, but she did not appear upon the day of the return, and failed to show cause. The court, on her default, made the rule absolute, and ordered the amount of the sheriff’s account to be paid to him. The plaintiff appealed.

The clerk, in certifying the record, states, that the transcript contains all the documents filed in regard to the rule, and that no testimony was adduced by either partythe appellant contends, that there is no evidence in the record to show the length of time durihg which the cattle and horses were kept by the sheriff, or the probable expense of keeping them, and that without such evidence the judgment cannot be maintained.

Under the peculiar circumstances of this case, that proof was not requisite, unless the judge required it. The law provides, that the fees for keeping personal property and slaves, taken under legal process, shall be at the discretion of the court.

If the judge had sufficient knowledge of the facts upon which the exercise of his discretion was asked, no evidence was necessary. If the allowance was unreasonable, the plaintiff has no one to blame but herself. She might, by answering the’rule, have contested the claim, and introduced any evidence which she might have had against it.

This mode of proceeding is frequently resorted to in the country parishes, where seizures of live stock are often made, and its legality has never been contested there to our knowledge.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.