Decuir v. Lejeune , 15 La. Ann. 216 ( 1860 )

Merrick, C. J.

In April, 1858, a judgment was pronounced on the main action in the above entitled case, adverse to the pretensions of the plaintiff. She moved for an appeal on the 2áth, and perfected the same by giving bond on the 28th of April, 1858.

Afterwards, on the 9th of June, 1858, on the ex parte motion of the counsel for the Sheriff, it was ordered that execution issue against the plaintiff for $1088 Sheriff’s costs.

Although we observe some unusual charges in the cost bill, we suppose it was intended to be charged in conformity to the statute, except the item of $1,000 for placing a keeper on the plantation, and slaves sequestered for one hundred days. This was made the subject of proof before the District Judge at the time he made the order.

So soon as notice of the execution issued, the plaintiff appealed.

She contends that the execution for costs must, under sections six and seven of the Act of 1855, (Phillip’s Dig. p. 124,) be preceded by a detailed bill of costs, and that a rule must be notified to the party of whom the costs are claimed, in every case.

Without expressing an opinion upon the first point, we think the last objection well taken in this case. The District Court had been vested of jurisdiction over the principal action, by the appeal. The parties were not before that court from term to term, as previously, and bound to take notice of the proceedings in the cause. Hence, when it became necessary to fix the compensation to be allowed the Sheriff for placing a keeper over the property, the proceeding was no longer a motion in a cause pending before the court, but was an independant proceeding of which the party sought to be charged, was entitled to notice, in order that she might also be heard and introduce her proof, especially upon those items which were subject to the discretion of the court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, ordering said execution to issue against the plaintiff for costs, be avoided and reversed, and that there be judgment in iavor of the said Mrs. M. C. Decuir thereon, as in case of nonsuit; and that the appellee pay the costs of this proceeding in both courts.

Land, J., absent.