C. Yale, Jr., & Co. v. Howard , 24 La. Ann. 458 ( 1872 )

Howell, J.

The defendant obtained judgment against plaintiffs for •4f six thousand pounds of ginned cotton, strictly middling, or in default ■thereof the sum of three thousand one hundred and twenty dollars, ■the value thereof,” and caused execution to issue. Two days after -execution was issued the plaintiffs took a devolutive appeal, and had the judgment reversed, on the ground that it was enforcing a contract, the consideration of which was Confederate treasury notes.

A few days after the execution issued and.an appeal was taken, a -cotton broker in New Orleans wrote as follows to the sheriff:

“General H. T. Hays:

“ Lear Bir — I have purchased the six thousand pounds of cotton for ■account of Mr. Yale, but the press will not deliver it to-day. Will joxl please allow the delivery of the cotton to remain over until to-morrow, and oblige,” etc. 1

In accordance with this the cotton, which cost nineteen hundred and twenty dollars, was delivered, and a receipt therefor indorsed on the ■execution.

The question ,is, was this a voluntary execution of the judgment ? A majority of the court think not. It seems manifest that the plaintiffs were acting under compulsion of the law, for they were entreating the sheriff for a time to obey the writ which he was executing, and the fact that they chose to comply with one.of the alternative demands ■of a writ which they could not resist does not, in our opinion, make the execution oí the judgment voluntary. The sheriff was commanded to take the cotton or its value. He gave the debtors the right to ■deliver the cotton, which they delivered in obedience to the mandate of the law; but they continued to prosecute their appeal and were relieved from the judgment. A devolutive appeal implies the right to have the judgment executed and the obligation to refund. It seems to us that under the circumstances the action of plaintiffs was advantageous to the defendant, for had they allowed their property to be seized and sold a much larger amount would be demandable. The •case in 14 An. 329, cited by defendant, differs materially from this.

It is therefore ordered that the judgment appealed from be reversed, .and that plaintiffs recover of defendant the sum of nineteen hundred .and sixty-one dollars, with legal interest from judicial demand, and .costs in both courts.