Succession of Heavia , 28 La. Ann. 779 ( 1876 )

Howell, J.

S. C. Johnson filed an opposition to the account presented by the widow of John Heavia, administering as tutrix, and obtained a judgment on his demand. Failing to get payment^ he took a rule on the tutrix to make her liable, personally, and upon issuing execution against her, seized certain property as belonging to her, whereupon D. L. Stanton filed an opposition, claiming the said property as owner by purchase from Mrs. Heavia prior to the seizure. No injunction having issued, the property was sold by the sheriff, and Johnson became the purchaser. Upon trial of the opposition, Stanton was declared the owner, and Johnson appealed.

In the brief Johnson’s counsel suggests that the Second District Court was without jurisdiction of the controversy between these parties. We think it clear that said court had jurisdiction -to determine whether or not property was properly seized under a writ issued by its authority. The levying of the fieri facias brought the property within its jurisdiction, and it was tlie only tribunal to pass upon the correctness of the seizure.

Act No. 2 of 1873, in first section, provides that ‘-'said act shall not he construed to prevent the Second District Court for the parish of Orleans from exercising all the powers granted by section five of act No. 2 of the special session of 1870, approved March 16,1870, * * * and shall not be held to deprive any judge or court of the power to issue injunctions to stay the execution of any order of seizure and sale, or any writ of execution or possession granted by such judge or court, and shall not be held to deprive any such judge or court of the power to issue the writ of injunction to stay the execution or enforcement of any judgment or order of sequestration, attachment, or provisional seizure made by such judge or court. The power reserved to the Second and Third District Courts to issue writs of mandamus and injunction in aid of their special jurisdiction and the power reserved to each of the district courts to issue writs of injunction to stay proceedings in said courts, as herein set forth, shall be exclusive of the Superior District Court herein created.”

These reservations were made in view of the exclusive jurisdiction of injunctions, in all other respects conferred on the Superior District Court, created by said-act; the jurisdiction of the other courts in other matters not mentioned in said act remaining undisturbed. The power of the respective courts to pass on and determine all matters connected with the jurisdiction of each, and the execution of writs issued by each, as it before existed, was not infringed.

The Second District Court had jurisdiction of Johnson’s claim against the succession of Heavia, and of the execution or enforcement of the judgment rendered thereon, and necessarily of all questions arising in the execution or enforcement thereof, there being no limit, as to value, to its jurisdiction as in the case of parish courts.

If Stanton were to institute a petitory or possessory action to recover real property, he would of course have to go into a court of ordinary jurisdiction; but when his property is seized under an execution against another person, he can go into the court issuing the writ, to have it released because it does not belong to the debtor.

Upon the merits of this controversy we agree with the district judge that Stanton has established the reality of his purchase, and that, therefore, the property purchased by him could not bo seized under an execution against his vendor until the sale was duly set aside.

Judgment affirmed.