Hart v. Pike, Brother & Co. , 29 La. Ann. 262 ( 1877 )

The opinion of the court was delivered by

Spencer, J.

Defendants took out executory process against certain' property in the city of Baton Rouge, mortgaged by Hart & Hebert, a few days after the latter had made an assignment of their effects to their creditors.

The plaintiffs, representing the creditors, took out an injunction against tlie process, and allege many grounds therefor. It is only necessary to notice one of them. . They allego, and such is the admitted fact, that the-writ of seizure and sale was issued without tlio cleric’s having previously issued the notice of judgment prescribed by articles 735 and 730 of .tlie Code of Practice. That no such notice was over issued by the clerk, and none over served on the defendants in the process. It seems that on the day the writ came into tlio sheriff’s hands he gave a written notice to defendants that unless tlie amount be paid in throe days lie would seize and sell tlie mortgaged property.

This notice by the sheriff was not the notice required by law. It clearly results from the provisions of the Code of Practice, articles 735- and 736, that the preliminary notice therein provided for must be issued by the clerk. Tlio writ can not legally issue until that notice has been given, and the sheriff, therefore, can not have the power to giyo such noticej because ho derives liis whole knowledge from the writ, which can not legally reach him. until this notice is given and tlio delays expired. The judgment of the court a qua dissolving the injunction with three hundred and fifty dollars damages is erroneous. It is therefore ordered, adjudged, and decreed by the court that tlio judgment appealed from be annulled and avoided, and it is now ordered that the injunction sued out by plaintiffs- bo sustained and jierpctuated, defendants heroin paying; costs of both .courts.