O'Hara v. Succession of Davidson.

The case of Williams v. Vance 2 An. 909, is not in point. There the defendant was sued on a note for two hundred and forty-seven dollars and fifty cents, being one of a series given to the plaintiff for a tract of land. He pleaded failure of consideration, and that he had been deceived and defrauded by the plaintiff in the contract of sale. He prayed for judgment in his favor upon the note sued upon, and for a decree that the other notes be returned and the contract rescinded. There the defendant demanded the rescission of the sale, and his interest in that contract largely exceeded the amount necessary for the appellate jurisdiction of this court.

It is therefore ordered that the appeal herein be dismissed with costs.

No. 3023.

C. J. O'HARA v. N. SCHWAB et al.

Pothoff & Knight instituted a suit against Hill, the drawer of a note, obtained judgment, issued execution, and on the judgment not being satisfied, sued O'Hara the indorser, who, after judgment against him, paid the amount thereof. The present suit is brought by O'Hara against the sheriff and his sureties to make him and them responsible for not having collected the amount of Potthoff & Knight's judgment against Hill, alleging various acts of omission and commission amounting to malfeasance and nonfeasance in office.

The error in this case lies in the assumption that there was any subrogation in the judgment of Potthoff & Knight against O'Hara, to any right which Potthoff & Knight had against Schwab and his sureties by reason of any neglect, if neglect there was, in executing the fieri facias which had been placed in his hands. The sheriff may have been responsible to them, but he was not responsible to O'Hara, who was no party to the suit from which execution issued.

Therefore the conduct of the sheriff in the case of Potthoff & Knight v. Hill can not give rise to any action against him and his sureties in the case of Potthoff & Knight against O'Hara.

A

PPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J. Billings & Hughes, for plaintiff and appellee. Hawkins & Tharp, Cunningham and J. J. Roman, for defendants and appellants.

MORGAN, J. Potthoff & Knight owned a note for seven hundred and twenty-four dollars, drawn by S. L. Hill to his own order and indorsed by C. J. O'Hara. The note not having been paid at maturity, Potthoff & Knight sued Hill, in February, 1868, and obtained judgment against him. Execution issued thereon, and property, both real and personal, said to belong to Hill, was seized; but the property does not appear to have been sold.

O'Hara, the indorser on the note, was sued in New Orleans on the fourteenth April, 1869. He answered that the sheriff of Jefferson had seized real and personal property belonging to Hill sufficient to satisfy the judgment which had been rendered against him; that thereafter

O'Hara v. Schwab et al.

Hill paid one hundred dollars, and gave his notes payable in installments at from two to eight months for the balance, and that thereupon Hill was granted a delay and stay of proceedings, and accepted the notes as payment and discharge of the original note, which operated his complete and final release and discharge from any liability. Judgment was rendered against him. It was satisfied.

This suit is instituted against Schawb and his sureties on his bond to make him and them responsible for not having collected the amount of Potthoff & Knight's judgment against Hill, alleging various acts of omission and commission by which the sheriff made himself responsible, and as his sureties are bound with him for his malfeasance and nonfeasance in office, he asks a judgment against them for the amount he has been compelled to pay. There was a decree in his favor and the defendants have appealed.

The error lies in the assumption that there was any subrogation in the judgment of Potthoff & Knight against O'Hara, to any right which Potthoff & Knight had against Schwab and his sureties by reason of any neglect of his, if neglect there was, in executing the fieri facias which had been placed in his hands. The sheriff may have been responsible to them, but he was not responsible to O'Hara who was no party to the suit from which execution issued. Potthoff & Knight controlled the judgment which they had obtained against Hill as well as the fieri facias; they could have let the first lie dormant or have caused the second to be returned, or they could have ignored the principal altogether and sued the indorser primarily, for he was responsible without regard to the maker of the note.

Therefore, the conduct of the sheriff in the case of Potthoff & Knight v. Hill, can not give rise to any action against him and his sureties in the case of Potthoff & Knight against O'Hara.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts.

Lapene & Ferre v. Meegel. McKee v. Meegel.

No. 4989.

LAPENE & FERRE v. EDWARD MEEGEL; JOHN H. MCKEE v. EDWARD MEEGEL-Consolidated with interventions and third oppositions of GREVE, WILDERMAN et als.

The recording of a privilege too late, is equivalent to not recording it at all, so far as the seizing creditors are concerned; and recording it after the property upon which alone it can be executed has been seized and taken possession of by the sheriff and thus put away from the control of the defendant, does not affect the seizing creditor's rights.

A

PPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J. J. S. Goode, for plaintiffs and appellees. Kennard, Howe & Prentiss and E. W. Blake, for appellants.

MORGAN, J. Plaintiffs, judgment creditors of defendant, seized under fieri facias certain sugars and molasses, portion of the crop of 1873, the sugar and molasses being at the time of seizure in defendant's sugarhouse. The seizure was made on the thirteenth November, 1873. The sugar and molasses were sold, and the contest now is between plaintiffs and third opponents, as to whom the proceeds shall go.

Greve & Wilderman claim a privilege on the proceeds on the ground that they are commission merchants, and that they made the advances and furnished the supplies which were necessary to enable the defendant to make the crop.

Nelson and others claim the privilege of laborers who cultivated and took off the crop.

A motion has been made to dismiss the appeal in so far as Nelson and his co-laborers are concerned, because his and their individual claim does not exceed five hundred dollars. But the aggregate amount of their claims greatly exceeds that sum. The fund, too, to be distributed, exceeds that amount. We think the motion to dismiss should be denied.

Greve & Wilderman allege that defendant's indebtedness to them was recorded on the seventeenth November, 1873.

The pay roll showing the respective amounts due to Nelson and others was recorded on the fourteenth November, 1873.

The seizure, under plaintiffs' fieri facias was made, as we have seen on the thirteenth November, 1873.

In the case of White v. Bird, 23 An. 270, where the sugar and molasses made on the plantation of Bird having been seized, and where Thibaut, a commission merchant, filed a third opposition, alleging that his claim for supplies furnished for the use of the plantation was a privileged debt, it was said "the account of the third opponent has not been recorded. He can not, therefore, assert any privilege so as to affect the rights of the seizing creditors."

Lapene & Ferre v. Meegel. McKee v. Meegel.

In the case of Loeb v. Blum, 25 An. 232, it was held "as between Spor, the consignee, and Loeb & Co., the latter, as seizing creditors, are to be paid first. Assuming that Spor has the privilege which he claims, but with regard to which we do not consider it necessary to express any opinion, still it was not recorded prior to Loeb's seizure, and can not, therefore, prevail against it." We think that the recording of a privilege too late, is equivalent to not recording it all, so far as seizing creditors are concerned, and that recording it after the property upon which alone it can be executed has been seized and taken possession of by the sheriff, and thus put away from the control of the defendant, does not affect the seizing creditors' rights. Judgment affirmed.

No. 4629.

CITIZENS' BANK OF LOUISIANA v. A. DUBUCLET, State Treasurer. The Citizens' Bank obtained, by mandamus proceeding against the State Treasurer, a judg ment in the Superior District Court ordering him to pay the bank $200,000, and the plaintiff now prays that an injunction issue to restrain the Treasurer from paying any warrant or warrants out of the general fund, until he shall have paid the petitioner the said sum of $200,000.

The position taken as to the right to question in this suit the validity of plaintiff's claim, which is based on a final judgment, is correct; but the remedy sought by injunction can not be accorded. This is not the mode of enforcing or executing a judgment in a man damus suit.

A

PPEAL from the Superior District Court, parish of Orleans.

Haw

kins J. A. Pitot, Finney & Miller, for plaintiff and appellant. A. P. Field, Attorney General, J. Q. A. Fellows & Whitaker, for defendant and appellee.

TALIAFERRO, J. The Citizens' Bank alleges that in July, 1872, it had obtained by mandamus proceeding against the State Treasurer a judgment of the Eighth District Court of New Orleans, ordering him to pay the bank $200,000, with eight per cent. interest from twentyseventh February, 1872, being the amount of State warrants issued in its favor in payment of an equal sum loaned to the State to pay the per diem of the members of the Legislature, which warrants were issued under authority of the statute No. 12, approved twenty-sixth February, 1872, entitled "An act to amend an act entitled an act defining the distances from the domiciles of members, etc., and making an appropriation to defray the expenses of the General Assembly and to repeal act No. 52 of 1869." The act of twenty-sixth February, 1872, the plaintiff shows, provides "that warrants shall be paid out of any money in the treasury to the general fund, and out of the first money which shall be paid into the treasury to the credit of the gene

Citizens' Bank of Louisiana v. Dubuclet, State Treasurer.

ral fund, until all the warrants issued under the appropriation made im this act shall have been paid." The plaintiff complains that notwithstanding the judgment so obtained against the Treasurer, he has failed and refused to pay the bank any money. The plaintiff alleges that large amounts have been paid into the treasury, and other warrants paid by the Treasurer, to the great injury of the plaintiff. The plaintiff prayed that an injunction issue to restrain the Treasurer from. paying any warrant or warrants out of the general fund until he shall have paid the petitioner the said sum of $200,000, with interest correspondingly with the amount paid to the district judges since the rendition of the judgment in favor of plaintiff on the third July, 1872,. and not to pay any judicial salary for the future without paying to petitioner its proportion of the funds in the treasury upon an equal footing and rank with the judges.

There was an order rendered to show cause, and a preliminary restraining order issued until the rule nisi should be tried. Several interventions were filed offering the prayer of the petition to injointhe Treasurer, as asked by the plaintiff. The Attorney General, on behalf of the State and the Treasurer, excepted that act No. 12 of 1872, and especially the second section of the act, is unconstitutional and void, inasmuch as the subject matter of that section is not expressed. in the title; that the duties of the Treasurer, as required of him in the pleadings, are not merely ministerial, but of an executive character, and not such as a court can take cognizance of; that for his acts he is responsible alone to the Legislature for any failure in the performance of his duties or for any misfeasance in office, and to the parties injured in damages; that the petition and interventions set forth no cause of action; that neither law nor equity authorizes any warrant on the general fund to be paid in preference to any other warrant on the same fund, only that each should be paid in the order in which they were drawn, the first warrant or that of oldest date to be paid first out of any moneys which are in or may first come into the treasury.

On these issues the case was tried. The injunction was refused and the interventions dismissed. From this judgment the plaintiff, the Citizens' Bank, alone has taken the appeal.

It seems that the title to the act of twenty-sixth of February, 1872, does not express all its objects in its title. It is "An act to amend an act entitled an act defining the distances from the domiciles of the members of the General Assembly to the State House, fixing the mode of ascertaining the per diem of members of the General Assembly for the time engaged in going to and returning from the State House and their mileage to be paid, and the number of employes of the General