
    No. 3286.
    Patrick Gallagher and Wife v. B. Abadie.
    The defendant appeals from a judgment annulling an act of sale to Mm of plaintiffs’ property under the enforcement of a judgment.
    There is no evidence in the record that the property was seized by the constable who effected the sale, nor that there was a sufficient advertisement. It is proved positively that the appraiser in behalf of G-allagher and wife was appointed by a justice of the peace. A justice of the peace has no authority to appoint an appraiser in behalf of the defendant in execution at a forced sale.
    An appraisement made by parties unauthorized to act is no appraisement. The property of the plaintiffs was therefore sold without appraisement, and the sale was invalid.
    The objection that the plaintiff's have not returned nor offered to return the price of adjudication, and therefore ought not to succeed in their suit, has no force. The plaintiffs have .received nothing to return, the defendant having purchased under his own execution. If he paid to the constable the balance of his bid in excess of the amount of the writ, that sum is yet in the hands of said constable. The plaintiffs, finding that their property had been illegally seized, refused to ratify the sale by claiming the balance of the funds in excess of the amount of defendant’s writ.
    Appeal from the Sixth District Court, parish of Orleans. Gooley, J.
    12. Shackleford, for plaintiffs and appellees. 3B. Gamhray, 33. Phillips, J. S. Whitaker, for defendant and appellant.
   Wtlt, J.

The defendant appeals from the’judgment annulling the sale of the property described in the petition, which he acquired from the plaintiffs under the enforcement of his judgment for one hundred «dollars against them. The ground for nullity is that the constable did ■not comply with the formalities required by law in selling the house and lot of the plaintiffs ,• there was no seizure, no sufficient advertisement, and no legal appraisement of the property.

The return on the fieri facias reads as follows: “Received, New Orleans, October 19, 1869. Served notice on defendant personally on twenty-first of same month and year, and three days after proceeded •to advertise the property of the defendant situated on St. Ann street, between Dorgenois and Broad, which was sold at public auction at the Merchants’ and Auctioneers’ Exchange, on Royal street, between Customhouse and Canal streets. Said property was sold to the highest bidder, Mr. Abadie, on the twenty-seventh day of November, 1869, at twelve o’clock, for the sum of $425 cash, in United States treasury notes. “ CHARLES BET AT,

Deputy Constable.”

' There is no evidence in the record that the property was seized-by the constable, nor that there was a sufficient advertisement. It is proved positively that the appraiser in behalf of G-allagher and wife was appointed by a justice of the peace. A justice of the peace has no authority to appoint an appraiser in behalf of the defendant in execution at a forced sale. An appraisement made by parties unauthorized to act is no appraisement. The property of the plaintiffs was therefore, sold without appraisement and the sale was invalid.

The defendant, however, objects that the plaintiffs have notreturned nor offered to return the price of adjudication, and therefore ought not. to succeed in their suit.

The plaintiffs have received nothing to return, the defendant having purchased under his own execution. If he paid to the constable the balance of his bid in excess of the amount of the writ, that sum is. yet in the hands of the constable. The plaintiffs, finding that their property had been illegally sold, properly refused to ratify the sale by claiming the balance of the funds in excess of the amount of defendant’s writ. We see no error in the judgment.

Judgment affirmed.

Rehearing refused.  