
    No. 7287.
    Thos. S. Elder vs. City of New Orleans et al.
    It is not necessary iliat the name of the elork of the lower court should appear ia the body of the transcript of appeal. His signature thereto is sufficient.
    Where a formal agreement between counsel has been made as to what shall be included in a transcript of appeal, the clerk’s certificate that the transcript contains all the documents, records, etc., required by the agreement, will be sufficient.
    The lower court fixes the return day of an appeal, and hence if it is erroneously-fixed, the error can not prejudice the appellant.
    The principal and surety on an injunction bond, who, on'the dissolution of the-injunction, have been condemned in solido for a certain sum, may unite and' give but one appeal bond, with a surety who hinds himself “for both and for either,” in the sum fixed by the court,
    Wher-e the appellant gives bond in the amount fixed by the court, the appeal can not be dismissed on the ground that the amount is insufficient.
    Where an injunction issues to restrain the sale of property worth over Seco, coupled with a demand for damages for a large amount, this court will have jurisdiction of an appeal from the judgment dissolving the injunction.
    The affidavitof a party praying for an injunction that “ all the facts above set forth-as bases of an injunction, and reasons why an injunction should issue are true and correct ” is insufficient.
    It is only when an injunction has been taken to restrain the execution of a money-judgment, that the principal and surety on the bond maybe summarily condemned in solido.
    
    The publication of the notice to delinquent taxpayers made by the Administrator of finance of the city of New Orleans in virtue of Act 48 of the Legislature of 1871, stands in lieu of citation, and just as effectively brings the parties into court.
    The right of a judge presiding in a court, and de facto- discharging the duties of that office, can not be collaterally questioned by litigants therein.
    The reception of secondary or illegal evidence in proof of a fact is no ground t®> annul a judgment upon, when the evidence was not objected'to..
    
      Under a judgment and execution for taxes the first writ of fi. fa. issued in the ease continues in force until finally satisfied.
    In the parish of Orleans the seizure of property under a fi.fa. issued in execution of a judgment for taxes is e-instructive. It takes effect by merely recording the notice of seizure, in the mortgage office, and such seizure can not be affected by an omission of the sheriff to state on his return the “date and hour” of the registry of the notice.
    In the absence of contrary proof it will be presumed that the sheriff properly recorded the notice of seizure in the mortgage office.
    It is a sufficient description of property seized and sold under a judgment for taxes that it is situated in a eei-tain distx-iet, and sauare, bounded by four certain streets, and measures so many feet in depth by so many feet in width.
    ^PPEAL from tlie Third District Court, parish of Orleans. Monroe,
    
    
      McGloin & Nixon for plaintiff and appellant.
    
      Sam. P. Plano, Assistant City Attorney, for the city, defendant and appellee.
    
      Henry Denis for Mrs. Adams, defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Appellee moves to dismiss this appeal on six grounds.

The first, second, and third grounds may be disposed of in the main by saying that the iiregnlarities complained of are fully covered by the argument of counsel, shown by the record, and the documents filed by appellant on fourth January, 1879. All the papers not excluded by that agreement seem to be in the record, and in that of State ex rel. Elder vs. Judge Third District Court, No. 6846. The transcript was filed in time under said agreements.

It is not necessary that the clerk’s name should appear in the body of his certificate. His signature thereto is sufficient.

He certifies that the transcript contains all documents, records, etc., required by the written agreement of counsel. That was sufficient in a case where, like this, the counsel had made a formal agreement on the subject.

The fourth ground is that the appeal should have been returnable third Monday of May instead of first Monday of November. Appellant moves for the appeal, and the court fixes the return day thereof. If the court erred, appellant can not be prejudiced thereby.

Tne fifth ground is that the bond for a suspensive appeal, from the judgment dissolving the injunction, is defective and insufficient in amount. The judgment is for $100 damages and costs. The court fixed the bond at $250. When the appellant gives bond for the amount fixed fey the court, the appeal can not be dismissed. If it be a money judgment, the law fixes the amount for suspensive appeal. The judgment was one in solido against plaintiff and the surety on his injunction bond. They appealed by joint motion in open court, and gave one bond with a surety who bound himself for $250 “for both and for either” of the principals.

We know no law or reason why two persons condemned in solido in the same judgment should give separate bonds. If the surety be for both of them, and for each of them, and binds himself to pay the amount required, it is sufficient.

The condition of the bond in this case is that prescribed by the Code of Practice.

The sixth ground is that the amount involved is not within the jurisdiction of this court.

Plaintiffs petition alleges in substance that the city of New Orleans caused to be entered up against him, without citation or notice, and without default, a pretended judgment for $175 for taxes ; that iteaused to be issued thereon a pretended writ of fieri facias, which was illegal upon its face, and caused a pretended sale of his property to be made, without having made any seizure thereof, and without having given him any notice ; that he was entitled to redeem said property, and by way of compromise tendered the necessary amount to the purchaser, Mrs. Adams ; that the judgment and the sale are therefore absolute nullities ; that the sheriff, the purchaser, and the city are threatening to dispossess him under said void proceedings. He therefore prays an injunction restraining them, and for judgment against them declaring the nullity of said judgment, and of said sale, and for $301 0 damages for disturbing him, etc. It is alleged and admitted that the property is worth over $500 — in fact, several thousand dollars. Appellee relies on the case of Cushing vs. Sambola & Ducros, 30 An. 426, and the cases there cited, and others to same effect.

But that case does not meet all the issues in this case. We there held that an action to annul a judgment for less than $500, between the parties to such judgment, could not be brought within our jurisdiction by alleging damages to a greater amount as consequence of its execution. There is involved in this suit a demand to annul the sheriff’s sale, for matter subsequent to and independent of the judgment, and for damages to a large amount, resulting from his alleged acts. This state of facts brings the case within the jurisdiction of this court. Whether the plaintiff can inquire into the judgment itself, will be a subject of inquiry when the case comes before us for trial, and we need express no. ojMnion thereon at present.

The motion to dismiss is overruled.

On the Merits.

Plaintiff sues to annul, first, a judgment of the Superior District Court rendered against him in 1874 for taxes due the city of New Orleans; second, a sheriff sale, under execution of said judgment, whereby a square of ground in this city was adjudicated to Mrs. 0. Adams, Jr.

He alleges that the sheriff is about to put Mrs. Adams in possession under an order of court. He, therefore, asked and obtained an injunction restraining said parties from interfering with his possession.

Defendant moved to dissolve this injunction, with damages, on several grounds, one of which was insufficiency of the affidavit. The court sustained the motion and dissolved the injunction, with $100 damages, against principal and surety in solido. Plaintiff appeals from said decree.

The case was then tried on its merits, and there was judgment dismissing plaintiff’s suit. Prom this final judgment plaintiff also appeals.

Plaintiff’s petition alleges various grounds of nullity against the judgment and sale, and that the sheriff is about to and will execute a deed to Mrs. Adams, and is about to and will dipossess petitioner and place said purchaser in possession, unless enjoined. The oath is as follows :

“ That all the facts above set forth as basis of an injunction, and reasons why an injunction should issue, are true and correct.”

It is manifest that such an affidavit is insufficient. It can not be positively affirmed of amj fact stated in the petition that it is sworn to. What facts are or are not considered to be basis and reasons for injunction, is left to conjecture, argument and inference. The oath must be positive. The rule is well stated in Herbert vs. Joly, 5 La. p. 52, by Chief Justice Martin : “ The oath should be direct, positive, and unconditional.” See, also, 5 La. 82 ; 3 An. 225. The injunction was properly dissolved ; but we do not think that damages could be, in such case as this, summarily awarded. It is where the injunction is taken to restrain the execution of money judgments, that the principal and surety may be summarily condemned in solido. R. S.

This is not such a case. Indeed, there is no law making the surety in such case as this a party to the suit. The right of defendant for damages upon the bond should have been reserved.

On the merits, the grounds of nullity against the judgment are, first, want of citation ; second, incompetency of the judge ; third, that there was not legal proof of publication of the notices to delinquents prior to confirming default.

The judgment sought to be annulled recites that there was “ due proof of the publication required by law.” Under the law (see. 21 of the city charter, act No. 7 oí extra session of 1870) this publication stands in lieu of citation. Aside from the presumption of law, there was positive proof that this publication was made in the official journal for thirty days, as required. The publication was made three times during the thirty days, in conformity to section nine, act 18 of 1871. We see no reason to doubt the authority of the Legislature to confer the power to make this publication upon the Administrator of Finance. It is not a judicial act, and the Legislature may require it to be done, as well by that officer as by the clerk or sheriff. The citation was sufficient.

The second ground is that Jacob Hawkins, the judge presiding in the Superior District Court, was appointed to said office, and not elected as required by the constitution. This might be a good ground for his removal in a proper action brought for that purpose. The right of the judge presiding in a court, and de facto discharging the duties of that office, can not be collaterally questioned by litigants therein, more especially in proceedings to which he is no party.

The third ground is in substance that the proof- of publication was not that required by law, and he cites R. S. section twenty-six, which directs the State Printer to make affidavit to the publication. Even if that section referred to other than publications made by order of court, the fact of publication could be proved by other evidence if not objected to. The reception of secondary or illegal evidence in proof of a fact is no ground to annul a judgment upon. Such evidence should have been objected to when offered. This is elementary.

The grounds upon which the sale is attacked are—

First — That the writ of ft. fa. had no return day fixed therein.

Second — That there was no lawful seizure of the property, or return thereof.

Third — That there was no notice of seizure.

Fourth — No lawful description of the property seized and sold.

The first ground is abandoned, except that it is contended the sheriff made the sale under an expired writ. We have held, on more than one occasion, that the eighth section of act 85 of 1858 was in force still, and that under “judgment and execution for taxes,” “no alias or piarles writ shall be issued, but the first writ shall continue in force until finally satisfied.” Marin vs. Sheriff, 30 An. 295. That act is not repealed by the general law found in the R. S. on the subject of return of writs. It is not on the same subject matter, and relates to the special matter of ivrits on tax judgments.

Second — In the .parish of Orleans the seizure is constructive, and results from the recordation of the notice of seizure in the mortgage office. The sheriff in his return on the writ certifies that he “ caused the said notice of seizure to be duly recorded in the office of the Re«order of Mortgages.” This recordation was itself the seizure. It was a fact, an act The sheriff is directed to make out three notices of seizure — one for the debtor, one for registry, and a third one for iris'return. It directs him on this third one to state the “ date and hour” of the registry thereof in the mortgage office.

Plaintiff’s counsel treats this return on this third copy of the notice as sacramental, and argues that if that return is not made strictly as required there is no seizure. We have seen that the recordation constitutes the seizure. Can it be that the omission of the sheriff in his return to state the date and hour ” of registry can obliterate the fact of registry, and make non-existent that which really exists ? This is the very refinement of technicality.

There is no evidence of the date of this registry. We only have the sheriff’s return on the writ that was “ received November 28, 1874, and levied upon the property described in the within annexed notice of seizure ; * * * caused the said notice of seizure to be duly recorded,” etc. The words “ recorded August 80,1875,” written across the back of the writ, are unsigned and not in any way connected with the sheriff’s return thereon. We must, in the absence of contrary proof, presume that the sheriff did his duty and recorded the notice. He says he did. If the words referred to mean anything, it is that the writ itself was recorded somewhere, but where is conjectural.

Third — There was a notice of seizure given to and served in person upon the plaintiff as shown by the record.

Eourth — The property is described as a square of ground, No. 213, in the Sixth District, bounded by Magazine, Camp, Valmont and Leon-tine streets, measuring 278 by 306 feet. We are at a loss to see what defect there is in this description.

It embraces the whole square; and even if there be a discrepancy of a few inches in the dimensions one way and a few feet another between the notice and plaintiff’s title, what matters it? The bounds are accurately stated and well defined. There can be no mistake. We see no nullity in the judgment or sale, and the court a qua properly rejected plaintiff’s demand. But it improperly awarded damages against the' plaintiff and his surety in this action.

It is therefore ordered and decreed that the judgment appealed from, rejecting and dismissing plaintiff’s demand, is affirmed ; that the judgment dissolving the injunction and condemning plaintiff and surety in damages be annulled, so far as it awards said damages, and in all other respects is affirmed — reserving to defendants their right to proceed on the Injunction bond for such damages as maybe clue. It is further ordered that plaintiff pay costs of the court below and defendant those of this appeal.  