
    NO. 7460
    GEORGE E. REUGGER VS WM. E. DE BRUEYS.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   OPIMOS •

By Eis Honor John St. Paul.

Plaintiff/ brings thia auit via executive at. the defendant'a domicile (Orleans) although the mortgaged lands are situated in another parish (St Taraany). Defendant seeks to enjoin on the ground that the court is without jurisdiction.

There is no merit in the contention. By the very terms of Art 163 of the Code of Practice (evenas originally written) where a proceeding has fir its object the enforcement of a mortgage upon immovable property by virtue of an act importing a confession of judgment, such prooeeding may be instituted either where the property is situated or where the defendant has his domicile. And hence the Supreme Court was neoessarily bound to recognize the validity of Executory Process issued by the court of the defendant's domicile, though the property to be seized might be situated § elsewhere. 17 An 126; 23 An 560.

11.

It is further urged, that the.re is pending in the court of St Tamany, Parish, where the property is situated another executory process against the same property and prior in date to these.proceedings. Hence it is urged that this case should for that re ason^have^ been instituted before that court or at least be transferred,-*/ CL. <P. /%-áj 3f-t -tfawt -the. eoBtogfafea. reama. now-aTtfeuoAacMgi-ijAet».

But assuming that the property is still under ¿ej-bure by the • court of St Tamany, nevertheless the contention is unfounded in law. Articles 126-395-396-397 C. P. provide that where one seeks to arrest the execution of an order of seizure or regulate its effect between creditors with conflicting privileges, he shall bring that issue before the court in which the property was first seized. But it is perfectly celar that as long as no conflict arises there is no occasion whatever to transfer proceedings from one court to another.

Por it is neither unlawful nor unusual for a sheriff to have in his hands at one time several writs against the same defendant Issued out of different court’s and to levy upon the same property under them all' successively. -If the. property seized sells for enough to satisfy all these writs^ then'all claimants are paid in full and no conflict can possibly arise between them. If however the proceeds of sale should not suffice to pay all claimants it is iíéié then that a conflict arises and it is then time to raise a contest over the proceeds wfelch contest would then be transferred to the court having issued the fir3t seizure C. r. 126.

March 27 1919.

But no such situation has yet arisen in this case ahd no 3uch situation may ever arise.

111.

finally it is contended that plaintiff herein is only an Interposed person acting for the plaintiff in the proceedings before the court of St Tamany Parish who i3 alleged to be the true owner of the note herein sued upon. And based upon such allegation pleas of res .judicata lis pendens. and payment are urged against the plaintiff.

But the evidence of plaintiff herein is that the note belongs to her, that she acquired it long before maturity in entire good faith and for the full value thereof, and that same is still unpAid; and thi3 is practically unoontradioted.

I-t Í3- true -that the- trial -judge- allowed defendant to introduce, for the purpose of contradicting hor, the testimony of a witness taken on the trial of tho case before the court of St Tamany, to which the plaintiff was not a party. But plaintiff objected to the introduction of such tostiraony as being res inter alios acta, and her objection should have been maintained. However even after admitting this testimony the trial judge seems to have attached no weight to it and accordingly dissolved the injunction and directed the sheriff to proceed with the Executory Process. We think his judgment was correct.

It is therefore ordered that the j.udgment appealed from he affirmed.

Hew Orleans La,  