
    (94 South. 441)
    No. 23772.
    STATE ex rel. CONTINENTAL SUPPLY CO. v. FONTENOT, Sheriff (DALBY, Intervener).
    (Dec. 1, 1919.
    On the Merits, Oct. 30, 1922.
    Rehearing Denied Nov. 27, 1922.)
    
      (Syllabus by the Court.)
    
    On Motion to Dismiss.
    1. Appeal and error <&wkey;>797(l) — Motion to dismiss in time, though transcript tiled before return day.
    A motion to dismiss an appeal is within the legal delay if filed within three days-after the time allowed the appellant to file the transcript, and that delay is not affected by the filing of the transcript before the return day.
    2. Appeal and error <&wkey;44I, 1106(1) — Trial court has jurisdiction to determine whether bond filed, though transcript lodged in Supreme Court; case remanded to determine question as to filing of bond when likely to involve taking of testimony.
    A trial court does not lose its jurisdiction of a case by reason of an appeal from its judgment until the appeal is perfected; and, in a ease where a bond is required, the amount of which is either fixed by law or is to be fixed by-the court, the appeal is not perfected until the bond has been filed. In such case, though the transcript be ■ lodged in this court, and though this court may determine whether it is here properly -or improperly, the trial court retains jurisdiction to determine whether the condition precedent to the perfection of the appeal has been complied with, and, where that question is left in doubt, and the inquiry is likely to involve the taking of testimony, this court, may in its discretion, remand the case in order that it may be determined by the trial court.
    3. Appeal and error <&wkey;>657(I) — Transcript returned for amendment when defective because of clerk’s ignorance or negligence.
    Where a transcript is defective by reason of the ignorance or negligence of the clerk, it will be returned to him to be amended.
    On the Merits.
    
      (Additional Syllabus by Editorial Staff.)
    
    4. Sheriffs and constables c&wkey;113(1)— Sheriff bound at his peril to know property belongs to judgment debtor.
    A sheriff seizing property on execution is bound at his peril to know that the property belongs to the judgment debtor, especially where he is confronted with a claim of ownership by a third person.
    5. Sheriffs and constables c&wkey;90 — Sheriff not entitled to demand indemnity from plaintiff in absence of statute.
    ‘ No statute authorizes a sheriff to demand indemnity except Act No. 37 of 1882, applying to personal property, and in the absence of such statute the sheriff has no right to. demand indemnity from plaintiff because of a third person’s claim of real property seized on execution.
    6. Sheriffs and' constables &wkey;5106 — Sheriff entitled to exercise discretion until issue of ownership determined.
    As the sheriff cannot demand indemnity when real estate seized under execution is claimed by a third person, he is entitled to use a wise and just discretion until the issue of ownership can be determined.
    7. Mandamus &wkey;> 10 — Sheriff may sot up claim of ownership as reason for not executing writ.
    Under Code Prac., art. 830, relative to the function of mandamus, though, when an officer arbitrarily refuses to execute a writ of fieri facias, the creditor is entitled by mandamus to require performance of his official duty, where land seized under the writ is claimed by a third person, the sheriff should be permitted to set up the reasons why he should not execute it and have the benefit of the court’s judgment in a doubtful case or be relieved from proceeding altogether if the property does not belong to the debtor.
    8. Mandamus <&wkey; 153 — Claimant of real property may intervene in proceeding to compel sheriff to proceed under execution.
    Where in mandamus to compel the sheriff to execute a writ of fieri facias he sets up the defense that a third person claims real property seized thereunder, such claimant may intervene and join the sheriff in resisting the demand of the relator.
    9. Mandamus &wkey;l87(9) — Supreme Court without jurisdiction to consider evidence in sup» port of defense to mandamus.
    In mandamus to compel the sheriff to execute a writ of fieri facias against real property seized thereunder, the Supreme Court cannot consider original evidence that since the seizure of the property the record of a prior foreclosure suit has been corrected to show that title was in an intervener, and nob in the judgment debtor, as it has no bearing on the court’s jurisdiction, and the proper course is to remand the cause for the receipt of such proof.
    Provosty, C. X, dissenting.
    Appeal from Fifteenth Judicial District Court, Parish of Jefferson Davis; Jerry Cline, Judge.
    Mandamus by the State, on relation of the Continental Supply Company, against Isaac ' Fontenot, Sheriff, in which Duelen W. Dalby intervened. From a judgment for the relator, the intervener appeals.
    Judgment set aside, and cause remanded, with instructions.
    Rehearing denied by the whole court; Provosty, C. X, and O’Niell, J., dissenting.
    Modisette & Adams, of Jennings, for appellant.
    J. S. Atkinson, of Shreveport, and Smith & Carmouche, of Crawley, for appellee.
   On Motion to Dismiss Appeal.

MONROE, O. J.

On September 11, 1919, judgment was rendered and signed herein in favor of relator, on his demand against defendant, and dismissing, on his exception, the intervention of Lucien W. Dalby, and on i the same day an order was made allowing him an appeal, if suspensive, on a bond of $8,000, and, if devolutive, on a bond of $150. The clerk certifies that the transcript “contains a true and correct copy of all proceédings had in the cause, * * * which pleadings include the original petition, answer by Sheriff Fontenot, petition. of intervention, and third opposition by L. W. Dalby, with1 exception thereto, judgments, bond of appeal, and briefs used in the cause,” and it bears date September 11, 1919; but the only bond of appeal that we find in the record is a bond given by the intervener in the sum of $6,000, for a suspensive appeal, which bears date September 15, with the oath of the surety dated September 16, 1919, and with nothing to show the date of the filing. The appeal was made returnable on or before October 1, but was lodged in this court on September 24, 1919.

Relator (appellee) on October 2 filed a motion to dismiss, on the ground that the transcript shows no appeal bond, since a bond of date September 15 could form no part of a transcript as certified on-September 11, and the further ground that it does not appear that the bond in question has ever been filed in the case.

In the brief filed in support of the motion to dismiss it is alleged as follows:

“The facts are that, when counsel for plaintiff went to Jennings after the original bond was filed, he called the attention of counsel for.interverer to the facts therein. Upon returning to .Crowley, counsel drew up a rule upon Mr. Dalby to show cause why the b.on,d should not be increased or the appeal dismissed, and sent same over to Judge Cline, in Lake Charles, to fix a return day thereon. Before this could be done, and solely (as we believe) because of the notice already given, as above set forth (to quote from the affidavit of the clerk of court, which was probably submitted to counsel for intervener, if not prepared by said counsel), ‘a few days subsequent, at the request of Modisette & Adams, attorneys for intervener and appellant, the record was withheld, and a new bond in lieu of the old bond filed and placed in the record on September 16, 1919.’ The clerk goes on to say that the copies of the new bond were substituted in the three transcripts in place of the old bond. All of this was^done, as shown by said affidavit, ‘at the request of Modisette & Adams, attorneys for intervener and appellant.’
“It must be clear to the court that the bond originally furnished is not in the record, and there is only a so-called bond not even filed ‘in lieu of the old bond.’ It is true that the clerk declares that the second bond was really filed, but th'ere is nothing in the transcript to show this, because the transcript shows it was not filed.
“Under section 2 of Act 112 of 1916, any new or supplemental or additional bond renders the surety thereon ‘liable * * * solidarity with the sureties on the original bond.’ This shows that the new bond cannot be substituted in lieu of the old bond, as was done in this case, and this action was not taken by the clerk except upon the request of the attorneys for the appellant. The omissions are therefore attributable to appellant, and not to the clerk.
“As shown by a carbon copy of our rule, we took the necessary steps under Act 112 of 1916, and we do not know why appellant failed to include this rule in the transcript. Under the circumstances of this case, the court cannot help but consider this rule, since counsel makes the point that we did so proceed in this case under point 5 of his syllabus.”

Counsel for appellant (in their brief) allege that the case was decided on December 11, and an order of appeal granted and a bond filed on that day; that" subsequently another bond of appeal was filed, and “the transcript rushed to this court at the request of counsel for appellee”; that the motion to dismiss- was filed more than three days after the transcript was lodged in this court, and came too late; that no notice of irregularities and omissions in the appeal bond was served on appellant, as required by Act 112 of 1916; and that such notice was a condition precedent to the right to dismiss the appeal, even though such irregularities and omissions existed.

The clerk of the court has sent up an affidavit (which was filed on October 4) in which he says:

That on the day the judgment was rendered and the order of appeal made the intervener “completed the appeal [sic] to the Supreme Court of Louisiana; that immediately upon perfecting the appeal, at the urgent request of Messrs. Smith & Carmouche, attorneys for plaintiff, appellee, the record was prepared and ready to be forwarded on September 12, 1919; that a few days subsequent, at request of Messrs. Modisette & Adams, attorneys for intervener and appellant, the record was withheld and a new bond, in lieu of the old bond furnished, filed, and placed in the record on September 16, 1919. The record having been completed, it was necessary to make copies of the new bond and substitute them in the three copies of transcripts, and, in making these copies, the young lady stenographer in office omitted placing on the copies the date of filing of the original bond, which omission was overlooked when record was expressed, as also the date on the certificate of the clerk as to contents of transcript, which would have shown a date subsequent to the date and filing of the appeal bond; * * * that the omission of filing date on the bond of appeal is a clerical error, and the dating of the certificate an oversight which will be corrected by the office if given the opportunity; * * * that the filing of the original and substituted bond was done within the 10 days allowed by law after appeal. * * *

Opinion

The motion to dismiss, having been filed within three days after the return day, was within the legal delay, to wit, “within three days after the time allowed for the appellant to file the record” (Code Prac. art. 589), and, the transcript having been lodged in this court, we have no doubt of the authority of the court to determine whether it is here properly or improperly. On the' other hand, a trial court does not lose its jurisdiction of a case by reason of an appeal from its judgment until the appeal is perfected, and, in a case where a bond is required, the amount of which is either fixed by law or to be fixed by the judge, the appeal is not perfected until the bond is filed, and the trial court retains jurisdiction to determine whether that condition precedent to the divestiture of its jurisdiction has been complied with. In the instant' case, through the negligence of the clerk, the transcript is defective and incomplete, and his affidavit does not altogether remedy the defects or supply the omissions, nor would it be convenient for this court to make further inquiry into a matter which can be better inquired into by the trial court.

It is therefore ordered that this case be remanded to the district court, with instructions to inquire into the facts and determine 'whether or not the condition upon which the appeal was granted in the matter of the giving of the bond has been complied with. It is further ordered that the transcript in triplicate herein filed be returned to the clerk, with instructions to remedy its defects and supply its omissions, Including the omission to copy therein the bond of appeal said to have been first filed by the appellant with the date of its’ filing.

On the Merits.

By the WHOLE COURT.

DAWKINS, J.

Continental Supply Company recovered a judgment against the Fisher Oil Company and George B. Zeigler in solido for something in excess of $11,000 which was appealed from devolutively and finally affirmed by this court. Pending the appeal, the judgment was recorded in Jefferson Davis parish, and plaintiff therein issued execution, and the sheriff seized the east half of Sec. 8, Tp. 10 S., R. 8 W. Thereupon one Lucien W. Dalby, claiming to be the owner of said property, notified the sheriff of said claim and that he would hold the said officer liable in damages if he persisted in said seizure. The sheriff notified plaintiff in execution that, unless it gave bond to indemnify him in the sum of $40,000 within three days, he, the said sheriff, would release the property. Whereupon plaintiff in execution brought this proceeding by mandamus to compel the said sheriff to proceed with the advertisement and sale, setting up the facts substantially as related above.

In response to the rule nisi, the sheriff admitted that he had refused to proceed further without an indemnity bond, but averred:

That, while “technically it may be argued that upon the face of the record the said property stands in the name of George B. Zeigler, the judgment debtor of relator, * * * said property was sold by youi- respondent as sheriff at public sale to Lucien W. Dalby, in a certain foreclosure proceeding entitled Lucien W. Dalby v. George B. Zeigler, No. 980 of the civil docket- of the district court in and for the' parish of Jefferson Davis, La., but that the proceedings conducted in that case erroneously described the property, in that said property was described as being in section 28 instead of section 8, the true description of. said property.”

He further averred that he had actually seized, sold, and delivered the property to Dalby, though erroneously described, in the year 1917, and that he had taken and continued in possession ever since; that relator had recognized the said sale judicially by attacking it in a suit against Dalby to have the same set aside on the alleged ground of fraud; and, finally, that if he advertised said property for sale and sold it, he would subject himself -to heavy damages at the hands of Dalby. Otherwise respondent pleaded that he was without interest and prayed that the demands of relator be rejected.

Thereafter Dalby intervened, claiming ownership of the property through the proceedings set up in the answer of the sheriff, and also setting up the errors in description, as well as the other matters pleaded by the sheriff and opposing the granting of the writ of mandamus; that he was entitled to have the said errors corrected; and that, if the court should think it appropriate to have the same done in this proceeding, then Zeigler should be made party. He pleaded estoppel, based upon the action to annul .referred to above in thp return of the sheriff, want of jurisdiction and lis pendens, in that that cause had been transferred to the Supreme Court by appeal, and involved the same issues as the present case. The prayer was in conformity with the allegations of the petition.

Relator excepted to the petition of intervention on the ground that it disclosed no cause of action. This exception was sustained, the intervention dismissed, the rule was made absolute against the sheriff, and intervener has appealed.

In this court appellant has filed pleas of estoppel and res judicata, alleging that sincp this proceeding was instituted he had instituted in the court below a suit to which relator, Zeigler, and the sheriff were made parties, and contradictorily with them had had thb said error in description of the property corrected by judgment of court, from which no appeal had been taken, and that the same was now final, and that the said property now stands correctly described upon the records of the parish in the name of appellant. Appellant annexes certified copies of the petition, answers, judgment, etc., in said suit, and prays that said pleas be sustained. In the alternative, he asks that this cause be' remanded for the purpose of introducing evidence to sustain said defenses.

Opinion

When the sheriff was confronted with the claim of ownership by the intervener, he was put upon notice that, if he persisted in the seizure and sale of the property, the claimant would hold him responsible for the damages which might result therefrom; and, even outside of that notice, he was bound to know, at his peril, that the property belonged to the judgment debtor. Macias v. Lorio, 41 La. Ann. 300, 6 South. 538. He had no right, in the absence of statute authorizing it, to demand indemnity of the plaintiff (McDonald v. Lewis, 4 La. Ann. 201; 24 R. C. L. 972, verbo Sheriffs, § 66); and hence he was entitled to use a wise and just discretion, until the issue of ownership could be determined (It. C. L. 24, p. 925, § 15, and authorities cited). There is no statute in this state authorizing the sheriff to demand indemnity except in the case of personal property. Act 37 of 18S2.

Therefore, when the plaintiff invoked the writ of mandamus to compel the advertisement and salé of the property, the levy having already been made, it was entirely proper for the sheriff to raise and submit to the court the question of ownership, suggesting, as he did, that the adverse claimant be made a party. It is said by counsel for relator that the question of ownership could not be grafted upon the summary proceeding of mandamus. However, our law (Code Prac. art. 830) defines the function of mandamus as follows:

“The object of this order is to prevent a denial of justice, or the consequence of defective police, and it should therefore be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever.”

Hence,' when an execution creditor has placed in the sheriff’s hands a writ of fieri facias, and that officer arbitrarily refuses to execute it, though the debtor have property clearly subject to seizure, such creditor should not be driven to a suit upon the sheriff’s bond, but by the writ of mandamus be permitted to require the performance of official duty. On the other hand, since in the ease of real property there is no law permitting him to exact indemnity of the execution creditor (who may or may not be financially irresponsible), justice requires that he should be allowed to set up the reasons why he should not execute and have the benefit of the court’s judgment in a doubtful case, or be relieved from proceeding altogether where the property does not belong to the debtor. In some jurisdictions the sheriff is permitted to impanel a jury for the purpose of determining the question of ownership, and is relieved from proceeding if the title is determined adversely to the contention of the plaintiff in execution, or is excused from liability in damages to the third person if the issue is determined the other way.

Inasmuch as we have found that the sheriff has the right to urge such a defense to the writ of mandamus, it follows that the third person claiming the property, and in that way disclosing an interest in the result of the litigation, may intervene and join the sheriff in resisting the demand of the relator. State ex rel. Board v. Capdeveille, Auditor, 122 La. 615, 48 South. 126.

For these reasons we think that the petition of intervention does disclose a cause of action, and that intervener should not be driven to a proceeding by injunction, but should be permitted to join in such litigation whenever his interest requires, using as a defense that which might be available as a weapon of attack.

If, as alleged in the plea of estoppel and, res judicata filed in this court, the record has been corrected adversely with relator so as to show that the property seized was that acquired by intervener in the foreclosure, and that judgment is final, it may be that the very issue raised by the sheriff and joined in by intervener has been settled adversely to relator, and that the writ of mandamus should not be used to compel the sheriff to advertise and sell property belonging to intervener.

Since we have no power to consider the original evidence accompanying these pleas, they not bearing upon our jurisdiction, the proper course is to remand the cause for the purpose of receiving that proof and to , allow the lower court to again pass upon the matter in the light of the facts which may be developed.

For the reasons assigned, the judgment of the lower court is set aside, and this cause is hereby remanded to the lower court for the purpose of permitting the introduction of the evidence in support of the pleas of estoppel and res judicata, and with instructions to pass upon the issues in the light of such proof, and for such further orders and decrees as may be consonant with law, relator to pay costs of this appeal, all other costs to await final judgment.

PRQVOSTY, C. J.

(dissenting). Title to •real estate is determined exclusively by the public record in the recorder’s office. McDuffie v. Walker, 125 La. 152, 51 South. 100.

The title stood thus of record in the name of Zeigler, and had so to stand until the defect in the foreclosure proceedings and in the deed to Dalby had been cured. This cure could be effected only by means of a direct suit for that purpose — such a suit as, we are informally advised, has now been brought and carried to a successful termination.

Had the result of that suit been different, Dalby would have had for now several years all the benefits of an injunction staying the execution of plaintiff’s moneyed judgment without having given bond or incurred .any danger' of legal penalties, all through what would have been the arbitrary action of the sheriff in constituting himself court and jury for determining that title had passed from Zeigler to Dalby by the defective foreclosure proceedings.

To my mind the legal situation is a simple one. When the sheriff is called upon to seize real estate, he must do so if the title stands of record in the name of the defendant in writ. Such a thing is entirely possible as that real estate should be liable to seizure for the record owner’s judgment debts, although known by everybody not to belong in reality to this record owner.

Therefore the judgment appealed from was correct.  