
    No. 5435.
    City of New Orleans vs. John A. Morris.
    A claim o£ ownership sot up by a third person to certain property sought to be attached in a suit, can not be adjudicated on a rule tried in vacation.
    APPEAL from tho Superior District Court, parish of Orleans. Hawkins, J.
    
      George 8. Lacey, for plaintiff and appellee.
    
      O. T. Budclecke, for Germania National Bank.
    
      B. B. Forman, defendant in rule.
   The opinion of tho court was delivered by

Morgan, J.

Two writs of fieri facias, which were the basis of tho garnishment process by which tho Germania National Bank was proceeded against, were offered in evidence on the trial in tho court below. Those writs are not in tho record. A writ of certiorari issued to cause the omission to be rectified. The writ failed.

Under these circumstances, we prefer, on our motion, to issue another writ ordering their production.

It is therefore ordered that a writ of certiorari issue to the clerk of the Superior District Court directing him to attach to the record in this case the two writs of fieri facias mentioned in the writ heretofore issued at tho instance of the appellants.

Spencer, J.

Tho city of Now Orleans having judgments against defendant for taxes, issued writs of fieri facias, and propounded interrogatorios to the bank as garnishee. After propounding the usual interrogatories touching indebtedness to the defendant, the following “fourth interrogatory ” is propounded:

“ Are you not the holder of four promissory notes of two hundred and fifty dollars each, dated fifteenth of November, 1873, payable respectively on the first of July, August, September, and October, 1874, to bearer, at bank, in New Orleans, signed John P. Becker, and indorsed, ‘ for collection, B. R. Forman, agent ?’

All the other interrogatories having been answered no, this one was answered: “ The bank has three such notes, which were deposited by B. B. Forman, agent; that since the sendee of the interrogatories, the note due first of July has been paid and proceeds placed to the credit-of B. R. Forman, agent, and this respondent has no knowledge whatever whether or not John A. Monis, the defendant in execution, has any right, title, and interest, directly or indirectly, in the said notes; and respondent knows no other owner of said notes than said B. R. Forman, agent.”

When this answer was filed, the city of Now Orleans, showing that the hank made garnishee admitted having three of the notes described in the fourth interrogatory, and without alleging that J. A. Morris, the defendant in execution, was the owner of these notes, or had any interest in them, obtained an order on the bank to show cause why it should not be condemned to deliver said notes, or their proceeds, into the hands of tlio sheriff.

The bank, answering this rulo to show cause, re-affirmed in substance its answers to the interrogatories, and set up further that one Mrs. Homen, and B. R. Forman, agent, had sequestered the notes on a claim of ownership, and asked to have Forman, the depositor of said notes, made party, and thereupon the court so ordered. Forman excepted to being made-party by motion, averring that his title to the notes could not be thus tried and questioned, and that this case could not be tried, heard, and determined at chambers and in vacation.

The court, notwithstanding, tried the rule on the eighteenth of July. 1874, made it absolute, ordering the garnishee to deposit the notes or their proceeds in the sheriffs hands, and dismissing Forman’s exceptions. From that judgment this appeal is taken.

The plaintiff, on trial, offered the two writs of fieri facias against Morris forming the basis of the proceeding in garnishment. The clerk certifies that these writs are lost or mislaid, and that after diligent search they can not be found, and therefore they are not copied in the record-. This court, our predecessors, ordered a writ of certiorari to issue, which failed. It, of its own motion, ordered a second writ, with same result. The case is now submitted to us. Plaintiff insists that the appeal should 'be dismissed, but we think this would be an injustice. We think that the judgment is, on the face of the record, a nullity. The court could not try and determine such a case as this in vacation. See 23 An. 483; Dixon vs. Judge, Opinion Book 43, page 90.

It is therefore ordered and decreed that the judgment appealed from be annulled and avoided, and this cause remanded to be proceeded with according to law, plaintiff and appellee paying costs of appeal.  