
    Livaudais v. Livaudais.
    An opposition by a third person will not lie, where the opponent claims to be paid by preference out of the proceeds of property sold under a fi. fa. in a suit between others, hut alleges, at the same time, the nullity of the judgment under which the sale was made.
    APPEAL from the Third District Court of New Orleans, Kennedy', J. The plaintiff having obtained a judgment against the defendant, and caused certain property to be sold under a fi. fa., one Thomas, a third person, filed an opposition, alleging that he was a judgment creditor of the defendant for a certain amount; and that he is entitled to be paid in preference to the plaintiff, out of the .proceeds of the property sold, on the grounds : first, that the judgment on which the plaintiff issued her execution was illegally obtained; secondly, that it was founded on promissory notes, the payment of .which could not be legally enforced against the defendant, nor against his property; thirdly, because neither the said judgment, nor the mortgage resulting from its being recorded, can in any way prejudice the rights of the opponent. The'plaintiff excepted to this opposition and prayed for its dismissal, on the grounds: 1. Because a third oppisition can only take place where the opponent alleges that he is the owner of the property seized, or that he has a privilege on the proceeds thereof ; and neither of these positions is assumed by the apponent. 2. Because, should the opposition be admissible, the grounds upon which it is founded are so vague and indefinite that the plaintiff cannot have come prepared to rebut the evidence, which it might suit the opponent to offer in support of his loose allegations.
    The judgment of the lower court was in these words :
    “A third opposition is allowed but in two cases: 1st. Where the third opponent is the owner of the thing seized. 2d. Where he has a privilege on it. C. P. arts. 397, 401. Athird opposition based on a superiority of privilege necessarily implies either a competition between valid subsisting privileges, or an assertion of a preference for a privileged debt over a mere ordinary dent. In such cases the third opposition admits the legality of the sale which has taken place, since its object is to carry off the proceeds of the sale; and the whole issue, after the third opponent has proved his claim, is, as to the rank of the claims. In this case the third opposition denies that Mrs. de Livaudais has either a privileged claim or a claim of any kind against the defendant Octave de Livaudais; in other words, it virtually alleges the utter nullity of her judgment so far as regards the third opponent; there is, therefore, no question of rank presented, and the legal grounds of athird opposition are wanting. Besides, if the judgment is a mere nullity as regards the third opponent, and it is on that ground alone that he could attack it in a direct revocatory action, can he be allowed at the same time to affirm it for his own benefit, by taking the proceeds of the sale which the judgment alone authorized ? I think not. In that respect the position of the third opponent in this case involves a contradiction. The judgment must stand, with all its legal consequences, in favor of the holder, until is is set aside; and that cannot be done by a third opposition, for the reasons already stated. Let the third opposition be dismissed with costs; reserving to the third opponent all his rights, if any he have, to be prosecuted according to law.” The opponent Thomas appealed.
    
      Legardeur, for the plaintiff.
    
      Maurian and Lambert, for the appellant.
   The jndgment of the court was pronounced by

Kino, J.

The judgment in this case is affirmed, for the reasons assigned by the district judge, with costs.  