
    
      ABAT vs. POEYFARRE.
    
    East’n District.
    
      July, 1820.
    Appeal from the court of the parish and city of New-Orleans.
    On a rule to show cause why an order suspending the sale of property taken on an order of seizure and sale, should not be set aside, the merits of the case cannot be gone into.
    The plaintiff obtained an order of seizure and sale of the defendant’s property, which was suspended on the answer of the latter, who therein put interrogatories, which were answered by the former, who on the next day, obtained a rule that the defendant shew cause, on the sixth day then following, why the order suspending the sale should not be set aside. On the return day, the rule was set aside, “ the court being satisfied with the proof exhibited.”
    The defendant appealed, and the case was brought up on the agreement of the counsel of the parties, that the appeal was taken from the opinion of the parish court deciding this case, on the rule to shew cause, which point alone was submitted to the court.
    
      Grymes, for the plaintiff.
    The parish court did not err. The defendant, in the via executiva, must always be ready to maintain his opposition to the execution issued on a judgment, of which he cannot complain, since he has himself confessed it.
    
      In the present case, the defence rests on a fact, the knowledge of the plaintiff of certain circumstances which are alleged to give to the defendant some relief on principles of equity. He here probed the conscience of his adversary, without success. If he had witnesses, who may disprove the answer to his interrogatories, it was his duty to have them ready to depose, at the expiration of the period which was assigned him, and to have shown, by contradicting the plaintiff’s answer, that the order which he had obtained to suspend the sale, was not to be rescinded. This he neglected to do. He showed no cause, and the order was, therefore, correctly rescinded.
    
      Pierce, for the defendant.
    It is said that, in proceedings by the via executiva, the summary proceedings of the court a quo are authorised. Admitting that the laws of Spain do so, our mode of practice is exclusively our own, and the statutes regulating it embrace every possible case that may arise, and present to our tribunals the only legitimate rule of conduct.
    The parish court, from which this appeal is taken, is governed, in its mode of proceeding, by the act of 1805, regulating the practice of the superior court, in which it is enacted that all suits 
      shall commence by petition, &c. ; that the day of appearance, when the defendant resides in New-Orleans, shall be on the 10th day after the service of the petition, when he must file his answer, &c. ; that the defendant may subjoin interrogatories to his answer, of the pertinency or materiality of which the court shall judge, and, if approved, shall order them to be answered by the plaintiff within a reasonable time ; which answer shall be received as true, unless disproved by the oath of two witnesses, &c. ; and that the defendant shall have three days, after the plaintiff’s answer is filed, to except to it.
    These are matters of every day practice, and the subsequent course is well known. After the answer to the interrogatories, and the three subsequent days, for excepting to it are elapsed, the cause is considered as at issue, and is placed on the docket in its order, and is called and fixed for trial in its turn, at not less than a week beforehand, when the parties come into court with their witnesses, and the cause is finally adjudged.
    This statute, of 1805, applies to all suits, therefore, that one kind of cause should be distinguished and determined, in any manner different from all others, there should certainly be some statute or law authorising it. What is said in our laws, or code of actions of seizure on titles, amounting to confession of judgment ? They are not mentioned in our statutes ; but ourstatute. Civil Code, 460, art. 40, directs, that when the title amounts to confession of judgment, the creditor may on his oath that the debt is due, obtain an order for an immediate seizure of the said thing. This is all that is any where said concerning them, and the reason of this privilege is obvious : as the title amounts to a confession of judgment, he shall be entitled at first to proceed as if he had obtained a judgment by process of law. But though the title, upon which he prays a seizure, does amount to confession of judgment, yet there may be many good grounds of defence, which would not so be considered, had the judgment been obtained in the usual way ; because, then, all exceptions would have ben previously put forth, discussed and adjudged upon. How is the defendant to come in with his opposition ? The statute appears to have amply provided for such a case. The plaintiff cannot come into court in any other way than by petition, in this he prays that the property mortgaged may be seized and sold as upon a judgment. As the defendant has, in the eye of the law, confessed judgment, the judge may legally order that the usual proceedings upon a judgment may be had forthwith, to wit : seizure, appraisement and sale. But, as the plaintiff is obliged to commence by petition so is the clerk obliged to issue a citation to the defendant to appear and file his answer. His property being seized and about to be sold he will, as may be supposed, be in haste to file an answer within the legal delay ; but as he has, as it were, confessed judgment, by the character of the title, which he has given to the plaintiff, is his answer to be admitted of course ? No, for then there would be no virtue in the title given. Yet, on the other hand, as he has not had the same opportunity of making his exceptions, as if judgment had been obtained after a trial ; as it is only on a title, amounting to a confession of judgment, that the demand is instituted, and the defendant may have numeous causes of defence, such as that the debt is not yet due, and subsequent release, fraud, or, as in this case, an imperfect title. It must be left to the discretion of the judge, in examining his answer, to determine, if he has a good defence, and to admit his answer, if it contains sufficient grounds, and is supported by affidavit ; but this discretion, can only be exercised, as to admitting or refusing the answer 
      in toto, it cannot be halved or quartered, he cannot admit the answer, and order it to be proven, in less than the usual and legal term. If he does admit the answer, he brings the case within the statute of 1805 ; it is no longer a proceeding as upon confession of judgment, it is a suit between A. and B, as any other on the docket, and its course of proceeding, must hereafter be the same. By admitting the answer, the judge has said, as if in so many words, that there is sufficient cause, shown to him, why this title should not be considered as a judgment, entered up against the defendant ; for if he did consider it as such, he could not admit any answer, as it would be palpably a contradiction, there would be a contestatio litis and a judgment existing at the same time, between the same parties and for the same thing.
    Again, the defendant had by law a right to except to the answer of the plaintiff, at any time, within three days ? Can the cause be considered as at issue, until these three days have passed by ? And can the cause be fixed for trial, before it is at issue ?
    And if it could be fixed for trial, at the discretion of the judge, and out of the usual course, could it be, by a rule taken upon the defendant, to show cause, why the order suspending the order of sale, should not be set aside ? Was this a rule upon which to decide the merits of a cause, and finally adjudge it, if it could be adjuged at all, by any rule. If the petition or answer had required a jury, would the clerk have been authorised on such a rule being taken, to issue a venire to the sheriff, to summon a jury thereon. Even in the summary, mode of proceeding under the Spanish law, it may be required within the delay of ten days allowed, that each party should explicitly notify the other, a comparoitre, pour voir presenter, connoitre, et affirmer temoins, & c. O'Reilly's instructions, 10, art 7. no. 7.
    
    But this rule was taken upon the defendant, merely concerning the suspension of the order of sale, which he had obtained upon giving sufficient security, which if it had been rescinded, and the sale taken place, would in no way affect the merits of the cause, after being once at issue. It might proceed, notwithstanding the sale, through to the injury of the defendant.
    The defendant, therefore, avers : 1st. That his answer having been admitted, the cause is at issue, and must hereafter proceed, as all suits are directed to proceed by our statutes.
    2. That if it could be called up out of its course, it could not be, before the three days, allowed to the defendnat to except, had expired.
    3. Nor could the merits be decided, upon a rule to show cause, why an order suspending an order of sale, should not be set aside, as this question was every way foreign to the merits of the cause.
   Martin, J.

delivered the opinion of the court. The answer presented an issue for trial, and the defendant, on the plaintiff’s answer to his interrogatories being filed, had three days to except to it as insufficient. 2 Martin’s Digest, 162.

The issue was to be tried, in the same manner as issues in ordinary cases, and either party was entitled to a jury. Whether such cases are to be set down for trial, in their turn among all others on the docket, we find it unnecessary to determine : but, the law having made no provision for any other mode, the case must be set down for trial.

The present does not appear to us, to have been set down for trial. A rule to show cause why an order, suspending a sale, should not be set aside, is obtained when the plaintiff thinks it irregularly issued. On the argument, the merits are not enquired into, any more than on a rule to shew cause why an attachment should not be set aside. Taylor & al. vs. Hood, 2 Martin, 113. The grant of the order alone is considered, and it is clear that the opinion of the court does not put an end to the suit, if the order be not set aside. The case must then, undoubtedly, be set down for trial on the merits. If the order be set aside, it being the opinion of the court that it was irregularly obtained, it is done without pronouncing on the merits, or as in the present case, on the validity and force of the proof.

Admitting that the rule to shew cause was (as being directed to be tried summarily, and as such perhaps entitled to a preference) according to the plaintiff's counsel, a correct mean to set down the cause for trial, this was done prematurely. The defendant had two days farther to except to the answer to interrogatories and the case was not ripe for trial.

It is, therefore, ordered adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that the cause be remanded with directions to the court, to proceed to hear the merits of the cause, after it shall have been set down for hearing, and it is ordered that the plaintiff and appellee, pay the costs of this appeal.  