
    Samory v. Hebrard & Al.
    Where interrogatories are propounded to garnishees under the 13th section of the Act of 1839, amending the Code of Practice, having for their object to set aside a sale of immovables property, as simulated and made in fraud of creditors, the city court of New Orleans is without jurisdiction of the subject matter. It cannot take cognizance of civil cases of a real nature. — C. C. 1965; 1 R. 435; 2 R. 99; 3 A. 651.
    The city court has express power to try suits on notes or obligations given for immovable property and slaves, and when a rescission of the sale is claimed in the defence.
    When title in. third persons is sought tobe divested bu the ground of fraud or simulation, recourse must be had to a direct action of revocation, where a jury may he had.
    The proceeding under the 18th section of the Act of 1889, is intended to get at property in the possession of third persons, belonging to the defendant, but cannot be substituted for the revocatory action.
    Appear from the city court of New Orleans.
    This is a proceeding against garnishees, under the 13th section of the Act of 20th March, 1839, to amend, the Oode of Practice.
    The plaintiff having obtained a judgment against one Francois Lafargue, caused execution to issue thereon which was returned no property found.
    He then presented Ms petition to the judge of the city court of New Orleans, in which he obtained his judgment, alleging, he had reason to he- [556] lieve that P. A. & A. Hébrard had property or effects in their possession or under them control belonging to the defendant Lafargue, and prayed that they be cited as garnishees to answer interrogatories touching the ownership of certain immovable property and a slave; and to state whether or not the sale of this property, made by the defendant Lafargue to them, the 18th March, 1839, was real or simulated; and also if they were indebted in any way or manner to Lafargue, to state it fully.
    The defendants excepted to answering the interrogatories, first, that it was seeking to set aside a sale of property, for a sum, far exceeding the jurisdiction of the city court; second, that it is a proceeding in the nature of a revocatory, and consequently a real action of which the city court was without jurisdiction; and third, that a direct action alone can he sustained to set aside a sale by authentic act.
    The exceptions were overruled, and P. A. Hébrard answered that he owed no money to nor was he indebted in any way to F. Lafargue. A. Hébrard made the same answer.
    There was judgment taking the remainder of the interrogatories for confessed, and against the garnishees for the amount of the plaintiff’s claim. They appealed.
    
      Pepin, for the plaintiff,
    contended that the 13th section of the Act of 1839, under which this proceeding is had, applies as well to immovable as movable property ; and in case the garnishee shall answer or confess that he has property or effects in his possession, or is indebted to the defendant against whom the plaintiff has obtained judgment, in any sum of money, the court will order him to deliver it up or pay it over in satisfaction of the demand against said defendant. See Code of Practice in relation to garnishees, arts. 262, 263 ; 5 La. Bep. 86.
    2.The plaintiff was not required to institute a revocatory action, as urged by the adverse counsel, as the law of 1839 gives a more simple and summary [657] remedy, and shorter mode of action. The act itself provides that the plaintiff can get at any property or effects of his debtor, in the hands of third persons, in the same manner as is provided in the ordinary cases of garnishees. The act in question is general, and in all cases proceedings under it can be as well carried on in the city court as in any other courts.
    
      Benjamin for the 'appellants.
    1. The city court of New Orleans has by law no jurisdiction of civil causes, of a real nature. Act of 19th February, 1825, sect. 3; 1 Moreau’s Digest, 345.
    2. The claim against P. A. Hébrard and A. Hébrard, is in its nature nothing more or less than a revocatory action to annul sales of real estate, as being simulated, and in fraud of• creditors. La. Oode, 1965, et seq.
    
    3. The revocatory action, when for real estate, is a real action, or at all events of a real nature. It is so classed in the civil law by all the authorities. See Justinian’s Institutes, lib. 4, tit. 6, sect. 6; Oode of Practice, 41, 12.
    4. That a revocatory action under our law, is a real action, when brought in relation to real estate, is shown conclusively by art. 1972 ; for if maintained, the judgment, according to that article, must be, that the contract be avoided, and the property restored, and applied to the payment of the claim of the complaining creditor.
    5. By the act constituting the city court, and the amendment thereto, (See Grenier’s Ed. of Oode of Practice, p. 261, No. 74,) the jurisdiction of the city court is limited to the sum of $1000, and that only in relation to notes, bills of exchange, and drafts. This action tends to declare null and void, as simulated and fraudulent, sales of real estate for $16,000 or $17,000.
    6. Even if the city court had jurisdiction, the law requires a direct action of nullity and avoidance to be brought; La. Oode. 1965, et seq.; in which parties would be entitled to a jury. The demand cannot be made [558] incidentally as in the present case, where a party would be deprived of his right to a jury.
    7. The action is prescribed. La. Oode, 1981, 1989.
    8. The 13th section of the Act of 1839, evidently does not apply to this case. Here the proceeding is not to get at property in our possession belonging to defendant, but to divest our title.
   Mokphy, J.

delivered the opinion of the court.

A fieri facias issued in this ease, and having been returned “ no property found,” the plaintiff filed a petition, propounding interrogatories to P. A. Hébrard and A. Hébrard, in conformity with the 13th section of the Act of 1839, amending the Code of Practice. All these interrogatories, with the exception of the last one, tended to establish the simulation of certain sales of landed property, and a slave, to the Hébrards. The latter excepted to the same, on the ground that this proceeding on the part of plaintiff, was in its nature and effects a revocatory action, of which the city court could not by law entertain jurisdiction. The exception having been overruled, they answered only to the last interrogatory, declaring under oath that they were not indebted to defendant in any sum of money, or in any way whatever. The judge, considering the silence or refusal of the garnishees to answer the other interrogatories as a confession of the facts therein stated, decreed them to pay the full amount of plaintiff’s demand, with interest and costs. The garnishees appealed.

The exception taken to these interrogatories appears to us well founded. Their manifest object was to set aside a sale of immovable property of considerable value, on the ground of its being simulated, and made in fraud of creditors. Leaving out of view the amount of the property, the city court was by law without jurisdiction of the subject matter thus sought to be brought before it. It cannot take cognizance of civil causes of a real nature. 1 Moreau’s Digest, 345. A revocatory suit, when brought in relation [559] to immovables or slaves, is a real action. If it be maintained, the judgment must be, that the contract be avoided, and the property restored and applied to the claim of the complaining creditor. La. Oode, art. 1972; Oode of Practice, arts. 41, 42. Had the appellants answered the interrogatories, by declaring under oath the sales to be real, and for a bona fide consideration, the plaintiff could not before the city court have exercised his privilege of controverting their answers, and proved simulation and fraud; otherwise that court would be called upon to try incidentally, and without any necessity, an issue which could not by law be directly placed before it. True it is, that when the defence set up in that court in an action on a note or other obligation, is that such obligation was given for real property or slaves, and a rescission of the sale is claimed for any of the reasons provided for by law,, the judge can take cognizance of and determine such defence. This power has been given by an express law, because it was absolutely necessary to enable that court to pronounce judgment in cases coming clearly within its jurisdiction; but here the plaintiff, having obtained his judgment, had other courts of competent jurisdiction open to him to attack any sales made by his debtor. When title in third persons is sought to he divested, recourse, must be had to a direct action of revocation, in which the parties would be entitled to a jury.

The proceeding under the Act of 1839, was intended to get at property in the possession of third persons, belonging to a defendant; but it cannot be used as a substitute for a direct revocatory action, the object of which is to test the validity of titles to property in such third persons. By such a proceeding, the latter cannot he deprived of any means of defence or advantages they would have in a direct action brought against them. La. Oode, 1965, et seq.; 5 Martin, N. S. p. 361; Barbarin v. Saucier, 2 La. Rep. 214 ; 9 Id. 379.

[560] It is therefore ordered and decreed, that the judgment of the city court he reversed, and that ours he for'the garnishees, with costs in both courts.  