
    No. 6551.
    Hart & Hebert, in Liquidation, vs. Pike, Brother & Co.
    In executory proceedings, the notieeotiacU5mo.1t, to ho served on the defendant previous to the soizure oi the properly, must be signod and issued by-the cleric, and not by the sheriff.
    APPEAL from the Fifth Judicial District Court, parish ol East Raton Rouge. Dewing, J.
    
      S. P. Oreves and II. If. Favrot, for plaintiffs and appellants.
    
      Thomas P. Dupree and Ilerron cC Bird, for defendants.
   The opinion of the court was delivered by

Spencer, J.

Defendants took out executory process against certain' property in the city of Baton Rouge, mortgaged by Hart & Hebert, a few days after the latter had made an assignment of their effects to their creditors.

The plaintiffs, representing the creditors, took out an injunction against tlie process, and allege many grounds therefor. It is only necessary to notice one of them. . They allego, and such is the admitted fact, that the-writ of seizure and sale was issued without tlio cleric’s having previously issued the notice of judgment prescribed by articles 735 and 730 of .tlie Code of Practice. That no such notice was over issued by the clerk, and none over served on the defendants in the process. It seems that on the day the writ came into tlio sheriff’s hands he gave a written notice to defendants that unless tlie amount be paid in throe days lie would seize and sell tlie mortgaged property.

This notice by the sheriff was not the notice required by law. It clearly results from the provisions of the Code of Practice, articles 735- and 736, that the preliminary notice therein provided for must be issued by the clerk. Tlio writ can not legally issue until that notice has been given, and the sheriff, therefore, can not have the power to giyo such noticej because ho derives liis whole knowledge from the writ, which can not legally reach him. until this notice is given and tlio delays expired. The judgment of the court a qua dissolving the injunction with three hundred and fifty dollars damages is erroneous. It is therefore ordered, adjudged, and decreed by the court that tlio judgment appealed from be annulled and avoided, and it is now ordered that the injunction sued out by plaintiffs- bo sustained and jierpctuated, defendants heroin paying; costs of both .courts.

On Application eor Rkhearinq.

The opinion of the court was delivered by

Spencer, J.

¥e held in this case that the “notice to the debtor,” prescribed by articles 735 and 730 of the Code of Practice, should bo issued, and signed by the clerk.

We have carefully reconsidered that opinion, and find that we must adhere to it.

Tho order or decree of the judge making tlio mortgage executory ia so far a judgment that it may be appealed from, and may bo enforced by execution quoad tho mortgaged property. It is a judgment, too, rendered ex parte, and without the previous citation of tho debtor, and it would bo a strange omission in tho law if no notice of this judgment was required to bo given the debtor before its execution. Wo find that by article C21, Code of Practice, even when the debtor has been cited and lias made default, a judgment confirmed against him in an appealable case can not lie executed until notice of judgment has been given him. Tho Code of Practice in this ease does not say by whom this noticie shall be issued and served; yet we apprehend that no one will dispute that tho clerk of tho court is tho proper officer to issue it. Why'? Simply because being the only legal custodian of the records, he is tho only person who can certify what that judgment is. So in the ease of executory proceedings, he is the custodian of the record, of tho judgment, and, ex necessitate, is the proper officer to issue the notice of it. Tho clerk issues the. notice, and tlio sheriff serves it.

Nor is this doctrino new to tlio jurisprudence of Louisiana. On the contrary, it plainly flows from both tho text and spirit of tho Code, and has been hold to be the true doctrine by this court in a number of cases. In Nash vs. Johnson, 9 R. 12, this court said: “Article 731, Codo of Practice, says that when the creditor‘is in'possession of an act importing a confession of judgment lie may proceed against the debtor or his heirs without a previous citation, and cause the property to lie sold; but in obtaining this order of seizure, says article 735, it shall suffice to give throe days notice to tho debtor, counting from that on which the notice is given, if lie resides on the spot, adding a day for every twenty miles between tho place of his residence and that of tho judge to whom the petition has been presented. This notice, says this court in 7 Martin, N. S. 514, is the one the sheriff is to give before seizure; but it is not said that it must be a notice signed by the sheriff, but one served or giveti by him. It has been held in 15 La. 434, that it is not necessary in executory process to servo a copy of the pc tition on tho debtor, but that ho must have notice; and it appears to ns very proper that such notice should be made out by the cleric, with whom the petition is filed, and that it should bo served by the, sheriff. To obtain the order of seizure, it is necessary to give notice, says the Code of Practice, that order or writ is issued by tho clerk on tho mandate or judgment given by tho judge, and it is not possible for the sheriff to give notice except by a notice signed by the cleric, he alone having in his possession all tho proceedings and the order or decree directing the writ to issue. This notice is something like a liotieo -of judgment, and the delay accorded to the debtor before the issuing of the writ is to enable tho party to apply to the judge for an appeal or to adopt some other mode of redress in ease the proceedings are irregular or unlawful.”

These views, so strongfy expressed by our predecessors, meet our entire approbation, and give, wo think, the .true interpretation of our law. Wo do not share tho apprehensions of defendants’ counsel, as to tho disastrous effects of this doctrine in unsettling titles in districts where a different practico has prevailed.

Wo have lately held that where tho notice was signed and served by the sheriff, he having tho writ in his hands ah the time, it was not such an irregularity as would vitiate the sale. In tho ease above, quoted (9 R. 12) it is said: “ It is possible that the notice, would bo good if signed by the- sheriff, after an order or writ of seizure was in his hands; but until ho gets such writ he has no authority to act, and can only serve tho notice given him by the clerk.”

We therefore conclude that the proper mode is for the clerk to issue tlic notice and the sheriff to servo it; and that its non-observance is good ground of injunction.

The rehearing asked for is refused.  