Opinion
No. 29965.
On Motion to Dismiss Appeal June 17, 1930. On the Merits November 3, 1930.
Appeal from Civil District Court, Parish of Orleans; E.K. Skinner, Judge.
Mortgage foreclosure by the Orleans Homestead Association against Augustus G. Williams, wherein R.H. Gipson and another were made defendants in rule. Judgment making the rule absolute, and defendants in rule appeal.
Affirmed.
I.F. Williams, of New Orleans, for appellant Mrs. E. Gipson.
J.G. Dempsey, Jr., of New Orleans, for appellee.
On Motion to Dismiss.
The plaintiff, in foreclosure of a mortgage against defendant, caused certain real estate to be sold by the civil sheriff, at which sale R.H. Gipson for Mrs. E. Gipson became the purchaser. The usual 10 per cent. of the bid was deposited with the sheriff, but thereafter the adjudicatee failed or declined to take title and pay the balance of the price, although called upon by the sheriff to do so.
The plaintiff then filed a rule on the Gipsons to compel them to comply with the adjudication, or to show cause why the property should not be readvertised and sold for the account of the said adjudicatee and the deposit which had been made on the price should not be applied as provided in Act No. 316 of 1908.
An answer was filed to the rule, and, after hearing the rule, was made absolute, and the defendant in rule has appealed.
A motion to dismiss the appeal has been filed on the ground (1) that no suspensive appeal lies because no irreparable injury would be done the appellant by the sale of said property as ordered by the court and as directed by Act No. 316 of 1908, and (2) that said appeal is frivolous and without merit.
It is sufficient in answer to the first ground of the motion to say that the judgment of the court, though rendered on a rule, is a final judgment — it disposed of the entire matter then before the court, and from that final judgment the appellant obtained and perfected a suspensive appeal.
The right to a suspensive appeal from a final judgment is not dependent on the question of whether or not there will be irreparable injury suffered by the appellant.
The second ground of the motion is disposed of by the ruling in the case of Succession of Pavelka, 161 La. 728, 109 So. 403, and the case Typhoon Fan Co. v. Pilsbury, 166 La. 883, 118 So. 70, in which it was held that a motion to dismiss on the ground that the appeal is frivolous, or on grounds which involve an inquiry into the facts and merits of the case, will be denied and the case heard on the merits in due course.
The motion to dismiss is overruled.
On the Merits.
This case is fully stated in the opinion handed down by Justice THOMPSON herein on the motion of appellee to dismiss the appeal, and it is not necessary to restate it here. The case was submitted for decision upon the merits without argument, and appellee alone has filed a brief. The appeal is by the defendant in rule from the following judgment:
"After hearing the evidence, pleadings and argument of counsel, it is ordered, adjudged and decreed that the rule herein taken on the ___ day of December, 1928 be made absolute in the alternative and the Civil Sheriff of the Parish of Orleans is ordered to sell the property therein described at public auction after fifteen days notice and three advertisements according to law at the risk and for the account of said purchaser, Mrs. E. Gipson.
"It is further ordered, adjudged and decreed that the deposit of Eight Hundred Seventy-five Dollars ($875.00) now in the hands of the Civil Sheriff for the Parish of Orleans, be paid to the plaintiff, Orleans Homestead Association, to defray any loss that may be occasioned by such resale."
The regularity of the foreclosure proceedings are not questioned. The property was sold and adjudicated to Mrs. E. Gipson, through her disclosed agent, on August 11, 1928, and 10 per cent. of the purchase price of the property was deposited with the civil sheriff at the time of the adjudication. Mrs. Gipson failed to comply with the adjudication, although she was requested, in writing, through her agent, to do so, by the civil sheriff and by counsel for the plaintiff. A formal notice to her to comply with the adjudication was unavailingly served upon her agent, and on December 11, 1928, two months after the date of the adjudication a rule, in the alternative was filed herein, to compel compliance with the adjudication or for an order directing the civil sheriff to resell the property at the risk and for the account of the adjudicatee. The judgment appealed from was upon this rule, and the appeal merely calls for an interpretation of Act No. 316 of 1908. The title and Act follows:
"An Act
"In reference to sales of real property by Sheriffs and Constables in parishes containing two hundred thousand or more inhabitants in the State; to provide for the payment of the price and for deposit at the time of adjudication, and providing means for the collection of the balance of the price.
"Section 1. Be it enacted by the General Assembly of the State of Louisiana, That in all sales of real property by Sheriffs or Constables where the terms of sale are not fixed in the judgment or order of sale or writ, it shall be competent for the party provoking the sale or controlling the writ to instruct the Sheriff or Constable before the advertisement as to what portion of the purchase price shall be paid at the moment of adjudication, or in default of said instruction the Sheriff or Constable may fix the amount, which shall not in any case be less than 10 per cent. and this shall be stated in the advertisement.
"Section 2. Be it further enacted, etc., That said payment on account shall not be considered as earnest money and shall not give the purchaser the right to withdraw from the sale by forfeiting the deposit, but in the event that the property should have to be resold as hereinafter provided, said deposit shall be used to pay, as far as it may be necessary any loss that may have been occasioned by such resale, and the Sheriff or Constable shall pay said amount to the plaintiff in writ or order when ordered by the court and any action in relation thereto shall be summary and by rule.
"Section 3. Be it further enacted, etc., That unless within thirty days from the date of any sale made as aforesaid the entire purchase price be paid, then on demand of any party in interest the Sheriff or Constable shall advertise the property for sale after fifteen days' notice and three advertisements within that time, and the sale shall be at the risk and for the account of the former purchaser, and should there be any loss by reason of said second sale the first purchaser shall be liable therefor, but should the property at the second sale bring an increased price, the first purchaser shall have no right to any portion of said increase.
"Section 4. Be it further enacted, etc., Should the second sale result in no loss then on demand after the second sale has been completed and the entire price paid therefor the Sheriff or Constable shall return to the first purchaser the amount of his deposit.
"Section 5. Be it further enacted, etc., That all laws and parts of law in conflict with the provisions of this Act be, and the same are hereby repealed. Provided that this Act shall apply only in parishes in this State containing two hundred thousand or more inhabitants."
The several sections of the act are plain and unambiguous, they do not require interpretation, and no question is raised as to the constitutionality or legality of any provision of the act. Whether or not notice served upon a principal's disclosed agent is notice to the principal is of no consequence here, because there is no provision in the act requiring notice to an adjudicatee to comply with the adjudication.
For the reasons stated, we find that the judgment appealed from is correct, and it is therefore decreed that it be affirmed at appellants' cost.