Marin v. Lalley/Opinion of the Court

As the Code of Practice requires that three days' notice be given to the debtor, and the judge is required to examine and decide whether the instrument unites all the requisites of the law necessary to authorize this summary proceeding, his decision is a judgment or decree, and an appeal lies from it; for it may be erroneously made on evidence not warranting the issuing of the executory process. It is in substance a decree of foreclosure and sale, which has repeatedly been held to be a final decree.

In the case before us it seems there was an appearance by the defendants, who filed their objections, which were overruled. Some further proceedings were had, and an appeal was allowed by this court to operate as a supersedeas.

If there were any doubt as to the finality of the original order, there can be none that it became final when the answer and objections were overruled. That order seems to have been made contradictorily with the debtors. Their opposition was overruled and their property decreed to be seized and sold to pay their debts. This case is quite distinguishable from that of Levy v. Fitzpatrick. In that case there was an order for executory process upon a mortgage where the debtors resided in different States, but having signed and acknowledged the mortgage, were presumed, according to the law of Louisiana, to be before the judge. This court would not entertain an appeal from a judgment rendered by the Circuit Court against any defendant who had not been actually served with process and had entered no appearance.

Incidentally, it is true, the court held the order not to be a final judgment according to the laws of Louisiana. But this was said of the original order, without the three days' notice and without any act on the part of the debtors.

In the present case the debtors appeared by their opposition, which was overruled and the original order made final. In such a case, the opinion of the court shows that the writ of error would have been sustained, apart from the objections growing out of the want of service of parties. We have held, however, in the case of Walker v. Dreville, that no writ of error lies, where the proceeding below, in its essential nature, is a foreclosure of a mortgage in chancery. If this case had been brought here by writ of error, as the case of Levy v. Fitzpatrick was, it must have been dismissed. The only proper mode of bringing it here was by appeal.

From what has been said it follows that the motion in the present case must be

DENIED.