Moncure v. Zunts

ERROR to the Circuit Court for the District of Louisiana; the case being thus:

Deas obtained a judgment in the court below against Moncure and others, heirs of Doyal, and, under an execution issued on this judgment, certain real estate was sold lying in the parish of Ascension, of which Zunts, the present defendant in error, became the purchaser. The laws of Louisiana authorize a proceeding by a purchaser at judicial sale somewhat in the nature of a bill of peace to quiet and confirm the title acquired at the sale. This proceeding is called a monition, and is instituted in the same court in which the original judgment was rendered, by a publication warning all persons interested to come forward and show cause, if any they can, why the title acquired by the sale should not be confirmed.

In response to this monition issued by Zunts, the present plaintiffs in error, Moncure, Dunlop, and others, appeared in court and opposed the confirmation on several grounds which attacked the validity of the sale for want of confor mity in the marshal's proceedings to the laws of Louisiana The issues raised by this opposition were tried by a jury and several bills of exceptions were taken, which presented the points relied on by the plaintiffs in error, to reverse the judgment of the Circuit Court confirming the sale.

The most important of these related to the advertisement of the sale, and to that one this court limited its observations.

The code of procedure of Louisiana originally provided that such sales should be published in the English and French languages in a newspaper of the parish where the seizure was made. Subsequently the law was altered so as to dispense with the publication in French, unless the defendant should request it. But, from this amendment, the parish of Ascension and some other parishes were exempt. So, that there was no question but that the law of Louisiana, in regard to land sold under executory process in the parish of Ascension, required a publication in a newspaper of that parish, in both French and English, as a preliminary to the sale. In the case under consideration no publication was made in the parish of Ascension, though there was a newspaper published there in both the English and French languages, and the only notice given of the sale was an advertisement in the English language, made in May, 1868, in a certain newspaper of New Orleans, such as is spoken of hereafter.

There seemed, therefore, to be no reason to doubt, if the original judgment in this case had been rendered in a State court of Louisiana, and the proceeding which the court was now considering had been there tried, that the sale could not have been sustained. And the question which this court was called on to decide was, whether the departure of the marshal from the requirements of the Louisiana code in making the sale under executory process of the Federal court was sufficient in this case to invalidate the sale.

The matter depended upon certain acts of Congress. Thus the act of May 26, 1824, to regulate the mode of practice in the courts of the United States for the District of Louisiana, declared

'That the mode of proceedings in civil causes in the courts of the United States that now are, or hereafter may be, established in the State of Louisiana, shall be conformable to the laws directing the mode of practice in the District Courts of said State: Provided, That the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the State courts, and make by rule such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such should exist, between such State laws and the laws of the United States.'

The seventh section of an act of March 2d, 1867, it was contended below, however, had repealed or modified this former practice act. This act of 1867 was an act making appropriations for sundry civil expenses of the government for the year 1868. Among these expenses were the publication of the laws of Congress in newspapers of each State, the publication of advertisements of the departments, and other matters in the District of Columbia, and the laws concerning the army and navy in the United States Army and Navy Journal. The seventh section of this act authorized the clerk of the House of Representatives to name one or more newspapers published in each of the eleven States which had been in insurrection (naming them) in which the treaties and laws of the United States should be published, and in some one or more of which

'All such advertisements as may be ordered for publication in said districts by any United States courts or judge thereof, or any officer of such courts, or of any executive officer of the United States, shall be published, the compensation provided, and other terms of publication shall be fixed by said clerk, at a rate not exceeding two dollars per page for the publication of treaties and laws, and not exceeding one dollar per square of eight lines for the publication of advertisements, the account for which shall be adjusted by the proper accounting officers and paid in the manner now allowed by law in like cases.'

The law further provided that the clerk of the House should give notice to the heads of departments and each judge of the United States courts of the paper selected, and that thereafter it should be the duty of such executive officers to furnish to such selected paper only an authentic copy of the publications to be made as aforesaid.

The court below, contrary to the request of the parties opposing the confirmation of the sale, who asked for the opposite construction, charged that an advertisement of the property sold by the marshal in newspapers published in New Orleans, selected under the act of Congress just quoted, by the clerk of the House of Representatives of the United States, was a sufficient advertisement in a newspaper, under the law.

And it was recited in the bill of exceptions that it appeared from the evidence that it had been the practice of the marshal to make this kind of advertisement since that act of Congress.

Mr. P. Phillips and Mr. Conway Robinson, for the plaintiffs in error, contended:

That the legal advertisements spoken of in the act of 1867 were such as might be ordered for publication by any United States court or any judge or other officer thereof; but that the advertisement, under an execution for the sale of property, was not made by order of the court, or by any officer thereof, but was required by law, and was not dependent on any authority less than the law itself. It was, therefore, not within the letter of the statute; still less was it within its spirit when it was shown that the advertisements intended were those for which the public treasury was responsible.

Mr. T. J. Durant, contra, argued in support of the views of the court below:

1. That the seventh section of the act of 1867 had repealed or modified the old act of 1824. It was on the very subject of court advertisements in the Federal districts. An advertisement for a marshal's sale, in a Federal district, is an advertisement ordered for publication in that district by a United States court, by the judge thereof, and by one of its officers, to wit, the marshal. It thus falls, by a singular multiplicity of descriptions, within the very words of the act. The act of 1824, requiring, as it does, uniformity with State practice, cannot stand with the act of 1867, presenting a departure from it. The adoption, in 1824, of the Louisiana mode of advertising property for sale under ''fi. fa.'', did not prevent Congress from abrogating that adoption in 1867, when, in the judgment of the legislative branch of the government, a new rule for advertising judicial sales under process from the United States court in Louisiana became necessary. The Federal, and not the State law, was supreme.

2. The bill of exceptions stated that the advertisement conformed to the existing practice of the court; to that which had in fact become the rule of the court, and under this rule the marshal acted.

Reply:

The utmost duration of the practice set up can only extend from the 2d March, 1867, the date of the act, to May, 1868, when the advertisement was made. Will the court hold this pretended practice of a year sufficient to overturn the law settled from the foundation of the State government? Mr. Justice MILLER delivered the opinion of the court.