Levy v. Weber

Citations

• 8 La. Ann. 439

Syllabus

<p>Where an amended petition, which changed materially the action, was never served on the defendant, and its allegations never put at issue—it will not be considered as constituting any part of the pleadings.</p> <p>In suits instituted by plaintiffs against one^ Weber, an attachment was levied on a lot and buildings in possession of defendants. Defendants intervened, and claimed the property, by purchase, from Weber. Plaintiffs answered that the sale to defendants was fraudulent and simulated. Judgment was rendered in favor of plaintiffs for the amount of their claims, “with privilege on the property attached.” Execution was issued, and from the Sheriff’s return it appeared that the property attached was adjudicated to the plaintiffs. Defendants refused to give up the property, and this action was brought for property.</p> <p>By the Court: It does not appear that either of the defendants was ever notified of the sale, and as. the plaintiffs allege, they have continued to occupy the premises since the sale. It must be conceded that the proceedings in those suits were exceedingly loose and irregular. There is nothing in the record which shows that the claim of the intervenor was adjudicated upon, or that it was abandoned; neither does it appear that the intervenor had any knowledge of the judgment rendered against her vendor, recognizing the attaching creditor’s privilege on the property. In the absence of such proof, and in view of all the circumstances disclosed by the record, it is clear that the rights of the intervenor must stand unaffected. So thought the District Judge, for his judgment was chiefly based on the ground that the plaintiffs were bound to resort to the revocatory action.</p>