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Barnett and Eliza Levy, Plaintiffs in Error, v. Edmund and David Fitzpatrick, Defendants in Error U.S. 167 (1841)

handle is hein.slavery/ussccases0339 and id is 1 raw text is: JANUARY TERM, 1841. BARNETT AND ELIZA Lmvr, PLAiNTIFs N ERnoR, -v. EDxuND AND DAVID FITZPATRICK, DEFENDANTS IN ERBOR. The mortgagees, in Louisiana, filed, in the Circuit Court, their petition, stating the non-payment of the debt due on their mortgage, and that by the laws of Louisiana, the mortgage imports a confession of judgment, and entitles them to executory pro- cess, which they prayed for. Without any process requiring the appearance of the mortgagors, one of whom resided out of the state, the judge ordered the eiecutory process to issue. Two of the defendants, who were residents in the state, prosecuted a writ of error on this order, to the Supreme Court of the United States. Held, that the order for executory process was not a final judgment of the Circuit Court, on which a writ of error could issue. By the eleventh section of the judiciary act of 1789, no civil suit shall be brought before the Courts of. the United States, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. The construction given to these provisions, by this Court, is, that no judgment cat be rendered by a Circuit Court against any defendant, who has not been served with process issued against his person, in the manner pointed out; unless the defendant waive the neces. aity ofsuch process, by entering his appearance to the suit. The case of Toland v. Sprague, 12 Peters, 300, cited. As the debtors were not before the judge, in the Circuit Court, when he granted, in this case, the order for process, the order for the process could not be regarded as a final judgment, from which a writ of error could be prosecuted, under the 22d section of the judiciary act of 1789. By the laws of Louisiana, three days' notice of a sale under such process was required to be given to thi debtors, or the sale would be utterly void. Upon that notice, the debt6rs had a right to comeinto Court and file their petition, and set up, as matter of defence, every thing that could be assigned for error in a Court of Errors; and they could pray for an injunction in the Circuit Court, to stay the executory process, till the matter of the petition would be heard and determined. In the proceeding on the petition and answer, the whole merits of the case between the parties, including the necessary questions of jurisdiction, could be heard, and a final judgment rendered. Articles 738, 739, of the Louisiana Code of Practice. IN error to the Circuit Court of, the United States, for the Eastern District of Louisiana. In the Circuit Court, Edmund and David Fitzpatrick, ciizens of the state of Virginia, filed a petition, stating that the plaintiffs in error, Barnett and Eliza. Levy, citizens of Louisiana, and resi- dent in the Eastern District of Louisiana, were indebted to them,

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