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United States Supreme Court

43 U.S. 61

McCollum  v.  Eager

This is a writ of error to the Circuit Court for the eastern district of Louisiana.

Under the mode of proceeding in Louisiana, a petition was filed by the defendant in error, in the Circuit Court, against Williams and Rightor, on a promissory note given by them for the payment of $5,000 with interest, &c. And no answer being made, a judgment was entered, by default, against the defendants. An execution was issued, which was levied on a certain tract of land which, on being offered for sale by the marshal a second time, was purchased by John McCollum the plaintiff in error, on a credit of twelve months. For the payment of the purchase-money at the time stated, McCollum gave bond and security.

At the expiration of twelve months, under the law of Louisiana, an execution was issued on the bond, which has the effect of a judgment. A levy was made on certain slaves, by the marshal, who returned that after giving notice of sale, all proceedings were stayed on the execution by injunction.

The injunction was obtained by the plaintiff in error on petition, representing that the title to the land purchased by him at marshal's sale, and for which the above bond was given, had failed; and that he had been evicted from the premises. That certain irregularities had taken place in the sale, &c. An injunction was prayed for, and that the bond might be decreed to be cancelled.

On the 14th of February, 1842, 'the court ordered, adjudged, and decreed, that the injunction granted in this case be dissolved with 20 per cent. damages, 10 per cent. interest, and $300 amount of fees of counsel employed, to be allowed as special damage, and for costs of this suit.'

A motion is made to dismiss the writ of error, on the ground that it does not lie in the case.

The proceeding on the bond may have been authorized under the Louisiana practice, there being no distinction in the courts of that state between a proceeding at law and in chancery. But the relief sought against the bond is mainly appropriate to a chancery jurisdiction, where such a jurisdiction is established. This being the case, the proceeding at law, though conformable to Louisiana practice in the state courts, was wholly irregular. In the federal courts, the jurisdictions of law and chancery, in Louisiana and in all the other states, are distinctly maintained.

If this be viewed as a chancery proceeding, a writ of error does not lie, for a decree in chancery can only be removed to this court, from the Circuit Court, by an appeal. But an appeal will only lie from a final decree; and the decree in this case was not final, as the bill was not dismissed. The writ of error is dismissed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and it appearing to the court that the case is removed here by a writ of error to an interlocutory order or decree in chancery, it is, therefore, now here ordered and adjudged by this court, that this writ of error be, and the same is hereby dismissed; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to proceed therein according to law and justice.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).