WILLIAMS vs. KELSO, 7 La. 406

Bullard J., delivered the opinion of the court. This is a possessory action, in which judgment being rendered on a verdict against the defendant, he appealed.

The appellant relies, principally for a reversal of the judgment, on the ground, that both the petition and judgment are so vague and uncertain, that ño writ of possession can be issued and enforced, without leaving to the clerk and the sheriff, a discretion’not given them by law- The petition sets forth that the plaintiff has been in quiet possession as owner, for more than one year, of a tract of land, containing about four hundred and thirty-five arpents, having a' front of about ten arpents on the Bayou Robert, it .being the same formerly owned by Job Ruth.

He states, that his possession of a part of the premises, within his clearing and actual cultivation, has been recently invaded by the defendant. He prays that he may be restored to his possession of so much of said premises as were in his possession, and has been forcibly taken by the defendant.

The verdict was a general one in favor of tire plaintiff, and assessed his damages at six and a fourth cents; and the judgment pronounced thereon, was, “thatthe plaintiff have judgment against the defendant, for the possession of the land sued for, and that he be restored to, and quieted in the possession thereof.” execution must pursue the .pdgThe writ of ment; imtrif die uncertain, itmay he rendered certain t>y reference t0 ^rStfashÍriff, a copy of the copy“e“of the ^fersmustaccompany the that’ the officer m-iy n.ot Veims_ taken in the premises of whic1» he is to give possession, 111 a actíonj wíien ,t]ie Pre_ mises m contest are so vaguely pfladin^s ’“that any° certainty, and judgment are piain’tiffreVov'er possession of the sited for,” they will be set being aside t00 TO an<1 *ande¿nSfor re" new trial, The contest appears to have related to a very small part of 11 j i. the land possessed by the plaintiff, so trifling indeed in extent, that without being cumulated with a demand for damagi could hardly form the object of an appeal to this court.

The general rule, that the writ of execution must pursue the judgment, will not be disputed. If the judgment be in be rendered certain, by itself, vague and uncertain, it may reference to the pleadings. 3 Martin, N. S. 7.

In a case like this, the Code of Practice provides, articles 630 and 631, that the writ of possession shall be directed to the sheriff, with a copy of the judgment, and even a copy of the petition to which it refers, to the end that the sheriff may not be mistaken concerning the nature of the estate and appurtenances, The law, therefore, of which he is to give possession. ........., ___________ • 1 * . . ’ requires, at feast a reasonable certainty, and never intended that the rights of parties after a judgment pronounced, should depend, at least, upon the discretion of the sheriff.

Sup-A . 1 . 1 pose in this case, the writ t.o issue, with a copy of the petition and a copy of the judgment. The sheriff, it appears to us would be greatly at a loss how to proceed. He would be compelled to apply for information to some body. Is he to summon witnesses, or address himself to the parties! In either case, the cause is to be tried over again by the officer sent to execute the judgment of the court. ‘ -it _ _ _ * »

To this, it is answered, that the defendant ought to have excepted to the petition, as too vague and uncertain, and that he is precluded by the judgment, and that he has no right to complain that the judgment cannot be executed for uncertainty. That he might have declined answering to the merits, until the cause of action was more explicitly set forth, may be true, but it does not, in our opinion, follow, that, when that uncertainty is not cured, either by the verdict or the judgment, he is bound to submit without objection.

Parries have a light to require their rights to be adjudicated upon in gucq1 a mannerj as that the judgment rendered, may be a bar to a future action for the same thing, and, as will not necessarily expose them to the exercise of an arbitrary discretion on the part of the officer chargéd with execution. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled and reversed, the verdict set aside, and the cause remanded for a new trial, and that the appellee pay the costs of the appeal.