FLINT, SYNDIC, &c. vs. CUNY ET AL., 7 La. 379

Martin J., delivered the opinion of the court. The facts of this case are correctly stated in the report of the decision of this court, when it was before us at the last term in October, 1833. See 6, La. Reports, 67. The judgment then appealed from, was reversed on the ground, that the District Court having already given a final judgment in the case, erred in re-considering that judgment, and rendering a second.

The defendants are now appellants from the first judgment, and the appellees have prayed the dismissal of the appeal, on the ground that it was taken after the expiration of more than a year after the rendition of the judgment appealed from. This objection, it is contended, is fatal, as the appellant was of full age, and a resident of the state. This court is of opinion, the appeal was well taken, and in time.

It appears by the proceedings of the District Court, after rendering and signing the judgment now appealed from, its execution was suspended, until the second judgment was get asj(je jn the fjvst appeal, as in case of an action of nullity. On the merits, it appears the verdict of the jury is, that the sale of the defendants be cancelled, rescinded and set aside, and that R. R. Cuny, be re-imbursed, the sum of one thousand nine hundred and fifty-eight dollars, by him paid to N. Cox, and the costs of the suit, of said Cox, against him. The jury also find the slave Antoine, to be the property of the defendent, R. R.

Cuny. On this verdict the court rendered judgment, cancelling and rescinding the sales, and that R. R. Cuny, recover from the plaintiff, as syndic for the creditors, the sum found by the jury to be due on account of the judgment debt of N. Cox. The latter part of this judgment is complained of. It is urged that the evident intention of the jury was, thatR. R. Cuny, has the same right to the sum found, that the plaintiff has to the property, the sale of which is cancelled, and that he is not to receive the sum from the syndic as an ordinary creditor.

This court is of opinion that the objection ought to be sustained. It is, therefore, ordered, adjudged and decreed, that the judgement of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the sale from S. C. Cuny to S. E. Cuny, and that from the latter to R. R. Cuny, complained of by the plaintiff, be can-celled and set aside, and that the plaintiff, recover from R. R. Cuny, all the property mentioned in the deed from S. E.

Cuny to him, dated May 17th, 1826, filed in this cause, and marked D, together with all the increase of the slaves mentioned therein, on the plaintiffs paying to him the sum of nineteen hundred and fifty eight dollars, and the costs of the suits of N. Cox, against the said R. R. Cuny, in four months from the date of this judgment, and not otherwise; and that the said R. R.

Cuny, retain the negro Antoine as his property, and that he be quieted in his possession, and title to said slave; and it is further ordered, adjudged and decreed, that the plaintiff shall not have execution on this judgment, nor otherwise disturb the defendant, R, R. Cuny, in the possession of the property, the sale whereof, is herein conditionally cancelled, and rescinded, nor any part thereof, until he shall have paid to him the sums herein before stated; the costs of this present suit on the appeal, to be paid by the plaintiff and appellee, and the costs in the District Court by the defendants.