Moise Scrantz proceeding by executory process seized two young mules and two cows as belonging to Du-hard Sonnier, his mortgage debtor, Paul Melancon and Ubald Melancon; claiming ownership and possession of the mules. Paul Melancon having purchased them from Duhard Sonnier and gave them to Ubald Melancon his son; intervened and opposed the sale.
The plaintiff, Scrantz, sometimes called Crantz or Krantz, resisted the claim of Ubald Melancon. on the ground that the two mules were covered by his chattel mortgage executed in authentic form, and recorded previous to the sale to Paul Melancon; the act of mortgage containing a stipulation that the property was not to be alienated to the prejudice of the act.
The district judge for written reasons filed in the record decided the case in favor of Moise Scrantz and refused and rejected the claim of Ubald Melancon and authorized the sheriff to proceed with the sale.
Ubald Melancon moved for and obtained an order for an appeal to this court.
The plaintiff, Scrantz, moved in this court to dismiss the appeal on the ground that it had not been taken in open court and that neither the motion nor the order granting the appeal directed that Moise Scrantz, the appellee, be cited to answer the appeal and that he was. not cited to answer same.
The minutes in the case bear out and substantiate the allegations in the motion to the effect that the appeal was not granted in open. court and the motion for appeal does not pray for, and the order granting the appeal does not direct that the appellee, Scrantz, be cited to appear and answer the appeal and he was not cited to answer same. The motion must therefore, prevail. C. P. Arts. 581, 582, (amended); 583 (amended) and 584; King vs. First Methodist Church, 137 La. 879, 69 South. 593; Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 South. 746. Louisiana Digest Vol. I pp. 449, Sections 354 and 355 and authorities there cited.
It is therefore ordered, adjudged and decreed that the appeal taken by Ubald Melancon herein be, and the same is hereby dismissed at his cost.