#### Rosann FAYARD v. Frank A. CELESTAN.

No. 3976.

Court of Appeal of Louisiana. Fourth Circuit.

Nov. 3, 1969.

*796Louis C. Philips, New Orleans, for plainti f f-appellee.

Joseph Meyer, Jr., New Orleans, for defendant-appellant.

Before HALL, REDMANN and BAR-NETTE, JJ.

ON MOTION TO DISMISS

HALL, Judge.

Rosann Fayard, appellee herein, filed this motion seeking dismissal of a devolu-tive appeal taken by appellant, Alma Belcher Celestan, from a judgment denying her application for a preliminary injunction enjoining the sale under executory process of certain mortgaged property.

The record reveals the following pertinent facts:

Rosann Fayard as holder and possessor of a certain promissory note payable to bearer executed by Frank A. Celestan and Alma Belcher Celestan and secured by mortgage on certain property situated in the City of New Orleans, brought foreclosure proceedings thereon *via ejecutiva.*The order for executory process was duly signed and a writ of seizure and sale was issued. Subsequent to the issuance of the writ and the service of the notices of demand Alma Belcher Celestan filed a petition in which she sought to enjoin the sale alleging failure of consideration, fraud, and further alleged that Rosann Fayard was not the true owner of the note.

The seizing creditor filed certain exceptions to the petition for injunction which were maintained by the Trial Court but subsequently overruled by the Supreme Court which remanded the case for trial. See the opinion of the Supreme Court reported in 253 La. 708, 219 So.2d 504.

Pursuant to remand the matter was heard on the rule nisi and resulted in a judgment dated May 2, 1969 denying the preliminary injunction.

On June 17, 1969 Alma Belcher Celes-tan appealed devolutively from the judgment of May 2, 1969. The record on appeal was lodged in this Court on September 23, 1969. In the meanwhile the Sheriff proceeded with the advertisement of the property pursuant to the writ of seizure and sale and on July 31, 1969 the mortgaged property was sold at public auction by the Sheriff and was adjudicated to High-pockets, Inc. The Sheriff’s deed was executed on September 4, 1969 and duly registered in the Conveyance Office on September 4, 1969 and recorded in the Sheriff’s Deed Book on September 12, 1969.

Appellee, Rosann Fayard, bases her motion to dismiss on the ground that since the sale has already taken place all matters presented by this appeal are now moot.

The identical question posed by this motion to dismiss has been decided by our Appellate Courts on numerous occasions. Some of these decisions are cited in the following excerpt which we quote from the decision of this Court in Hibernia National Bank in New Orleans v. Mary, 174 So.2d 200 (writ refused 247 La. 1084, 176 So.2d 144):

> “The only question presented by the appeal was whether the trial judge properly refused to grant the preliminary injunction in arrest of the sale, and whereas the Sheriff acting under the order of seizure and sale, has sold the mortgaged property, the question whether there was error in the refusal to grant the preliminary injunction has become a moot one. This court could render no decree annulling the sale of the mortgaged property. Therefore, the motion to dismiss the appeal must prevail. Walters v. Childers, 214 La. 531, 38 So. 2d 160; State v. Mutual Inv. Co., 214 La. 356, 37 So.2d 817; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660; Unity In*797dustrial Life Insurance Co. v. DeJoie, 197 La. 38, 200 So. 813; Wetherbee v. Lodwick Lumber Co., 194 La. 352, 193 So. 671; Bank of La Fourche v. Barrios, 167 La. 215, 118 So. 893; Gouaux v. Lockport Central Sugar Refining Co., 156 La. 889, 101 So. 255; Ouachita National Bank v. Shell Beach Const. Co., 154 La. 709, 98 So. 160; RDM Corporation v. Macaluso, La.App., 134 So.2d 127.” • • - .-

Since the sale has already taken place there is no order or judgment this Court could render which would grant appellant the relief she seeks or undo that which has already been done.

However, in her opposition to the motion to dismiss appellant alleges that the foreclosing creditor, Rosann Fayard, was merely a nominal party in these proceedings, and that the real party who owned the mortgage was Highpockets Syndicate and that Highpockets, Inc. to whom the property was adjudicated at the Sheriff’s sale is the successor of Highpockets Syndicate. Appellant takes the position that the sale therefore results in the property being conveyed to the original plaintiff and that there being no innocent third party to protect, the Court could order the property held by Highpockets, Inc. until a final determination of this appeal. Assuming arguendo the correctness of appellant’s factual allegations we still could not render the order suggested by appellant for to do so would be equivalent, in effect, to converting this devolutive appeal from the refusal of a preliminary injunction into a suspensive appeal from the order of execu-tory process, and moreover to do so without bond.

The thrust of appellant’s argument is that no innocent purchaser will be harmed by the order suggested by her. However, it is firmly established in the jurisprudence that the validity of a judicial sale under a judgment of Court of competent jurisdiction is not affected by the subsequent reversal of the judgment on devolu-tive appeal, and such rule applies even if the property is purchased by the judgment creditor. See discussion of this matter in Wetherbee v. Lodwick Lumber Co., Inc., 194 La. 352, 193 So. 671, 679.

For the foregoing reasons the motion to dismiss is sustained and the appeal is dismissed.

Appeal dismissed.

REDMANN, Judge

(concurring).

Appellant’s memorandum opposing dismissal apprehends first, that dismissal means the end of all hope for righting alleged wrong; and second, that appellant’s poverty and consequent inability to post a suspensive appeal bond deny her meaningful access to the courts in contravention of La.Const. art. 1 § 6. I believe these concerns justify additional response.

First, the present appeal is not from a final judgment which would end the litigation, but only from an interlocutory judgment. Even if the property were not yet sold and we decided preliminary injunction should issue, that would not have been a final judgment ending the matter; and on the trial on the merits in the trial court further evidence could be introduced and appellant could still have lost; see American Bakeries Co. v. Louisiana State Bd. of Health, 185 La. 959, 171 So. 90 (1936). So all our dismissal decides is that the incidental question, whether preliminary injunction should have issued on the record on rule, cannot now be decided. It does not mean that the substantive rights of appellant cannot be adjudicated by trial on the merits in the trial court. Whether appellant’s petition for injunction can now be amended to allege and pray for damages or other relief, or whether a new suit must be filed, we cannot now decide. But we do decide that the question whether she is entitled to damages or other relief cannot, in view of the right of both parties to add to the record at trial on the merits, be decided on the record on appeal *798now before us: the question of the merits has never been adjudicated and is not adjudicable from the record now before us; see Walters v. Childers, 214 La. 531, 38 So.2d 160 (1948).

Second, poverty may mean inability to post a suspensive appeal bond, but the ability to post such a bond would not necessarily prevent sale anyway, as in Hibernia Nat. Bank of New Orleans v. Mary, 167 So.2d 200 (La.App.1964), cert. denied 246 La. 876, 167 So.2d 826 (1964). And another phase of the Mary case, 174 So.2d 200 (La.App.1965), cert. denied 247 La. 1084, 176 So.2d 144 (1965), shows a sus-pensive appeal from denial of preliminary injunction will equally be dismissed as moot when the sale sought to be enjoined has occurred.

Even a suspensive appeal from the order for seizure and sale may still bring nothing before the appellate court, if the defense is not evident from the creditor’s petition and exhibits. The 1960 Code of Civil Procedure has perhaps still not solved the inherent problems, noted in Kreher v. Theisman’s Estate, 125 La. 600, 51 So. 656 (1910).

Our Supreme Court has said, in Succession of Levins, 184 La. 825, 167 So. 454, 456, (1936):

> “ * * * In Ouachita National Bank v. Shell Beach Construction Co., 154 La. 709, 98 So. 160, and in Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 160 La. 839, 107 So. 593, we recognized that a devolutive appeal (or even a suspen-sive one) from an order refusing a preliminary injunction, although allowed by law, was neither an adequate nor an appropriate remedy to obtain the relief sought; and we pointed out that the only effective relief to be obtained in such cases was by application to this court under its general supervisory jurisdiction. * * * ”

It would be unjust to attempt to render a final judgment, without the consent of both parties, on this appeal from an interlocutory judgment refusing incidental relief which is now impossible; and I concur that this appeal must therefore be dismissed.