186 La. 1070

#### STATE ex rel. BUCKLEY v. DAUTERIVE, Sheriff.

No. 34283.

Supreme Court of Louisiana.

March 29, 1937.

*767Hugh M. Wilkinson, Harry Nowalsky, and George M. Leppert, all of New Orleans, for relator.

Leander H. Perez, A. Giffen Levy, and Rudolph M. McBride, all of New Orleans, for respondents.

ODOM, Justice.

At a tax sale held in the parish of Plaque-mines on Saturday, November 28, 1936, Warren Buckley bid in a large tract of land belonging to the Delacroix Corporation for the taxes, interest, penalties, and costs due thereon, and immediately handed to the sheriff and tax collector, L. D. Dauterive, his check for the amount, which check was accepted by the tax collector. About thirty minutes later and before the sheriff and tax collector had executed in favor of Buckley a tax deed, a representative of the tax debtor went' into the tax collector’s office and tendered to him a certified check for the full amount of taxes, interest, costs, etc., due, which check was accepted by the tax collector, who at once issued a tax receipt in the usual form and made a notation on the tax rolls that the taxes had been paid.

Subsequently Buckley, to whom the property had been adjudicated by the deputy sheriff in charge of the tax sale, requested the tax collector to execute in his favor a formal tax deed in confirmation of the previous adjudication. The tax collector refused to execute the deed, and Buckley brought mandamus proceedings against him to compel him to execute the deed. The tax debtor intervened, opposing Buckley’s application for mandamus, and set out certain reasons why a deed should not be executed in favor of Buckley.

The tax collector answered, admitting in substance the facts above stated. He and the intervener both prayed that Buckley’s demands be rejected.

The case was tried on February 11, 1937, and o'n the same day the Honorable J. C. Meraux, district judge, rendered judgment in favor of Buckley, ordering the tax collector to execute the deed. Following the rendition of this judgment the tax collector executed the deed, and it was placed of record.

Within the delays allowed by law, in-tervener, the . Delacroix Corporation, applied for a suspensive appeal from the judgment against it and in Buckley’s favor, which appeal the judge refused to grant. Whereupon the intervener applied to this court for writs, which were granted, ordering Buckley, the tax purchaser, the Honorable J. C. Meraux, district judge, and the tax collector to show cause why a suspensive appeal should not be granted. The judge sent up the record with his answer. Buckley and the sheriff both answered.

There seems to be some controversy between counsel for relator and the judge as to why the suspensive appeal was not granted. But that is not important, the fact being that the judge did refuse to grant the appeal, as shown by the following notation which he made on the application for appeal presented to him: “Suspensive Appeal Refused,” signed, “J. C. Meraux, Judge, February 23, 1937.” He did, however, grant a devolutive appeal.

That the tax debtor, Delacroix Corporation, intervener in the mandamus proceeding and relator here, was entitled to a suspensive appeal from the judgment rendered on February 11, 1937, and that the. district judge erred in refusing to grant such appeal, is too clear to admit of doubt. In fact, Buckley, in whose favor the judgment was rendered, seems to concede that such appeal should have been granted. At least, he does not oppose appellant’s application. He says in his return:

“The attitude of this appearer, Warren Buckley, is that he has no desire to attempt to hinder the Delacroix Corporation from having this court pass upon its appeal, and Warren Buckley does not intend to attempt to force possession under said tax deed until this court has passed upon said appeal.

“Therefore, appearer, Warren Buckley, states that he does not oppose the ordering of a suspensive appeal herein and an order by the court suspending the operation of the judgment and the deed pending this appeal, provided a solvent bond for $2000.00 is furnished.”

As to the amount of the suspensive appeal bond, counsel for relator concede that $2,000 would be proper.

For the reasons assigned, the preliminary writs heretofore granted are now made peremptory, and accordingly the Honorable J. C. Meraux, judge of the *768Twenty-Fifth judicial district court for the parish of Plaquemines, is ordered to grant to the Delacroix Corporation a sus-pensive appeal from the judgment rendered February 11, 1937, in the proceeding styled State ex rel. Warren Buckley versus L. D. Dauterive, Sheriff & Ex-Officio Tax Collector, No. 1330 on the docket of said court, conditioned upon appellant’s furnishing bond for such appeal in the sum of $2,000.