The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-19
BY ASSOCIATE JUSTICE HOWELL.

" hOtellus anu a. fnilllps lOr Tue Ioiators.
The REALTORS allege that on the 3lst January, |
1867, James E. cunts obtained an order of seizure |
and sale on two notes for $4,000 each, with six |
per cent. interest from February LIST, 1866, the |
date OF their maturity and eight per cent. there.
AFTER and secured by mortgage on plantation in |
the parish Of Plaquemines; that on petition they
obtained an injunction, upon giving bond with
curity for $1,000 that cunts filed an answer TO said
petition. praying for the dissolution OF the inunc
ton with COSTS and for the maximum damages.
interest and attorneys fees against petitioners and
their sureties in sOlidO that the trial Of said
suit judgment was rendered against petitioners.
dissolvng the injunction, and commanding them
TO pay twelve per cent. damages and eight per
cent. interest on the amount of the Judg-
ment eDjoined, together with costs OF suit,
which damages and interest amount 70 sl3,3OO;
that within ten days they applied for and obtained
q suspensive appeal from the same, on giving
bond and security in such sum, and conditioned as
the law directs that they furnished bond, with
good security, for SIS, 900, being more than one
half over and above the judgment rendered
against them; that afterwards said cunts took
rule on them, TO show cause why said suspensive
appeal should not be set aside and execution issue.
On the grounds that the surety on the appeal bond
was not good and solvent, and said bond not sut-
hcieht for suspensve appeal, which rule was
made absolute and the appeal dismissed on the
second ground and that said cunts is about TO,
exercise his order of seizure and sale and the
judgment for damages, and they pray for writ
of prohibition, commanding the judge of the Fifth
OOurt IOr the parish OF Oried0S NOT 10 pro-
ceed any further in said suit, and to allow the
transcript of appeal to be sent up the same as if
the order of dismissal had not been rendered.
To this the Judge answers in substance, that the
appellants failed to give an appeal bond, as the
law directs, for sum exceeding by one-half the
amount of the Judgment debt interest and costs,
under article $40 c. p, that the bond on which
the Injunction issued, not being authorized by
law, is no protection 10 the plaintiff in the seizure
and sale, and TO have said writ suspended during
an appeal from the Injunction suit, a bond for
sum exceeding by one half the amount so enjOin-
ed, and the damages. interests and costs, also, Is
necessary; that executory process can be en-
Joined only for the prescribed, in article 739. c..
P. in which no bond can be required, and that the
or ground for the Injunction in this case be-
ing fraud and other unlawful means, no bond
should have been required, and consequently the
sureties on said bond could not be made liable;
that it is only IN cases where party is bound by
law TO give an injunction bond, that he can OBJ,
tain suspeDsive appeal from Jndg-
ment dissolving the injunction, without
giving security Tor the debt enjoined that art
575, C. p, making no distinction as to the amount
of the bond for suspensive appeal, the court can
make none, and he refers TO the case of the State
VS.. the Judge of Third District Is, l.. 44i, as
authority. The merits of the Injunction suit can
not be inquired into in this proceeding, aud hence
il il unnecessary to determine whether or not the
causes set out in the petition for injunction are
such as art 739, G. p, authorizes The only ques
ton is whether or not the REALTORS are entitled to
n
them, and here it is pertinent to inquire from
what Judgment the appeal is taken; certainly not
from the order Of seizure aud sale. Ii IA only
from the judgment rendered in the Injunction
suit. This judgment dissolves the Injunction aud
condemns the REALTORS, plaintiffs in injunction to
pay $l3 500 and costs, and for suspensiye appeal
therefTOm a bond for an amount exceeding by
one half such sum is by art. SO. c. P, sufficient,
if taken in time. This is the only and legal in
ference from the terms Of the order of the Judge
granting the appeal. the REALTORS and appellants
have complied with said order. Whether or not
this appeal suspends the executory process de.
ponds alone on the question whether or motif WAS
suspended by the Injunction; Tor II 1t was sus.
pended by that writ, 1t remains legally suspended
until the judgment dssolviDg the injunction be-
comes final, and by law said judgment does not
become final until affirmed on appeal duly aud
properly taken. That the executOry process was
suspended by the writ of Injunction is not denied.
| The proceedings thereon by the plaintiff, Ia G
seizure and sale, admit and confirm this. The
sale is arrested by the Injunction, and the appeal
main aims the case in stdt quo until the Judgment
| dissoviDg The Injunction can be reviewed by the
| appellate court. On the appeal what Judgment
can be rendered against the appellants Not one
for the defendant eDj Oined. but at most one affirm
| ing that appealed from. with possibly increased
| damages and costs. The injury caused by the
delay is covered by the judgment for damages,
which is secured BY the property under seizure,
| or mortgage.
We do not deem this the occasion to press on
or the liability of the security thereon bat we
consider il proper to state that the reasoning in
the case in Is l.. 444, does not satisfy Us that
| bond Tor the mortgage debt and the damages is
necessary for suspensive appeal in an injunction
| issued without bond, under articles 739 aud 740,
| Code of Practice. The authority of that case Is
| greatly weakened by the reasoning in the one of
the State VS. the Judge of the First District 10 L.
| l67, which we believe to be more c0nsonant with
the principles of law relating to the question be-
/ fore us. We know Of no law.which requires such
a bond. The plaintiff in Injunction, in either case,
| is entitled TO the protection of the court so long
as the matter in controversy is undetermined.
And, besides, it is well settled that after a sus
pensive appeal is once granted, and the bond is
signed accordingly, the judge of the first In
stance has no jurisdiction of the cause further
than TO ascertain that the surety is good and SOL
| vent. - La. 49, IFS and cases there cited.
| Our conclusion is, that the appeal taken by the
REALTORS is suspenslve, and that they are entitled
10 the writ applied for in this proceeding. ia order
| to have the merits Of the Injunction examined by
| this court.
1t is therefore ordered the prohibition issued
| herein be made perpetual. and the judge OF the
fifth District Court for the parish Of lOrleans or
dered not TO proceed any further in the suit of W.
| & II. SackhOuse VS.. James E. cunts. No. Is $50
on the docket of bis court, aud u allow the tran
script Of the record thereof to be sent to tue So
pteme Court, as If the order Diminishing the sus-
| pensve appeal had not been rendered.
| We may report other decisions in another issue.