State v. Judge of the Commercial Court

Simon, J., delivered the opinion of the court. A rule having been taken on the judge of the Commercial Court, to show cause why he should ,not grant a suspensive appeal from an interlocutory judgment by him rendered in the progress of this suit, directing the sheriff to deliver to Young Stephenson and William Coffin, the steam-boat Corvette, attached and sequestered at the suit of plaintiffs, on said defendants giving their bond in the sum of fifteen thousand dollars, with security, &c., shows for cause : That Stephenson & Coffin, to whom, it is alleged, that a fictitious and simulated sale of the boat attached and sequestered, was made by Haggerty, their co-defendant, have applied to bond the boat, and given bond, with sufficient security, in the sum ordered by the court; but that Haggerty did not appear and [592] join the motion to bond. He further shows, as his opinion, that the right to bond is given to the defendants by the Code of Practice; and that if, hereafter, the property should be found to be Haggerty’s, his co-defendants would be liable on their bond for the amount of the plaintiff’s claim, on their failing to produce the boat. He further gives, as his principal reason for refusing to grant the appeal, that the plaintiffs cannot suffer an irreparable injury, as the bond ought to be considered as a substitute for the boat. The object of the plaintiffs’ action is to recover a sum of money, to secure which, they allege to have a mortgage and privilege on the steam-boat Corvette; it is true that they allege, in their petition, that Haggerty is the real owner of the boat, but they aver, also, that his co-defendants have an apparent and pretended title to said boat, which they attack as fraudulent and simulated; and in order to exercise their alleged right of mortgage and privilege, they seek to annul the sale. We are not now to decide on the propriety or legality of the interlocutory judgment rendered by the judge of the Commercial Court; but it appears to us, that, instead of the boat itself, which, during the pendency of this suit, would lie idle in the port of New-Orleans, the plaintiffs having a bond and security to the amount of fifteen thousand dollars, it is a sufficient substitute for the boat. We agree with the judge that the interlocutory judgment complained of, cannot cause an irreparable injury, (Code of Practice,-566,) and we think he did not err in refusing to grant the suspensive appeal prayed for by plaintiffs. Let the rule be discharged.