State ex rel. Hiern v. St. Paul

The opinion of the court was delivered by Breaux, J. Relator seeks to compel the District Court to issue an order of injunction without requiring bond, and to have the proceedings of which she complains, reviewed by this court. The proceedings began with a writ of seizure and sale issued against relator on an authentic act of sale of property, described in her petition, which was seized under the writ. The vendor, viz: the Eureka Homestead Society, reserved a mortgage to secure three thousand five hundred dollars and interest, being the purchase price of the property sold by this Homestead Association to Mrs. M. J. Hiern, who is relator here. Mrs. Hiern’s predecessor in title was Mrs. Delvin. In order to buy the property from Mrs. Delvin, Mrs. Hiern became a stockholder of the Homestead Association in question, for seven shares, and made needful deposit to complete her purchase. The property was sold to the association in compliance with the common agreement, and afterwards it transferred the property to relator, Mrs. Hiern, for three thousand five hundred dollars, without deducting the amount deposited. Thereafter, the said association exacted of relator a mortgage note for the full amount of three thousand five hundred dollars, payable on demand. By the terms of the charter, relator had a series of years within which to pay the purchase price. The Civil District Court granted the injunction for which she had petitioned and to which she laid claim without bond. But the court refused to grant the whole of relator’s prayer and ordered her to execute [282] a bond for $300. She was unable to furnish the required bond, and, in consequence, the sheriff sold the property in the foreclosure proceedings sued out; and the mortgage creditor, i. e., the Eureka Homestead Society, became the owner for two thousand seven hundred dollars. It appears that in relator’s petition for an injunction, she alleged the nullity of the executory process, and alleged further that the mortgage in question is a collateral obligation securing relator’s indebtedness to the Society and that the mortgagee’s foreclosure should have been preceded by a settlement of accounts between her and the Society. The judge of the District Court, in answer to the rule nisi which was issued by the Supreme Court, returned that due authentic evidence was prodxreed, as well as a statement of account between the parties, upon which the order of seizure and sale was issued; that, thereafter, an application was made by the relatrix for a writ 'of injunction without bond to stay the sale advertised; that the respondent did not think that the injunction was one which he was authorized to grant without bond and for that reason he required bond in the sum of three hundred dollars, which relatrix did not execute; that the sale which relatrix sought to restrain without bond was made to her creditor, the Eureka Homestead Society, on the STtli of October, 1900, and said Society has been in possession as owner since that date. Relator’s application for certiorari, mandamus and prohibition was filed here on the second day of November, a number of days after the adjudication of the property to the plaintiff in the executory proceedings. The adjudication and sale had become un fait accompli before this application was presented, and, it follows, before the rule nisi had been issued by this court. Now as relates to' the mandamus for which relator sues, no order can issue at this time as it would be entirely too late to effect any purpose. We have no authority to reinstate the writ of seizure and sale and then order that injunction issue restraining execution of the writ without bond, were we to find that the case is one in which one enjoining has the right to an injunction without bond. The writ of mandamus will not issue to the end of reviewing matters which might have been, but were not, raised before the adjudication complained of had been made. In this situation of affairs, we are not authorized, under our laws, to reverse and set aside a sale which has already been made on the ground here urged by relatrix, that is, re-open all that has been done under the writ of seizure and sale and bring the whole proceeding before the [283] court to examine into its validity. Mandamus, after the act, is not the remedy laid down in the Code of Practice for the judicial questions which will arise on the petition of injunction whereby the relates sought to restrain the sale in question. Mandamus will not issue when it is manifest that the process will be unavailing. It will not issue to the end of reviewing matters which were not timely urged. No application for a mandamus is in time to compel the court of the first instance to grant a special order of injunction without bond after the sale one seeks to enjoin has been made and completed. The relator, at this stage of affairs, must seek other modes of relief for protection against irregular foreclosure proceedings. Now, as to the writ of prohibition; unquestionably the District Court had jurisdiction to issue the order of seizure and sale, and the officers had authority to execute the writ of seizure and sale. The property was legally advertised for sale under a legal order of sale. Prohibition will not issue when it does not appear that the court was without jurisdiction, nor when the act to be prohibited is already done. C. P. 846. As relates to certiorari, we take it that, in this case the writ of certiorari was applied for and issued as. ancillary to the writ of mandamus. Be that as it may, there is remedy by appeal from the order refusing to grant an injunction without bond, and there is remedy by the direct action, although the injunction i'tself be not granted. We do not find authority in the Articles of the Code to issue any of these writs at this time to have it determined wherein the judge of the court a qua may have committed a mistake, particularly in view of tíre fact that relator is not without other remedies. In State ex rel. Bank vs. Judges, 50 Ann. 26, we said: “Under the writs of certiorari or prohibition we can correct proceedings for lack of jurisdiction while the proceedings are in progress, and we can correct execution of a void judgment. But after the judicial proceedings are ended, our writs go only to the execution of the judgment. C. P. 847, 853; Clark vs. Rosenda, 5 Rob. 27.” Whatever rights the purchaser may have acquired, cannot be attacked by mandamus and other summary writs. For reasons assigned, the order nisi which issued on relator’s application is recalled and discharged and the application for certiorari, mandamus and prohibition, is rejected. Eehearing refused.