State ex rel. Fassman v. Judge of the Second District Court

Taliaferro, J. The relators complain that the judge of the Second District Court of New Orleans refuses to grant them a suspensive appeal from a judgment rendered by him on a rule against Bancker, executor, and others, to show cause why the sale of certain property of the succession of Henry Passman, deceased, advertised for sale, should not be stopped, and the sale proceeded with in conformity with an order of the court previously rendered. Upon application to this court for a writ of mandamus, a rule nisi was granted, and the judge answered that he had rendered no judgment from which an appeal lies; that in the matter of the succession of Fassman, the testamentary executor obtained an order of sale of property of the succession, and, after the first offering, he assumed to have the property advertised for sale a second time, on terms different from those fixed by the order of the court; that upon the rule taken, he deemed it his duty to order the sale to be made in accordance with law and the order of the court. We think the appeal should have been granted. The order rendered was in the nature of an interlocutory decree, which might work irreparable injury. It is therefore ordered that the rule be made absolute, and that the judge of the Second District Court be ordered to grant the appeal applied for by the relators, and that it be made returnable to this court according to law.