State ex rel. Beebe v. Judge of Second-District Court

Howe, J. Luc Beebe obtained a judgment against the succession of Charles Beebe, recognizing him as sole heir of Manette Dubreuil and decreeing the whole of the property contained in the inventory of the succession to be assets of the partnership, existing theretofore between Manette Dubreuil and the late Charles Beebe and Luc Beebe, as her sole heir, entitled to her share thereof, and directing the parties [32] to proceed to a partition. William Beebe, tbe administrator, applied for, and obtained, a suspensive appeal upon condition, of giving a bond for three hundred dollars, which was accordingly given. Some days after, Luc Beebe took a rule to dismiss the appeal on the ground that the bond was insufficient (in amount) to suspend the judgment. This rule was made absolute “ so far as to declare the appeal a devolutive and not a suspensive appeal.’ Thereupon, the administrator, William Beebe, relator herein, applied to this court for a mandamus to compel the judge to grant a suspensive ajipeal from the original judgment and to restrain him from further action, etc. A rule nisi was issued. It seems clear that the judgment above recited is not one, the appeal from which is regulated by articles 575, 576 or 577 of the Code of Practice. It is not for a specific sum, nor for the delivery of a movable, nor does it decree the delivery of real estate. See State ex rel. Hickey v. Judge Fourth District Court, 29 An. 108. Following this decision, we must think that the bond given was sufficient to cover costs and so to suspend proceedings. If, therefore, the respondent had a right to take any step in the case, beyond testing the sufficiency of the surety, 21 An. 152, 113, he erred in' declaring the appeal to be merely devolutive. But the relator lias mistaken his remedy, which should have been the obtaining of a prohibition. He does not need another suspensive appeal. State ex rel. Johnson v. Judge Fifth District Court, 21 An. 114. It is therefore ordered that the application for the mandamus be dismissed at relator’s cost, reserving to him the right to proceed, if necessary, by prohibition.