State ex rel. Richardson v. Judge of the Fourteenth Judicial District Court

Taliaferro, J. A creditor of the relator having obtained an order of seizure and sale against her property, she injoined the execution of the writ, alleging various grounds for the proceeding. The injunction was dissolved, and the relator moved the court for a suspensive appeal, tendering a bond with surety for five hundred dollars to cover costs. Tbe court ordered that a devolutive appeal be granted her on giving bond in tbe sum of one hundred dollars, and a suspensive appeal on furnishing bond in the amount required by law. The relator thereupon applied to this court for a writ of mandamus, directed to the Judge of the Fourteenth District, commanding him. to grant the suspensive [654] appeal applied for on bond of five hundred dollars. A rule nisi was granted, returnable before this court on the first Monday of November, 1873, and all proceedings in the case staid in the lower court. To this rule the judge a quo answers : First — That the proceeding entitled Sarah Richardson v. B. H. Dink-grave, Sheriff, et al., is not by law an independent suit or proceeding coupled with the conservatory writ of injunction, as contemplated by Code of Practice, articles 296 et seq., which is instituted by petition, oath and bond; but is, in its nature and all its bearings, an opposition and answer to the petition for order of seizure and sale. 4 La. 89; ib. 293; 3 Rob. 347. Second — That the doctrine enunciated in the case of the State, ex rel. Stackhouse, v. the Judge of the Fourth District Court of New Orleans, 21 An. 152, referred to in the rule nisi granted by this court against respondent, and the ruling in that case, does not conflict with the judgment and ruling of respondent in the present case, for the reason that the relators, Stackhouse et al., in 21 An. p. 152, obtained an injunction upon giving bond with security for $1000; that Zunts filed an answer, praying for a dissolution of the injunction; whereas, in the case at bar, Mrs. Richardson did not obtain an injunction upon giving bond in any amount, claiming the benefit of article 739 of the Code of Practice, to sue out her injunction or opposition without giving bond. Third — That Mrs. Richardson having failed to sustain the allegations in her petition, when called on by plaintiff by rule to do so, respondent regarded the fiat or orders issued by him in the proceeding as the only judgment extant in the case, and that in order to obtain an appeal the amount of the judgment in the case of Pargoud v. Richardson must govern. While the law grants to creditors having title importing confession of judgment the right of executory process to seize and sell the property of their debtors summarily, it accords to debtors protection against injury and inconvenience they might otherwise suffer from an undue and improper exercise of that right on the part of creditors. Accordingly it presents specifically by article 739 of the Code of Practice the only grounds upon which a sale of property, seized under executory process, may be arrested. Articles 738 and 740 grant the debtor the ready means of preventing an improper sale of his property, by swearing to the alleged fact authorizing a suspension of the sale, and may obtain his injunction without giving security. Article 741 then declares that: “The plaintiff against whom, the injunction has been obtained, may compel the defendant to prove, in a summary manner before the judge, the truth of the facts alleged in his opposition.” And article 742 proceeds: “If, on being thus, required, the defendant proves that the action on which the seizure655 has been obtained is extinct or prescribed, or that the cause of it is void, or that the debt on which it is founded is paid, remitted or compensated, the judge shall revoke the order of seizure and condemn the plaintiff to pay costs.” Article 743 follows, announcing that “ if the defendant does not prove the truth of the facts alleged in his opposition, or if it appears that he has paid, or can plead in compensation for only a part of the debt, the judge shall dissolve the injunction he has-granted, and the sale of the property shall proceed, either for the whole debt or for a part, as the case may be.” The terms of this article are peremptory, that, upon the dissolution of the injunction, the sale shall proceed. It assumes that the party has exercised the liberal right accorded to him of suspending the sale by injunction without giving security — that he has been heard by the judge and the grounds for his injunction found to be frivolous and not warranted by law. We find nothing in the entire chapter, treating of executory process, that justifies the inference that a defendant, in an order of seizure and sale, is to be indulged further in delaying his creditor in the enforcements of his rights without affording him indemnity against contingent injury and loss that might arise from delay. The judgment in the case at bar, dissolving the injunction without damages, is simply a judgment of nonsuit, and it seems naturally to blend itself with that ordering the sale, or, in other terms, it is in substance a repetition of the order first granted. We do not readily see the import of a suspensive appeal in such a case as having any other effect than that of suspending the original order of sale. Disconnected, entirely from that order, a suspensive appeal from the order dissolving the injunction would be nugatory. The judgment dissolving the injunction would not constitute a separate, independent judgment that could be appealed from, for any purpose other than that of affecting the original order of seizure and sale. We have not found a case in our jurisprudence where a suspensive appeal, from a judgment dissolving an injunction taken out to suspend the execution of a writ of seizure and sale, has been taken on a mere nominal bond for costs. In the case on which the relator more especially relies, that of the State, ex rel. W. and H. Stackhouse, v. The Judge of the Fifth District Court of New Orleans, 21 An. 154, security was given for one-half over and, above the sum awarded as damages and costs, which made the bond, about $20,000. We are not inclined, after further consideration of the law and tlieseveral decisions bearing on the prominent point in the case before us, to adhere to all the views we expressed in the Stackhouse case just referred to. We find that these views are not sustained by the previous decisions, and we regard them as antagonistic to the case of The State v. The Judge of the Third District (18 La. 444), which we now [656] ■consider embodies the true interpretation of the articles of the Code of Practice bearing on the subject. The case of The State v. The Judge of the First District (19 La. 167), was where the injunction in the first place was, not to restrain -the execution of an order of seizure and sale, but to prevent an order of seizure and sale from issuing — the party giving a bond for $20,000. Subsequently, on rule, this injunction was dissolved witli damages. An appeal from the order dissolving the injunction was taken on a bond of $6000. Afterwards, on the trial of the injunction on its merits, a judgment of nonsuit was rendered against the plaintiff, from which he appealed — giving bond to cover costs only. The court regarded the appeal as suspensive, but it went on to say : “ We know of no law that requires a plaintiff in injunction, who has given ■his bond to secure the damages which may be sustained by the defendant, and who, on appealing, gives another bond to secure the damages recovered against him, to furnish an additional bond for the purpose ■of securing the amount of the debt.” A writ of prohibition was ■granted, but the plaintiff was first required to furnish an additional bond for $75,000 to protect the bank in case it should appear the injunction had been wrongfully taken out. The cases referred to in twentieth and twenty-second annuals have -no direct analogy to the case under consideration. Entertaining these views, we conclude that the relator can only avail herself of a suspensive appeal in this case by conforming to the requirements of article 575 of the Code of Practice, by furnishing bond with security in a sum exceeding by one-half the amount of the order or judgment rendered against her. It is therefore ordered, adjudged and decreed that the rule taken in this case be discharged at relator’s cost. It is further ordered that a suspensive appeal be granted to the relator in this case ; provided that within fifteen days from the rendition of this decree she furnish bond with security, according to law and in conformity with this decree, in .favor of the plaintiff, J. F. Pargoud.