State ex rel. Henry Block & Bro. v. Judge Civil District Court

The opinion of the court was delivered by McEnery, J. The relators apply for a writ of mandamus to compel the respondent judge to issue an order to the civil sheriff of the parish of Orleans, directing him to release on bond, and pay over to the relators the proceeds of the sale of perishable property, seized in several attachment proceedings against them. The several attachment suits were allotted to the different divisions of the Civil District Court. O. Lazard & Co., the first attaching creditors, obtained the order to sell the property. All the attaching creditors and the relators agreed to the sale, but there was no agreement that the proceeds should remain in the hands of the sheriff, subject to the rights of the attaching creditors, and until the further orders of the court. In the case of the State ex rel. Gerson vs. Judge, 37 An., p. 261, we held that property attached and sold in limine, under Article 261, [89] Code of Practice, the proceeds of the sale of property continue to be the “ property attached,” and subject to the rights of the defendant to bond “ in every stage of the suit,” under Article 259 of the Code of Practice. We are referred to the eases of State ex rel. Moss vs. Judge, 40 An. 203; and Wickman & Pendleton vs. Nalty, 41 An. 285, as announcing a contrary rule. In the first case there was an agreement that the proceeds of the sale of the attached property should remain in the hands of the sheriff, subject to the claims, rights, and liens of the various attaching creditors. In pronouncing the decree, we said: “ Whatever tho legal right of the relators was, apart from the agreement, the agreement became a law to all the parties thereto, and by its terms they must abide.” In the second case there was no application to bond the property. The question presented for consideration was the dissolution of the attachment. All parties had agreed to the sale of the property, and the retention of the proceeds by-the sheriff, to await final judgment. The rule to dissolve the attachment was discharged, on the ground that the agreement effectually debarred the defendant from questioning the validity of the process against him and his property. That the relators are fugitives from justice, and that the numerous attachment suits will involve further litigation on the bond to recover the proceeds, can not be considered as valid reasons for denying a positive right given to the relators by law. The relators forfeit none of their civil rights by absenting themselves, and, it is to be presumed, that the bond will be paid, in accordance with its terms and conditions. The relators urge that the bond should only be for an amount equal to the proceeds of sale in the hands of the sheriff. The proceeds represent the property. The bond, therefore, must be in an amount and conditioned, as though the property was still in the hands of the sheriff, in strict compliance with Article 259, Code of Practice. The rule herein is made absolute, the relief prayed for granted, and the mandamus made peremptory.