State ex rel. Van Halen v. Monroe

The opinion of the court was delivered by Miller, J. The relator seeks by the writs of certiorari and prohibition to review the action of the lower court in dissolving on bond the injunction obtained by plaintiff to restrain the execution sale on the judgment of the Firemen’s Building Association against the relator as tutor of his minor children. • The petition for the injunction in substance averred that the alleged debt of the association for which they recovered judgment had been in great part paid, that the papers evidencing the payment were in posession of the association and the petition contained other allegations deemed necessary to entitle the plaintiff in the injunction suit to demand the nullity of the judgment and an injnnction against its execution, the petition assigning another ground against the execution, that under it the property of the succession of the deceased wife of the plaintiff in injunction was seized, and about to be sold. The injunction was dissolved on the ex parte application of the association on the bond required by the order of dissolution, and was followed by the sheriff’s sale and the adjudication to the association of the property the sale of which was sought to be enjoined. The judge of the lower court in his answer to the relator’s application states that the answer in the suit of the building association admitted a portion of the debt sued for, that the property subjected to the judgment was not that of a succession, and he conceived that the bond required by the order of dissolution was ample to protect the interest represented by the relator. We have no occasion to deal with any question raised by the petition for the relator save that arising on the dissolution of the injunction, on the ex parte application of the Building Association. The purpose of the relator is by the exercise of our supervisory jurisdiction to have that dissolution set aside, and to prohibit the sheriff from proceeding any further under the execution of the association. Constitution, Art. 90. The Code of Practice provides that injunctions may be dissolved [644] when the dissolution will not work irreparable injury to the plaintiff seeking that relief. O. P., Art. 308. It is strenuously urged it was not competent to dissolve on bond an injunction the execution of a judgment sought to be annulled on the grounds stated in the petition for that writ. We do not find it necessary to consider that issue, but on the other ground taken by the relator we are of opinion that in this case the plaintiff in the injunction suit was entitled to notice and a hearing on the motion to dissolve, and the lower court was without power to dissolve the injunction on the ex parte application of the Building Association. Marin vs. Thierry, 29 An. 362; State ex rel. Moore vs. Judge, 37 An. 118; State ex rel. Gas Light Company vs. Judge, 37 An. 285. Since the relator’s application to this court a paper has been filed in the clerk’s office expressing the unwillingness of the Building Association to bring to trial the injunction suit and reinstate the injunction, but the relator objects to the filing of the paper and insists, we presume, to our action on his petition. It is therefore ordered, adjudged and decreed that our previous order be maintained, that the order dissolving the injunction of relator be set aside, the injunction reinstated to await the trial of the relator’s suit and to abide the judgment in said suit.