State v. Judge of the First Judicial District

MaiitiN, J. Toa rule to show cause why a mandamus should not be issued commanding the judge to grant a suspensive appeal to Geo. A. Wagganian, from a judgment obtained by Marie Camille Arnoult, his wife, against him, the judge has answered : that the wife having instituted a suit for a separation from bed and board, afterwards filed her petition claiming the administration of her paraphernal property, and praying for its sequestration. The property having been sequestered, and the husband having neglected to apply to bond the property within the period fixed by the Code of Practice, art. 279, the wife claimed the right of bonding under the act of the legislature, approved 5th of March} 1842; and an order was made accordingly. The husband moved to set aside the sequestration, on the ground that the property prayed to be sequestered was not paraphernal, but common, and that the sequestration had, on other grounds, been issued contrary to law. The motion was overruled, after argument. The husband then claimed a suspensive appeal from the interlocutory judgments, putting the wife in possession of the sequestered property, and overruling his motion to set aside the sequestration. The suspensive appeal was denied, and a devolutive one allowed, in compliance with which the husband executed his bond for the sum of two hundred dollars, to cover the costs of the appeal; The two judgments on which a mandamus for a suspensive ap [398] peal is prayed, are mere interlocutory ones. No appeal, either devolutive or suspensive, can be had thereon, unless the party who seeks to appeal shows that they subject him to an irreparable injury. Code of Prac. art. - 566. As to the first judgment, the bond, on the filing óf which the order of sequestration was issued, amply protects the husband from any injury which may result to him from his wife’s obtaining the possession of the sequestered property. The same bond will also protect him, if the District Court has erred in overruling his motion to set aside the sequestration. Rule discharged * Footnotes [*] Roselius, for a re-hearing. Pío application was made for a mandamus to obtain a suspensive appeal from either of the interlocutory judgments referred to in the opinion of the court. The wife was put in possession of the property, without any opposition on the part of the husband. But among the property sequestered is the dwelling in which the parties had their matrimonial domicil, and the question is, can a wife who sues for the administration of her paraphernal property, expel the husband from the common dwelling, pending the suit ? The District Judge was of opinion that she could, and on the 24th of May granted, ex‘parte, an order directing the sheriff to remove the husband, by force, therefrom ; and having refused to allow a suspensive appeal from this order, the defendant applied for a mandamus to compel him to grant it. It was* on this application that the rule was allowed, and the sheriff provisionally enjoined from executing the order of the 24th of May. That order is calculated to injure the defendant irreparably. An action on the sequestration bond is no compensation to a father and husband, for a forcible and ignominious ejection from the matrimonial domicil. Re-hearing refused,.