City Bank of New Orleans v. Walden

2 Rob. 181

• Court: Supreme Court of Louisiana
• Decided: May 15, 1842
• Status: Published

Opinion

Bullard, J.

This case is a direct consequence of that of Walden v. The City Bank of New Orleans, just decided. After the injunction in that case, inhibiting the Bank from prosecuting an order of seizure and sale, bad been dissolved, and a suspensive appeal had been allowed, the Bank presented a petition praying for an order of seizure and sale under their mortgage. To a rule to show cause why it should not be issued, the def endant answered, that he was ignorant of any such suit as that stated in the rule; that he had never been cited; and he denied the right of any corporate body or person to hold him to answer any such rule, the same being a nullity. He further answered, that the making of the rule absolute, would be a violation of the injunction yet in force, in the case of Walden v. The City Bank, (ante p. 165.) He also pleaded the pendency of the suit, putting in issue the contract on which the plaintiffs seek to obtain the order of seizure.

The-rule was discharged, and the order of seizure and sale refused, and the Bank has appealed.,

We are of opinion that the judge did not err. An appeal having been taken from the judgment dissolving the defendant’s injunction within ten days, and bond with security having been given, as required by law, for a suspensive appeal, the judgment could have no effect pending the appeal. The injunction was, therefore, maintained in force by the effect of the appeal, until the question should be finally disposed of by the appellate court.

Lo chetl; Micou, and L. Peirce, for the appellants. Gr ymes and Hoffman, contra.

The judgment of the District Court is therefore affirmed with costs, without prejudice to the plaintiffs’ right to their order of seizure and sale since the final decision of this court in the case of Walden v. The City Bank of New Orleans.