Cox's Executors v. Thomas

Supreme Court of Louisiana

Cox's Executors v. Thomas

11 La. 366

CourtSupreme Court of Louisiana

DecidedSeptember 15, 1837

StatusPublished

Cited by6 cases

This text of 11 La. 366 (Cox's Executors v. Thomas) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox's Executors v. Thomas, 11 La. 366 (La. 1837).

Pincite

Opinion

Martin, J.,

delivered the opinion of the court.

This court, at its last September term, in Opelousas, rendered judgment in favor of the plaintiffs’ testator, against Rees and the present defendant, his surety, with a stay of execution as to the latter, until a tract of land mortgaged by Rees, should be seized and sold to satisfy the judgment.

The present suit was brought, on a suggestion, that the tract of land in question, had theretofore been sold, and the proceeds absorbed by a prior mortgage, and in order to have the judgment of this court made absolute, so as to obtain [369]*369execution against the defendant. Judgment was accordingly rendered, and he appealed.

The duty of is j¡Fob°y the mandate of court, if Ft does "lining paíhe judgment^must: ment by an ap-maTdamus!'01' a In relation to the execution ot final judgments, entitled ^to^an appeal. The remedy is by a mandamus ovsu-appeal's a matter of right in cases where it lies.

It is clear that these proceedings were irregular. The functions of the District Court in relation to a mandate which has issued from this court to have a judgment executed, are merely ministerial. It cannot render any new judgment which would authorize or render an appeal necessary. Its duty is to obey the mandate; if it does not, the party obtaining the judgment must seek its enforcement by an application for a mandamus; and the party against whom the judgment was rendered, if he thinks himself injured by the manner in which execution is ordered, must seek relief by a supersedeas, Neither of them is entitled to an appeal, which is a matter of . 11 nght, in cases where it lies. Not so of the mandamus or supersedeas. These are always in the discretion of the court, and are never granted unless a proper case be made out. ° 1 r . They issue from the court that rendered the judgment, and which is considered to be the best judge of the manner of executing its own judgments.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the petition dismissed ; the plaintiffs and appellees paying costs in both courts.

Free access — add to your briefcase to read the full text and ask questions with AI

Martin, J.,

delivered the opinion of the court.

This court, at its last September term, in Opelousas, rendered judgment in favor of the plaintiffs’ testator, against Rees and the present defendant, his surety, with a stay of execution as to the latter, until a tract of land mortgaged by Rees, should be seized and sold to satisfy the judgment.

The present suit was brought, on a suggestion, that the tract of land in question, had theretofore been sold, and the proceeds absorbed by a prior mortgage, and in order to have the judgment of this court made absolute, so as to obtain [369]*369execution against the defendant. Judgment was accordingly rendered, and he appealed.

The duty of is j¡Fob°y the mandate of court, if Ft does "lining paíhe judgment^must: ment by an ap-maTdamus!'01' a In relation to the execution ot final judgments, entitled ^to^an appeal. The remedy is by a mandamus ovsu-appeal's a matter of right in cases where it lies.

It is clear that these proceedings were irregular. The functions of the District Court in relation to a mandate which has issued from this court to have a judgment executed, are merely ministerial. It cannot render any new judgment which would authorize or render an appeal necessary. Its duty is to obey the mandate; if it does not, the party obtaining the judgment must seek its enforcement by an application for a mandamus; and the party against whom the judgment was rendered, if he thinks himself injured by the manner in which execution is ordered, must seek relief by a supersedeas, Neither of them is entitled to an appeal, which is a matter of . 11 nght, in cases where it lies. Not so of the mandamus or supersedeas. These are always in the discretion of the court, and are never granted unless a proper case be made out. ° 1 r . They issue from the court that rendered the judgment, and which is considered to be the best judge of the manner of executing its own judgments.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the petition dismissed ; the plaintiffs and appellees paying costs in both courts.

Cite This Page — Counsel Stack

Bluebook (online)

11 La. 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coxs-executors-v-thomas-la-1837.

Opinion

Related

Cite This Page — Counsel Stack