Kennedy v. New Orleans Savings Institution

32 La. Ann. 1231

• Court: Supreme Court of Louisiana
• Decided: December 15, 1880
• Docket: No. 7959
• Status: Published

Opinion

On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

Plaintiff in this case, alleging that he had made valid tender and consignment in payment of four certain negotiable mortgage notes made by himself and held by the defendant, and that notwithstanding the said tender the defendant refused to accept the same and withheld and refused to deliver to him said notes, upon appropriate allegations, brought suit to compel the delivery of the same, and also, on affidavit and bond as required by law, obtained a writ of sequestration, under which the civil sheriff seized and took into his possession the said mortgage notes.

Oglesby and Baldwin having been appointed receivers of the defendant corporation by the Circuit Court of the United States, made application for removal of this cause to said last named court.

The writ of sequestration remaining in force, and a motion of the receivers to set the same aside having been denied, the Fifth District Court, upon the application to remove, entered judgment “that this cause, as it now stands upon the docket of this Court, be certified and removed to the United States Circuit Court, and that the sheriff of this Court await the orders and decrees of that tribunal in the premises.”

The cause was accordingly certified and removed; and, by agreement of parties, the civil sheriff delivered the sequestered notes to F. A. Woolfiey, clerk and register of the U. S. Circuit Court, who receipted for them and, according to the agreement, was “ to hold the same subject to the order of the said court, after full notice to the opposing party.”

After the record had been filed in the Circuit Court, the plaintiff filed a plea to the jurisdiction of said court, upon which said court entered judgment sustaining said plea and ordering that “the cause be remanded to the Fifth District Court for the parish of Orleans,” and, at the same time, it made further order directing that “ the mortgage notes deposited with the clerk of this court be by him delivered to J. H. Oglesby and A. Baldwin, Receivers herein, to be by them proceeded with in any court having jurisdiction.”

Delivery was made accordingly, and the Receivers, Oglesby and Baldwin, thereupon instituted executory proceedings against defendant and his mortgaged property, by an independent suit in the Fifth District Court.

The plaintiff, Kennedy, then took a rule upon said Receivers, who were the legal representatives of the original defendant in the suit and had actually appeared as such therein, setting forth substantially the foregoing facts, and further averring that, at the time this caus.e was removed to the Circhit Court, the notes were in possession of the civil sheriff under the sequestration of the Court, which was in full force and effect — that the effect of the judgment of the Circuit Court declining ju-t ■ risdiction and remanding the cause to the Fifth District Court was necessarily to return the cause in the same condition as when remo'ved, Including the restoration of the sequestered notes to the custody of the sheriff under the sequestration and subject to the orders of that Court — and ordering the said receivers to show cause why they should not deliver the said sequestered notes to the civil sheriff. The court, in granting the rule to show cause, made further order that “ in the meantime they be restrained from proceeding further with the writ of seizure and sale.”

On this rule, after due hearing, judgment was rendered making the rule absolute and ordering defendants in rule to deliver the notes to the sheriff; from which judgment this appeal is taken.

The motion to dismiss is based on the ground that the judgment appealed from is interlocutory and cannot work an irreparable injury, and is, therefore, unappealable.

Counsel for appellants contend that the judgment appealed from is two-fold, (1st) ordering the delivery of the notes to the sheriff; (2d) restraining the plaintiff in the suit for seizure and sale from proceeding in that suit, thereby granting an injunction restraining an order of seizure and sale, without affidavit, bond or appearance in the suit.

So far as the second element above stated is concerned, the record shows that it does not fall within the terms or effect of the judgment. Under the rule, the receivers were only ordered to show cause why the notes should not be delivered to the sheriff. The restraining order was absolute, and only operative “in the meantime,” that is; during the pendency of the rule. That order expired, by its own limitation, when the rule was decided, and was not included at all in the judgment, as appears fully from its terms.

The only effect of the judgment appealed from is simply to order property expressly directed by the Court to be sequestered and actually sequestered, to be delivered to the civil sheriff.

It is not disputed that this is an interlocutory judgment. It is not disputed that the test of the appealable character of such judgment is whether or not it may cause an irreparable inj ury.

' We find it impossible to discover any irreparable injury which can accrue to appellants from the execution of this judgment.

The present order or judgment operates only on parties to the suit, and is merely ancillary to the original sequestration proceedings which were instituted long prior to the suit for seizure and sale brought by appellants. We cannot perceive how, by bringing this last named action, they can prevent the execution or maintenance of a sequestration taken out and operative prior thereto.

They are in no different case from that in which they were when these notes were originally sequestered, and if they could not appeal from that order they cannot appeal from this, which merely maintains the effect of the first. Neither was appealable.

It is, therefore, ordered that this appeal be dismissed at appellants’ cost.