Larose v. Naquin

80 So. 254, 144 La. 201

• Court: Supreme Court of Louisiana
• Decided: April 29, 1918
• Docket: No. 23072
• Status: Published

Opinions

O’NIELL, J.

This is an application for mandamus to compel the granting of a suspensive appeal from an interlocutory judgment ordering a public sale to effect a partition of certain land in contest.

The plaintiff, claiming a sixth interest in the property, and alleging that each of five defendants named in his petition owned also a. sixth interest, sued for a partition. He alleged that the property could not be divided in kind without loss to its co-owners, and asked, therefore, that it be sold at public auction and the proceeds divided equally among the six owners. He alleged that a Mrs. Ernest Naquin claimed a half interest in the property, and asked that she be cited as the sixth defendant, and that judgment be rendered against her, denying her claim.

In answer to the suit, each of the six defendants admitted that the property could not be divided in kind without diminution of value and consequent loss to all parties; and each defendant, therefore, joined in the plaintiff’s prayer that the property be sold at public auction, and the proceeds held in court for division among the co-owners according to the judgment to be rendered. Mrs. Ernest Naquin, in her answer to the suit, also claimed a mortgage on the share of the property belonging to the other parties to the suit.

All parties having asked for a public sale of the property, the six defendants then obtained a rule upon the plaintiff to show cause why the sale should not be made' forthwith and the proceeds held in court for distribution according to the final judgment to be rendered. Answering the rule, the plaintiff (defendant in rule) objected to the sale, because he held possession of the property and was cultivating it, and because, as lie contended, Mrs. Ernest Naquin’s claims should be determined before a sale should be made. Evidence was taken, on trial of the rule, showing that the property could not be divided in kind without loss of value,. and that it would sell for a higher price then than at a later date. Judgment was rendered in favor of the plaintiffs in rule, ordering that the sale be made, and that the sheriff retain the proceeds for distribution according to such final judgment as might be rendered. The plaintiff (defendant in rule) moved for a suspensive appeal from the judgment; which was refused. The present proceeding is to compel by mandamus the granting of the appeal.

Opinion.

[1] Our opinion is that the plaintiff, defendant in rule, is not entitled to appeal from the judgment rendered in compliance with the prayer of his petition. The claim of Mrs. Ernest Naquin, that she had a mortgage on the plaintiff’s share in the property, did not warrant the plaintiff in attempting to withdraw his prayer for a public sale. An appeal from the interlocutory order of sale could not avail the plaintiff anything except delay, which, according to the evidence, would be advantageous to him and disadvantageous to the defendants, to which delay and advantage we do not think he is entitled. The demand for a partition should have been disposed of summarily. R. O. O. art. 1328. The judgment ordering the sale could only be affirmed on appeal, because all parties consented to it. Our conclusion is that the relator is not entitled to the relief prayed for.

The rule issued herein to show cause why the writs asked’ for should not issue is recalled, and the relator’s demand is denied, at his cost.