Love v. Dickson

8 Mart. (N.S.) 440

• Court: Supreme Court of Louisiana
• Decided: January 15, 1830
• Status: Published

Opinion

Porter, J,

delivered the opinion of the court. This cause has been already before us. The attachment which had issued in it was set aside, and the case remanded for further proceedings.

Our judgment was of July term, 1828. An application was made for a re-hearing. Before the judgment became final, a second writ of attachment was taken out and levied. The defendant moved to have this attachments set aside, and the court of the first instance so ordered. From its decision the plaintiff appealed.

It appears to us, the judge did not err. While the cause was pending in the supreme court, no proceedings could be had in that of the first instance, and the attachment issued improvidently. It has been contended, that the judgment of this court had been rendered before the second writ of attachment issued. This is true; but that judgment had not, or could not become final, until three judicial days had elapsed. And the plaintiff himself did not consider so, for subsequent to issuing the second writ, he made an application for a re-hearing. We are perfectly satisfied of the irregularity and illegality of carrying on, at the same time, proceedings in the same cause, in the appellate court and that of the first instance.

Ripley and Conrad for appellant, Hennen for appellee.

The judgment of the inferior court must, therefore, be confirmed, with costs.