Naughton v. Dinkgrave

25 La. Ann. 538

• Court: Supreme Court of Louisiana
• Decided: June 15, 1873
• Docket: No. 314
• Status: Published

Opinions

Wyly, J.

An order of seizure and sale should not be injoined, as in this case, for insufficiency of the evidence upon which it was rendered. The remedy is an appeal. This is undoubtedly so where a judgment is sought to he revised on that ground. No one will contend that insufficiency of proof is a good ground to injoin a judgment. Why should it be in regard to an order of seizure and sale 1 The law has not so provided.

Where a judgment has been rendered by default, the defendant has ten days after service of the notice of judgment to take a suspensive appeal, and twelve months for a devolutive one. Where an order of seizure and sale has been rendered the defendant has likewise ten days after service of the notice thereof' to take a suspensive appeal, and twelve months for a devolutive one.

Why should there be some remedy in the latter case that there is pot in the former ?

We see no necessity for it. In both cases the parties whose interests are affected have ample time to take either a suspensive or devolutive •appeal. If they desire the writ of execution arrested pending the appeal, they can have it by giving suitable bond, and such security as <4he law requires.

Why should the same judge who decided the evidence sufficient, and issued the flat, grant an injunction and restrain it on the ground that the evidence that he had just pronounced sufficient, is insufficient 9

In the case before us, the plaintiff chose to take a devolutive appeal, although he had ample time to take a suspensive one. While he was appellant, and after the court below had lost jurisdiction of the •case by reason of the appeal, he obtained this injunction to restrain the execution of the judgment on the same ground, to wit: the insufficiency of the proof upon which the order of seizure and sale .was rendered.

Whether or not the evidence was sufficient was a question for this court to decide in revising the appeal from the order of seizure and sale. It was a question, which, in our opinion, the District Judge had not right to determine in an injunction proceeding. The plaintiff had no right to use the remedy of injunction in connection with his devolutive appeal for the purpose of gaining the advantage of a suspensive appeal.

To get a suspensive appeal the law requires a bond exceeding by one-half the amount of the debt. In coupling an injunction with a devolutive appeal the plaintiff only gave bond for damages, which can not exceed one-fourth the amount of the debt. Thus, by this extraordinary procedure, the plaintiff has succeeded in appealing from the order, and suspending its execution in the meantime, he has gained practically all the advantages of a suspensive appeal, and has incurred only one-fourth the responsibility thereof. Such a practice should not be sanctioned by the court; there is neither law nor precedent for it. If the appellant desires execution suspended, he must take a suspensive appeal, as the law requires. He can not accomplish the object by combining an injunction with a devolutive appeal. The District Judge can not revise his decrees by an injunction on the ground of the insufficiency of proof. A new trial and an action of nullity are the only modes by which he can revise his judgments. This court may do so by appeal.

For the reasons stated, it is therefore ordered that the judgment herein be affirmed with costs.