State ex rel. Southern Bank v. Pilsbury

35 La. Ann. 408

• Court: Supreme Court of Louisiana
• Decided: April 15, 1883
• Docket: No. 8751
• Status: Published

Opinions

Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The City of New Orleans prosecutes this appeal from an ex parte order or decree directing the execution of the mandate of the Supreme Court of the United States, and of the decree of this Court predicated thereon, rendered in this case.

The order complained of was rendered on the motion of R. D. Shepherd, as the. holder and owner of four of the six hundred and thirty-one bonds declared upon by the Southern Bank.

Appellee contends that no appeal lies from the order of the lower court ordering the execution of a decree rendered by this Court. But the very complaint of the City is, that the mandate ordered to be executed by'the District Court is not the decree of this Court and, hence, her appeal presents a question properly to be reviewed by this Court. As stated in the case of Cox’s Executors vs. Thomas, 11 La. 366; “ 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.” Lovelace vs. Taylor, 6 R. 92.

The gist of the City’s complaint is, that the District Judge, in granting an execution to Shepherd, the appellee, who is not an original party to the suit, nor an assignee of the original plaintiff, has virtually rendered a new judgment, and she has the undoubted right to have a revision of such alleged judgment, as was done in the case from the Eleventh Louisiana.

The motion to dismiss is, therefore, denied.