State ex rel. Williams v. Monroe

24 So. 790, 51 La. Ann. 161, 1898 La. LEXIS 577

• Court: Supreme Court of Louisiana
• Decided: December 5, 1898
• Docket: No. 12,900
• Status: Published

Opinion

The opinion of the court was delivered by

Miller, J.

The Relatrix, a judgment creditor of a corporation, seized its property under execution. Subsequently the lower court, on an ex parte application of an alleged stockholder of the corporation, made the appointment of a “provisional receiver” for the corporation. The seizing' creditor thus arrested in the execution of his judgment, applied for a suspensive appeal from the order appointing' the receiver, which was refused on the ground the order was not calculated to work irreparable injury, and, hence, was not appealable. The relatrix applied for the axjpeal to the Court of Appeals; the judges of that court, it was shown, were not in the State when the ax^ea! was refused, and in that con'dition the application was made to one of the justices of this court, during our recess, for a writ of mandamus, to cornxicl the allowance of the apx>eal. As the relatrix had sought an axixJeal to the ‘Court of Appeals, to that court should the application have been made for the mandamus, and our order directed the proceedings to be stayed until the Court, of Appeals, the judges of which court being then absent, acted on the apxfiication.

The petitibn for the writ showed that the Relatrix, with xu'operty of the coipioration seized under her judgment for one hundred and fifty-five dollars, ax:>x>lied for the order of axipeal from an order that putting the property of the corporation in the hands of a receiver arrested relatrix in the execution of her judgment, and took from the sheriff the property she had seized under her execution. Such orders under our jurisprudence are appealable. C. P. Art. 566; Martin vs. Blanchin, 16th Ann. 83; State ex rel Brewing Co. vs. Judge, 46th Ann. 101; State ex rel Gaiser vs. Judge, 46th Ann. 112; In re Moss Cigar Co. 50th Ann. not yet reported. Under our supervisory power it is competent for us to stay x>roceedings in the District Court under an order which is appealable, until the action of the Court of Appeals ■can lie had, when the litigant applies for the appeal to the Court of Appeals, which the District Court refuses to grant. On the allegation in rclatrix’s petition, we deemed it a proper case for this order staying proceedings. Constitution, Art. 04. We are informed by the returns to our preliminary order that the Relatrix has made the application to the Court of Apipoals for the mandamus, and in these returns we find other questions raised as to the jurisdiction of that court. These questions, we think, must be xiassed on by that court and not by this court, in the present phase of the controversy.

It is therefore ordered and adjudged that our preliminary order be maintained in so far as it stays proceeding's until the action of the Court of Appeals on rclatrix’s apxffication for a mandamus.