30 La. Ann. 506 | La. | 1878
Lead Opinion
The opinion of the court was delivered by
This appeal is from an order dissolving, on the bond of the defendant, under article 307 of the Code of Practice, an injunction sued
The petition is somewhat inartificially drawn, and the particular act sought to be restrained by the injunction is the provoking by the defendant of the execution of a judgment of the district court not against the plaintiff, but another person, and his thereby obtaining possession and control of largely valuable assets and property of the successions. It is urged that the parish court was without jurisdiction to enjoin the execution of a judgment of the district court, and that, without passing
We are asked to "dismiss this appeal for want of citation to the ' appellee. It appears from the entries in the record that, to use its own language, “the court met in chambers on the twelfth of December, 1877, at the courthouse, in the town of Coushatta, that the defendant moved the court to ‘suspend’ the injunction on his giving bond, that it was so ordered, that all the papers and proceedings in the suit were filed in ■ evidence, and immediately following that ‘petition for appeals, suspensive and devolutive, (were) filed in open court,’ and the usual orders thereon granted, all on the same day and at the same time, and that thereupon the court adjourned sine die.” The judge thereupon' signed officially and certified to all of the foregoing facts. The petition for appeal is then given, and then the order of appeal, which ends in these words: “ Done, read, and signed during the chambers trial of said proceeding herein, on this twelfth of December, 1877. A Ben Broughton, Parish Judge of Bed Biver parish, La.”
While the manner of proceeding seems to have been somewhat anomalous, we think it sufficiently appears that all the steps taken, including the appeal, were had contradictorily with each other, and in the presence of both counsel for plaintiff and defendant, and under the peculiar circumstances of this case that the motion to dismiss the appeal for want of citation should be and it is overruled; and on the merits
For the reasons assigned, it is ordered,-adjudged, and decreed that the order dissolving the injunction sued out in this case upon the bond of the defendant be and it is amended, and the injunction reinstated. It is further ordered that the defendant, J. N. Brown, pay the costs of this appeal and of the proceedings in the court below upon his application to release the injunction on bond.
Dissenting Opinion
Dissenting Opinion.
I do not concur in the opinion and decree just pronounced. J. N. Brown, as administrator of the successions of his father
Soon after this judgment was rendered, Marietta J. Brown, a sister and co-heir of the parties to that suit, authorized by her husband, filed a petition in the parish court of Red River, setting out various causes of injunction; and concluding with a prayer that J. N. Brown be enjoined from procuring or causing to issue “ any writ of possession or execution under said judgment, and from taking possession of said property, or of its revenues, under or by virtue of said writ, until he causes himself to be regularly appointed, and gives bond for one fourth over and above the proved value of the said successions.”
The general rule is that the court which rendered the judgment has exclusive authority to execute it or to arrest the execution. Code of Practice, arts. 617, 629; Olger vs. Daunoy, 7 N. S. 658; Borne vs. Porter, 4 Rob. 57; Nolan vs. Babin, 12 Rob. 533; Donnell vs. Parrott, 13 An. 252.
To this rule there is this exception, founded in necessity and recognized by jurisprudence: When a judgment has been rendered in one parish, and execution issues to another, the competent court of the parish in which it is to be executed may enjoin. Cavelier vs. Turnbull, 8 Mart. 61; Lawes vs. Chinn, 4 N. S. 390; Hobgood vs. Brown, 2 An. 323; Police Jury vs. Michel, 4 An. 84.
I can not consider the injunction asked for and granted in this case as any thing but an interference with the authority and jurisdiction of the district court, by arresting, prohibiting, the execution of a judgment rendered by that court; and in violation of the Code of Practice, arts. 617, 629, and of the jurisprudence established by the decisions just referred to, from 8 Martin, in 1820, down to 13 An., in 1858, and not since questioned by bench or bar, so far as I am informed.
The parish court had exclusive jurisdiction to appoint Brown administrator, and to remove him; and to compel him to have a proper inventory taken and to give the security required by law. It was the right of the plaintiff, as one of the heirs of her father and mother, to take such proceedings in the parish court as might be necessary to protect her interests, either for the removal of the administrator or to compel him to have a proper inventory taken, or to give bond and qualify according to law; and she might, at the same time, have gone into the district court and obtained an injunction staying the execution of the judgment of that court pending the proceedings in the parish court. The pendency of these proceedings in the parish court, which is vested with exclusive jurisdiction of such matters, would have been ample cause for
I think the parish court was-absolutely without jurisdiction; that the entire proceeding in that court was coram non juclice and void; and that we should so declare by our decree.