City of New Orleans v. Bilgery, No. 14,179

No. 14,179 | La. | Jul 1, 1902

Tie -opinion of the court was delivered by

Nioholls, C. J.

A simple reading of tbe judgment of this court in the case of Ball et als. vs. The Oity of New Orleans, will show that the right of the plaintiffs therein to the ownership and immediate possession of the Second Street Market property, including the alleys connected therewith, was recognized absolutely .and unconditionally. Had it been the intention of the court to have postponed the yielding of possession of the property to the plaintiffs by the city to the liquidation and settlement of the rights between the parties as to the taxes and other matters reserved, we would either have -remanded the cause for such settlement to be made, or would have, in express terms, made the execution of the judgment conditioned upon a prior liquidation and settlement.

"When the mandate of this court was sent to the District Court, there was no legal reason under it which stood in the way of an immediate carrying out of its terms. The District Court should not have granted the injunctions which it did at the instance of the city, and it acted correctly in setting them aside. After setting them aside it should have refused, instead of granting, the city the appeal it solicited as to the execution of the judgment touching possession. Our decree was final in the premises and called for no appeal. Had the city felt aggrieved by such refusal, it could have tested its right to an appeal by application to this court for relief. The effect of the granting by the District Court of a general suspensive .appeal has been to prevent the execution of the judgment of this court in the Ball case up to the present time. Our judgment was not self-executing or self-operating. It required an enforcement through a writ of possession, unless possession should be surrendered voluntarily. As matters stand, there is now a writ of possession in the hands of the sheriff, the latter waiting upon the orders of the court in the premises that he should execute it. Had the District Court not granted the appeal it did, matters would have taken a regular legal shape. The injunctions having been set .aside, the writ of possession would have been at once executed by the sheriff. As it was the execution was tied up by the appeal and the court attempted to remedy the situation by enjoining the city from taking possession of the property and placing it and its revenues in the possession of a private individual called a sequestrator, thus bringing about a situation of affairs not warranted. The city was already in possession of the property as it had never been divested or ousted of the same, and this possession was continued by the suspensive appeal granted. Our judgment could not be enforced and carried into execution by a decree of the District Court proprio vigore. A decree of the District Court could not be substituted for the execution of a writ of possession by the sheriff. The method of executing judgments is fixed by law. The District Court could not, while granting the city a suspensive appeal, oust it from its existing possession of the property by a decree appointing a judicial sequestrator.

In Hereford vs. Babin, 14 Ann. 333, this court held that a party had no right to enjoin the execution of a judgment absolute and unconditional in its terms as to the matter it professed to decide during a litigation as to other matters in controversy reserved by the judgment; that unliquidated claims eannbt be pleaded by way of compensation against a judgment. This same principle was recognized in Menguelle vs. Abadie, 45 Ann. 616, and State ex rel. Kenner vs. Rost, Judge, 50 Ann. 995. A fortiori this cannot .be done in respect to matters reserved, which have not yet been brought into litigation. It will be seen that the city, in its petitions for injunction, did not seek to obtain judgment against them. The whole relief asked by it was obstructive and defensive and limited to opposition to the execution of- a writ of possession. Its whole claim to injunction rested upon the correctness of the proposition which it declared upon that the judgment' of the court made its enforcement by the plaintiffs conditional upon or contingent upon prior liquidation and a settlement between the parties of the matters reserved to the city therein. This claim had no basis to rest upon. In so deciding we practically decide the whole case.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of th.e District Court appealed from, in so far as it sets aside the injunctions which it had'granted herein to the City of New Orleans in the matter -of the execution of the judgment in the suit of Mrs. J. A. Ball et al. vs. The City of New Orleans et al., be and the same is affirmed, but that except as so affirmed the said judgment appealed from be, and the same is hereby annulled, avoided and reversed. Costs of appeal to be borne by the appellees.