111 So. 792 | La. | 1927
This is the aftermath of our decision in First National Bank v. Hebert,
When the bank and Dartez attempted to take possession of the property, relator filed a suit to annul the sale on the ground that the bank and Dartez had (in contemplation of law) colluded to suppress bidding at the sheriff's sale, and he prayed that the sheriff be enjoined from executing the writ of possession issued against him.
A preliminary injunction was refused by the court below, whereupon relator took a devolutive appeal.
On that appeal the judgment of the lower court refusing a preliminary injunction was reversed, and our decree was that such an injunction should issue. But that decree must be read in the light of the opinion on which it is based, wherein we said:
"If the bank has taken possession of the property, a preliminary injunction will serve no purpose. * * * He (defendant) is entitled to the writ, if it is not too late. * * *"
When our decree reached the court below, the relator applied to the district judge for a preliminary injunction "commanding and ordering the sheriff of Vermillion parish to eject and dispossess the First National Bank of Abbeville and Laurent Dartez, and to reinstate your applicant [Hebert] in the full and peaceful possession thereof [to wit, of said premises]; and that said sheriff of Vermillion parish, the First National Bank of Abbeville, and Laurent Dartez be enjoined and restrained from further disturbing your applicant *380 in the peaceful possession of said property. * * *"
This we well knew when we said: "If the bank has taken possession of the property a preliminary [prohibitory] injunction will serve no purpose;" and that Hebert was entitled to the writ, "if not too late."
Manifestly we were speaking of the writ only in the prohibitory form, and for the purpose of preserving the status quo as it existed at the time the writ was applied for, which was all that was then before us. We did not decide, and from what we said it is clear that we did not intend to decide, that the writ should issue in the mandatory form for the purpose of changing a status which we foresaw might lawfully have arisen pending our action on the devolutive appeal.
This relief, although open to the relator, was not sought by him. And the consequence *381 is that he is now exactly in the same position as if he had never applied for an injunction, but had voluntarily surrendered the property, and simply brought suit to annul and avoid the sheriff's sale.
In this case, notwithstanding that it appeared to us as if a full trial on the merits had been had, the fact remains that there was no trial of the merits, but only of a rule to show cause, wherein the court seems to be given by law (Act
We therefore conclude that the trial judge properly refused to issue the mandatory injunction prayed for before a full and final hearing on the merits.