35 La. Ann. 312 | La. | 1883
This is an injunction restraining the defendant “ from proceeding further with his application to be appointed dative executor ” of the estate, of which the plaintiff is testamentary executor.
Certain creditors of the testatrix obtained an order on December 17, 1880, requiring the plaintiff to give bond with security for a sum exceeding by one-fourth- the amounts of their debts, within thirty days from the service of the order, and it was served on the same day. The bond and security was not given within that time.
On January 28, 1881, the defendant, alleging that the succession was without a representative because of the plaintiff’s failure to give the security as ordered, and that he was a privileged creditor .of the succession, applied for the appointment as dative executor, and his application was ordered to be published. Whereupon the present injunction was obtained on February 7th following.
The injunction was improvidently granted. Whether Egelly is such creditor as to entitle him to the appointment he seeks, and whether there is legal occasion for any appointment, are matters not now before us. He was asserting what he claims is a legal right by means of judicial proceedings, and it is an abuse of the writ of injunction to summarily prevent his prosecution of his suit thereby. Brott vs. Eager, 28 Ann. 262.
The plaintiff has his remedy, and the lower Judge has welded it into shape for him, by ordering his petition to stand as an opposition to Egelly’s application, while at the same time the injunction was dissolved. He thus lias preserved to him the right to contest the defendant’^ pretensions in their entirety, and does not illegally interfere with the defendant in the prosecution .of his own suit.
Judgment affirmed.
