107 So. 471 | La. | 1926
Plaintiff obtained judgment against defendant and thereupon issued execution for the amount thereof; by virtue whereof relator, in his capacity of civil sheriff, seized and took into his possession certain physical property belonging to the defendant.
Thereafter one Harry H. Forst qualified as receiver for the defendant, and took a rule upon said sheriff to show cause why the property so seized should not be relinquished and turned over to said receiver.
The rule so taken was made absolute by judgment of the court below: whereupon plaintiff took a suspensive appeal therefrom. Which appeal is now pending before this court and is fixed for hearing on the very day this opinion is handed down. See our No. 27708,
2. It is quite true that the sheriff has no personal interest in this litigation; and, of course, a court officer cannot be permitted to interject himself into a litigation merely because of the fees which may accrue to him therein. But in this case the party having an interest to wit, the plaintiff, has intervened herein and joined the sheriff in applying for the writs. And we know of no reason why an intervention (C.P. art. 389) may not be filed in a case coming before this court under its original or supervisory jurisdiction, which (except as to the subject-matter thereof) differs in no way from the original proceeding before any other court. Lazarus v. McGuirk, supra. The case of Laloire v. Wiltz, 31 La. Ann. 436, has not the slightest application to such a proceeding.
3. It is also quite true that in general this court will not issue a writ under its supervisory powers in cases where the party complaining has a remedy in due course by appeal. But soon after the grant of general supervisory powers to this court by the Constitution of 1879 (article 90), the court held that this constitutional grant of power was meant to "emancipate" it from many restraints theretofore imposed upon it by the Code of Practice. State ex rel. City of New Orleans v. Judge. 32 La Ann. 549. And in the very next case decided, this court proceeded to further emancipate itself, by declaring, in effect, that the only restraint upon it in the exercise of the supervisory jurisdiction so granted was its own "sound discretion." *635 State ex rel. Sinnott v. Falls, 32 La. Ann. 553.
Accordingly, the writ herein issued was granted in what was (or then seemed to be) the sound discretion of all the justices of this court; and it has thus become (in the language of Mr. Chief Justice Nicholls, in State ex rel. Rivoire v. St. Paul, Judge, 28 So. 973,
This was, of course, even more immediately effective than aninjunction against further proceeding with said execution; and *636
this court said in Duval v. T.P. Ranch Co., 91 So. 656,
"It is well settled that a receiver cannot enjoin the execution of a judgment wherein the seizure occurred prior to his appointment in the absence of allegations of fraud or special interest in the property seized."
ROGERS, J., takes no part.