74 So. 189 | La. | 1916
Lead Opinion
This appeal was taken by Mrs. Georgina T. Young, who had filed a petition of intervention or third opposition in the district court, in forma pauperis, under the provisions of the Act No. 156 of 1912.
The plaintiff in the original executory proceedings, defendant in the intervention or third opposition, has filed a motion to dismiss the appeal on the grounds: (1) That the appellant has not furnished an appeal bond; (2) that, if it be held that the order of the district court, allowing the intervener -or third opponent to prosecute her demand without furnishing a bond for costs or paying the costs as they accrue, exempted her from furnishing an appeal bond, then that the motion for an appeal should have contained the allegations required by the Act No. 156 of 1912, for permission to prosecute a suit without furnishing a bond for costs or paying the costs as they accrue, and that such allegations should have been supported by an affidavit; (3) that the proof required by the Act No. 156 of 1912 to prosecute a suit in forma pauperis was not made in the district court, and the judge was therefore not authorized to grant the order of appeal without requiring an appeal bond; (4) that the appellant is not a pauper, and is therefore not exempt from furnishing a bond for costs; and (5) that the judgment complained of is not appealable to this court.
As to the second, third, and fourth grounds urged for demanding a dismissal of the appeal, it is sufficient to say that the proper allegations were made in the petition of intervention or third opposition, and were supported by the affidavits required by the Act No. 156 of 1912, to prosecute the suit in all of the courts of this state without paying costs or furnishing a bond for costs. The defendants in the opposition had the right, under the provisions of the statute, to traverse the allegations regarding the plaintiff’s right to prosecute her intervention or third opposition without paying costs or furnishing security for the payment.
Taking up the fifth ground urged in the motion to dismiss the appeal, it appears that the appeal was taken from a judgment refusing to grant a preliminary injunction without bond. Appellee’s attorneys argue that it must be presumed that the sheriff has sold the property which he had seized, and which the intervener or third opponent attempted to enjoin him from selling. It is contended that an appellant has no further right to prosecute a devolutive appeal when it appears or may be inferred that the judgment complained of has been executed. The record does not disclose that the sheriff has sold the property seized, and we will not assume that he has done so.
The motion to dismiss the appeal is overruled.
Opinion on the Merits
On the Merits.
Mrs. Georgina T. Young filed an intervention and third opposition in the suit, claiming the ownership of said property, and seeking to annul her authentic sale of the same to the defendant, and the mortgages placed by him thereon, on the ground of error, mistake, and fraud, and alleging that the plaintiff is merely a party interposed.
Mrs. Young applied for an injunction without bond, under Act 156 of 1912, authorizing pauper litigants to sue “without the previous or current payment of costs and without giving a bond for costs,” and also under the provisions of articles 739 and 740 of the Code of Practice relative to injunctions against executory process.
The trial judge first ordered the injunction to issue as prayed for, but subsequently recalled his order, and, after the trial of a rule nisi against the plaintiff, refused to order the issuing of writs of injunction.
The intervener and opponent has appealed from the order of refusal.
The title of Act 156 of 1912 reads as follows:
“To authorize litigants who are unable to pay costs to litigate as plaintiff, defendant, or intervener, in the courts of this state without the previous or current payment of costs and without giving a bond for costs, and fixing the extent, terms, conditions and manner of exercising the right herein granted.”
The first section of the act provides, in part, as follows:
“This right to litigate without the previous or current payment of costs or without the giving of bonds for the payment of costs shall extend to all the services required by law in legal proceedings of clerks of courts, sheriffs and official stenographers, and to obtaining copies of notarial acts from public officers and notaries and certificates from public officers in respect to records of their offices.”
The costs referred to in the title, being limited by the act to all the services required by law of certain classes of officers, cannot by the most elastic rule of construction be stretched to cover damages that may be sustained by the defendant in injunction.
It needs no citation of authority to support
“We are of opinion that the injunction ought not to have issued without bond. The statute provides that no injunction shall issue except upon security. Rev. Code, c. 32, § 14. And the statute allowing a suit in forma pauperis_ applies to costs, and does not embrace an injunction.”
In the ease of O’Reilly v. Pietri, 135 La. 4, 64 South. 922, this court held that only the defendant in executory process can arrest the sale by an injunction, without bond (G. P. art. 739), and that an intervener or third opponent in a foreclosure suit is not entitled to an injunction, without bond.
It is therefore ordered that the judgment appealed from be affirmed, and that the appellant pay costs of appeal.