State ex rel. Silverstein v. Judge of the Fifth District Court

25 La. Ann. 622 | La. | 1873

Taliaferro, J.

The relator sets forth that, in a suit instituted, against him by certain parties to dispossess him of property occupied by him underlease not yet expired, a judgment was rendered against him in September, 1873, ordering him to vacate the premises and deliver the same to the plaintiffs; that he applied to tlie court which, rendered the judgment for a suspensive appeal, which was granted within ten days from the time the judgment was signed, and made returnable to this Court on the first Monday of November, 1873, conditioned that the relator enter into bond, with good and sufficient security, according to law, which he avers he did do in conformity with the order of the court.' The relator camplains that, notwithstanding his compliance with the order of the court in furnishing-security on his bond, the sufficiency of which was not contested, a rule-was taken on him to show cause why his suspensive appeal should not be set aside; and, upon hearing, the same was made absolute and the-appeal annulled and set aside; that the plaintiffs thereupon obtained an order of the court, directed to the sheriff, to eject the relator from the premises in conformity with the judgment appealed from. The relator now applies to this Court for a writ of prohibition against further proceedings in the case, and for an order to the court a qua to send up the appeal taken by him as aforesaid.

From the facts that appear in this case, we think the relator entitled to the relief he seeks; all objections to the solvency of the surety or-sureties on the appeal bond were waived and no controversy waged as to the sufficiency of the bond. Having received the bond executed in the manner required by the order of the court, we think the court was-divested of jurisdiction of the case, and the subsequent proceedings-under the rule consequently without effect.

It is therefore ordered that a writ of prohibition issue directing the-judge of the Fifth District Court to take no further action in the case numbered 4857, entitled Arnold Ellis et al., Trustees, v. S. Silverstein,. on the docket of said court, until the case be heard on appeal, and that he be ordered to send up to this court the appeal granted to the-relator in said case.