19 La. 167 | La. | 1841
delivered the opinion of the court.
This is an application, for a writ of prohibition. The applicant, D. T. Walden, alleges that on the 26th of October, 1840, he instituted a suit against the City Bank, praying that two mortgages executed by public act, amounting together to $200,000, be declared null and void; that in the mean time he obtained an order enjoining the said bank from suing out any order of seizure and sale on the said mortgages, and gave the bond and security required by the court. That on the tenth of November ensuing, a rule was taken to dissolve the. injunction, which was set aside by the court with damages, from which judgment he took a suspensive appeal. He further states that on the 8th of December, the City Bank filed their petition praying for an order of seizure and sale on the said mortgages, which was refused by the lower judge, from whose judgment an appeal was also taken and is yet pending before this court. That subsequently the injunction was tried on its merits, and a judgment of non-suit was therein rendered, from which the applicant took his appeal within the time required by law for staying execution, and gave bond and security in pursuance of the order of said court; and that on the 25th of May, 1841, the district judge granted ex parte an order of seizure and sale of the propertyjmortgaged by endorsing the same on the petition filed on the 8th of December, 1840, and now pending on appeal, and is about to carry the same into effect, unless arrested by a prohibition from this court.
The applicant’s petition having been served on the district judge and on the City Bank, said judge answered the rule by first representing that there was no proceeding now pending before his court against which, in his opinion, a writ of prohibition could properly issue; and after giving a statement of the several proceedings had before him, which are the same alluded to in Walden’s petition, he goes on to state: “thecause of
“ But an appeal was taken and bond given for two hundred and fifty dollars, the application of the bank for an order of seizure and sale upon its mortgages, purporting a confession of judgment, was then renewed. The question then presented to the decision of the court was whether an appeal from a judgment of non-suit with a bond of $250 could stay the execution awarded by law upon mortgages, to an amount exceeding two hundred thousand dollars. In the opinion of the undersigned, ffuch'aíf^4ff¡ect',.<could not legally follow such an appeal, and tfye order of seizure and sale was therefore granted.”
' “ TDuriin^'.tile interval between the judgment on the rule to dissolve, the injunction and the judgment on the merits of the suit of D. T. Walden vs. the City Bank, an order of seizure aüffsale was refused to the bank; but, in the view'of the undersigned, the circumstances were materially changed after judgment on the merits and it then became proper to award to the bank, the order which had formerly bsen refused.”
He also refers to the records filed in this court in the several suits between-the parties tSierein interested, and further alleges that when Walden’s petition of appeal was presented, his counsel disclaimed any intention of demanding a stay of execution, and that the appeal was consequently allowed with the security tendered.
The city bank also appeared, and referred us to the answer of the district judge as containing sufficient reasons why the writ of prohibition should not be granted.
We have examined the records referred to in the district judge’s answer, and have been able to ascertain that the facts iated and those alleged in the applicant’s petition are correct. It appears further that when'Walden obtained his in-therein stated and those alleged in the applicant’s petition are . . . junction, he gave a bond and security according to the order of the court in the sum of twenty thousand dollars ; that on the dissolution of the injunction, he and his sureties were condemned to pay in solido ten per cent, per annum on the amount of the injunction bond ; that on appealing from said judgment, he gave an appeal bond and security in the sum of six thousand dollars; that when the order of seizure and sale first applied fpr after the dissolution of the injunction, was refused, the district judge was of opinion that “ the' bant could not proceed against Walden by the via executiva, so long as the appeal was pending, for that appeal necessarily revived the injunction and that when the petition of appeal from the judgment of non-suit was presented to him, the-only required a bond and security in the sum and fifty dollars.
The judgment last appealed from, being only, it is clear that the appellant being boun bond and security for a sum exceeding one-hal! which the judgment was given against him, an ment being merely for costs, the bond was properly? the sum of 'two hundred and fifty dollars ; Code of Practice, art. 575. This was sufficient to make the appeal suspensive, 03? without reference to what had been previously done in the case.
But it is contended that in order to prevent the bank’s obtaining an order of seizure and sale, by virtue of the mortgage; that is to say: to give effect to and to revive the writ of injunction during the pendency of the cause before this court, the appellant ought to have furnished his appeal bond and security for three hundred thousand dollars, as the security on the injunction bond was only given to secure damages and not the debt. We cannot agree to this proposition: we conceive
It may be true that the appeal in question will perhaps occasion an improper delay to the bank, and will effectually suspend the ultimate recovery of the amount alleged to be due by the applicant, without any other security, as to the debt, than the property mortgaged which, having never been seized, remains in his possession; but it is equally true that no judg
We therefore consider that this is a proper case to require the application of the provisions contained in the articles 846 and follovjing of the Code of Practice: hut as the writ applied for is not a writ of right; and as we conceive it is in our power to grant it with, such conditions as will secure to the party who may suffer by it, a sufficient indemnity for the losses, trouble and delay, which it may perhaps unjustly and improperly occasion him to sustain. We think it our duty under the circumstances of the case, to require that, before the issuing of the writ of prohibition by him prayed for, the applicant shall file with the clerk of this, court, his additional bond in favor of the .City Bank, with good and sufficient security in solido, for the sum of seventy-five thousand dollars, conditioned that he shall pay all such damages as shall have been sustained by the said bank, in case it should be decided that the injunction heretofore obtained has been wrongfully sued out, and illegally and improperly kept in force on the appeal before this court.