Zahn v. Unknown Owners, No. 26319

No. 26319 | La. | Nov 19, 1923

LAND, J.

On October 8, 1923, Bernhardt J. Zahn, alleging himself to be the purchaser of certain property described in his petition at certain city tax sales for city taxes for the year 1922 applied' to the civil district court of the parish of Orleans for an ex parte writ of possession, averring that petitioner’s tax titles had been of record in the conveyance office in the city of New Orleans for over one year, and also his right to be sent into the actual possession of said property. Upon the presentation of this petition, Hon. Wm. H. Byrnes, Jr., one of the judges of said court, Division E, signed an order on October 8, 1923, issuing a writ of seizure and possession directed to the civil sheriff of the parish of Orleans, and authorizing and commanding him to seize the property in question, and to place the petitioner, Bernhardt J. Zahn, in the actual possession of same in accordance with law.

On October 19, 1923, Bertrand Kiern applied by petition to the civil district court of the parish of Orleans for a suspensive and devolutive appeal to this court from said order issuing said writ of possession, alleging that he was injured and aggrieved thereby, as the property in controversy belonged to the Simplex Flour Company, Inc., and as he was a creditor of said corporation, whose domicil is in the city of New Orleans, in the sum of $3,000.

On October 19, 1923, Hon. M. M. Boatner, one of the judges of the civil district court of the parish of Orleans, signed an order granting to Bertrand Kiern an appeal, suspensive and devolutive from said order granting said writ of possession, returnable to this court December 15, 1923, and fixing the amount of the suspensive appeal bond in the sum of $2,000 and the amount of the devolutive appeal bond in the sum of $100< Bonds both for a suspensive and for a devolutive appeal, and in the respective sums fixed by the order of the court, were duly executed by Bertrand Kiern, and filed in the ease in the civil district court of the parish of Orleans on October 19, 1923.

The case is before us upon the application of Bertrand Kiern, for writs of certiorari and prohibition to be directed to the clerk and sheriff of the civil district court, ordering them to send up the record in this case, and restraining and prohibiting the sheriff of said court from taking any further steps or proceedings in the case of “In re Bernhardt X Zahn, Praying for Writ of Possession against Unknown Owner,” No. 149349 of the docket of the civil district court of the parish of Orleans.

Said application is based upon the ground that the suspensive appeal granted to relat- or, and timely perfected by him, suspended all steps and proceedings in said matter in said civil district court, and that said sheriff is attempting and is about to serve and execute said writ, when he is without right, power, or authority to take such action.

[1] Whether the relator, a third person, has alleged sufficient interest to entitle him to prosecute this appeal, or whether relator has failed to perfect his appeal by giving notice to both plaintiff and defendant in the proceeding in the lower court, are matters urged by respondent judge against the granting of this application, but these are matters which should be presented in a motion to dismiss the appeal, and cannot be considered by us in disposing of this application.

[2] The question also whether the evidence before the lower court was such as is required by section 66 of Act 170 of 1898 as a basis for the issuance of the writ of possession is a matter affecting the merits, tó be decided after hearing the case on appeal.

A suspensive appeal has been granted by the civil district court of the parish of Orleans, and this appeal has been perfected by the giving and the filing of a suspensive appeal bond in that court within 10 days after the granting of the order in this case.

The question presented to us is not whether a suspensive appeal can be taken in this case; it has already been taken.

[3] Should we refuse the writ of prohibition applied for in this ease, we would render the suspensive appeal taken by the relat- or a futile proceeding, as such action upon our part would be a consent to the execution of the judgment of the lower court during the pendency of the suspensive appeal. The effect of a suspensive appeal is to stay execution and all further proceedings until definitive judgment be rendered on appeal. O. P. art. 575.

It is therefore our clear duty to maintain the status quo until this appeal can be reached in due course by this court.

The Supreme Court, in aid of its jurisdiction, original, appellate, or supervisory, may issue “writs of mandamus, certiorari, prohibition, quo warranto, .and all other needful writs, orders and process.” Const. 1921, § 2, art. 7.

Article 130 of the Code of Practice declares that—

“all judges possess the powers necessary for the exercise of their respective jurisdictions, though the same be not expressly given by law.”

This court, therefore, is clothed with ample power to protect the rights of appellants during the pendency of suspensive appeals, before lodged here, and also to prevent its appellate jurisdiction from being rendered nugatory by the execution of the judgment of the lower court before the appeal to this court can be heard and disposed of properly. A case quite similar to the present one arose in an application to this court for a writ of prohibition in State ex rel. Barbin v. Strong, Secretary of State. In that case a judgment had been rendered by the Fifth court of New Orleans, directing- the secretary of state “to compile the ballots and votes returned by the commissioners of Grant parish, ward No. 2, as counted under the orders of the parish court of that parish, and to include the same in his official declaration and promulgation, of the vote cast for district judge of the Twelfth judicial district as showing the prima facie result of said election.” Aristide Barbin, alleging- his interest, took a suspensive appeal from that judgment, and also applied for a writ prohibiting the secretary of state from executing that judgment pending his appeal, and a writ of prohibition was issued by this court in that case. Man. Unrep. Oas. 434.

[4] The relator in this case is a third person, and, alleging his interest, has taken a suspensive appeal from the judgment of the lower court ordering the sheriff to place the tax purchaser in the possession of the property alleged to have been acquired under his tax titles. Not only the parties to the cause, but third persons, not parties to such cause, may appeal when such third persons allege they have been aggrieved by the judgment. O.P. art. 571.

Relator is therefore entitled to the relief for which he prays.

It is therefore ordered that a writ of prohibition issue in this case to the honorable William H. Byrnes, Jr., judge of tbe civil district court of the parish of Orleans, division E,. and to Joseph A. Le Besque, civil sheriff of the parish of Orleans, restraining and prohibiting them, and each one of them, from taking any further step or proceeding, until the further orders of this court, in the matter entitled “In re Bernhardt J. Zahn, Praying for a Writ of- Possession against Unknown Owners,” No. 149349 of the docket of said civil district court of the parish of Orleans.