Summary
In Agricultural Supply Co., Inc., v. Livigne, 177 La. 15, 147 So. 365, the Supreme Court reached the same conclusion. See, also, Baton Rouge Production Credit Ass'n v. Newsom, La. App., 191 So. 154; State ex rel. Lindsay v. Hemenway, La. App., 159 So. 183.
Summary of this case from State v. HamlinOpinion
No. 32249.
March 27, 1933.
Suit by the Agricultural Supply Company, Inc., against Biaggio Livigne and another. Judgment in favor of plaintiff, which seized property under execution, and Frank P. Livigne intervened in the seizure. A rule for a preliminary injunction was dismissed by the Hon. Nathan B. Tycer, Judge of the District Court, who refused to grant an application for a suspensive appeal, and intervener petitions to Supreme Court for writs of prohibition and mandamus to compel the granting to him of a suspensive appeal.
Peremptory writ of mandamus issued.
Ponder Ponder, of Amite, for relator.
Ellis, Ellis Ellis, of Amite, for respondent.
Agricultural Supply Company, Inc., obtained judgment for about $700 against the defendants Biaggio and Caterina Livigne, and seized under execution a block and a half in the town of Independence, parish of Tangipahoa, and advertised same for sale.
Relator, Frank P. Livigne, intervened in the seizure, alleging that he had purchased from defendants on August 2, 1930, for the price of $2,500, the property herein seized by plaintiff, and had duly recorded his notarial act of sale; but that, subsequent to his purchase and the recordation of his deed, plaintiff obtained judgment against his vendors, and on December 1, 1932, seized the property of relator and advertised same for sale on January 14, 1933.
Relator filed a rule for a preliminary injunction returnable on January 12, 1933, and, upon failure of the district judge to appear, the rule was continued, and relator then obtained a temporary restraining order for a period of ten days, pending the trial of the rule for a preliminary injunction.
When hearing was had on the rule, respondent judge proceeded to render judgment decreeing the sale from defendants to relator to be a pure simulation and null and void, as specially set up in answer of plaintiff, defendant in rule. He also dismissed the rule at relator's costs, and reserved to plaintiff the right to sue for damages for the wrongful issuance of the temporary restraining order herein granted.
Relator timely applied for a suspensive appeal from the judgment herein rendered against him. Respondent judge refused to grant the application and, thereupon, relator petitioned to this court for writs of prohibition and mandamus to stay further proceedings and to compel the granting to him of a suspensive appeal.
On the trial of the rule for a preliminary injunction, the only question for decision before respondent judge was whether such injunction should be granted or refused. Act No. 29 of 1924, § 2.
It is true that a suspensive appeal cannot be applied for as a matter of right from an order granting or refusing a preliminary injunction. Act No. 29 of 1924, § 5.
But, in the case before us, respondent judge has not only refused to grant a preliminary injunction, but has passed also upon the merits of the case, by decreeing the nullity of the sale from defendants to relator of the property herein seized by plaintiff.
Necessarily, this is a final judgment from which relator has the right to prosecute a suspensive appeal to this court. C.P. arts. 539, 565.
It is therefore ordered that a peremptory writ of mandamus issue herein to respondent Judge, the Hon. Nathan B. Tycer, directing him to grant relator, Frank P. Livigne, an order for a suspensive appeal to this court, returnable according to law, from the judgment read and signed in the lower court, January 24, 1933, and to fix the amount of suspensive appeal bond.