
    No. 12,523.
    E. C. Drew vs. His Creditors.
    1. Incidental orders of a District Court made in the execution of a previous judgment of that court are generally not appealable.
    2. It is no ground for the dismissal of an appeal that papers involving proceedings 'which took place in the lower court at a date later than that of tbe judgment appealed from were omitted from the record. Tinder such a condition of facts the papers were properly omitted. If legally demandable by either party, for special reasons assigned, the party entitled thereto could have them produced by proper proceedings.
    3. When it is claimed in the Supreme Court, on a motion to dismiss by an appellee, that the appellant has, after taking his appeal,.forfeited the same by voluntary execution of the judgment, it is for that court to pass upon that question. Ordinarily its determination is dependent on matters enJ>ais, as to which oral testimony has to be taken. Under the practice of the Supreme Court it has been the rule to remand the case to the lower court to have such testimony taken before it contradictorily between the parties, with directions to forward the same to the Supreme Court for action. When, however, the evidence of the execution of the judgment by the appellant rests not upon matters enpais, but upon pleadings filed in the lower court by appellant after he has taken his appeal, provable bydulycer. tified copies of the same from the clerk of court, it would be a useless proceeding to remand the case, in order to have this copy embodied in the transcript. The annexing by the appellee of such cert.fled copy to the motion to dismiss is sufficient in the absence of allegation and showing of injury.
    4. Whereupon arule taken upon a party to show cause why he should not be punished for contempt for failing to obey an order of court directing him to make a cession of his property he attempted unsuccessfully to justify his action by claiming that he had appealed from such order, aud that his appeal, though under a bond simply for costs, had stayed the execution of the judgment and divested the District Court of jurisdiction, he should, when ordered to be imprisoned for contempt, if he did not obey the order, within a fixed delay, have applied to the Supreme Court for a writ of prohibition or certiorari. He can not, after having made the cession as ordered, and done away with the order of imprisonment, bring up and have tested through a devolutive appeal from the action of the court on the rule for contempt, the legality or correctness of that order. He can not substitute a devolutive appeal from an executed judgment for a prohibition or certiorari.
    
    5. An issue incidentally thrown into a pending suit solely for the purpose of determining the conclusions to be reached in the latter, can not, when the real issue in the case has been finally disposed of, be detached from it and made the subject of a separate and independent appeal. Succession of Rose, 48 An. 423; Gathe and .Broussard vs Hiriart, 49 An 313.
    6. Where a party ordered to make a cession of his property subsequently makes the surrender as ordered by the court, asking that his cession be accepted, and that he be fully discharged, and a meeting of creditors is held on his own petition, and a syndic nominated and elected, he takes his case outside and beyond the doctrine of the decisions in Factors and Traders’Insurance Oo. vs. Harbor Protection Co., 37 An. 233, and Ouny vs. Dudley, 6 R, 77, aud forfeits his right of appeal by voluntary acquiescence.
    
      7. It is immaterial that appellant stated that tile cession was made “under protest;” when by liis affirmative prayer lie prays that his cesslo bonorum be accepted, and that after legal delays and formalities he bo ftuly discharged.
    A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.
    
    
      Dormon <& Dormon, W. U. Richardson, J. W. Holberi and D. W. Stewart for Plaintiffs, various Creditors in Rule, Appellees.
    
      J, O. Thens for Drew, Defendant in Rule, Appellant.
    Argued and submitted June 1, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused December 1, 1897.
    Statement of Facts.
    E. 0. Drew having applied for the bene.fit of a respite, certain of his creditors made opposition to the same. The District Oourt on the 16th day of July, 1896, rejected the application, but, simultaneously, ordered the applicant to make a surrender of his property within ten days and granted him an appeal, suspensive in character, upon furnishing a bond of five thousand dollars and devolutive upon furnishing a bond of five hundred dollars.
    Drew on the 30th day of July, 1896, furnished a bond for five hundred dollars, the recitals of the same stating that “ it was conditioned for a devolutive appeal from the judgment.”
    The Supreme Oourt on appeal affirmed the judgment in so far as it rejected the application for a respite, but reversed it in so far as it ordered a forced surrender to be made. The case will be found reported in the 49 An.
    On the 1st of October, 1896, the District Oourt, upon the application of the opposing creditors, ordered Drew to show cause in open court on the 22d of October why he should not be held as in contempt of court and punished therefor for failing and refusing to obey the judgment and orders of the court and filing his schedule and making the surrender in insolvency as required of him in said orders and -judgment, and also to show cause why a day should not be fixed for a meeting of his creditors as required and prayed for.
    Drew for answer to the rule averred that he had taken an appeal and had perfected same by giving bond for costs within ten-days from the filing of the judgment in the respite proceedings sustaining the opposition and ordering him to make a surrender. That he had the right of appeal on said opposition, and that said bond was-under the law a suspensive appeal bond, and to file a schedule-of insolvency would be to acquiesce in the judgment appealed from of which he complained. That if said appeal bond was not good for a suspensive, it was good for a devolutive appeal. That the judgment appealed from was not for any specific sum of money, nor for the delivery of real estate nor movables, and that a bond for costs therefore was sufficient for a suspensive appeal. That he had the right, under said order of appeal granted and bond given, to an appeal from the judgment to the Supreme Court and to have same decided on appeal before he could be compelled to make a surrender.
    That he had not complied with the judgment and filed his schedule for the reason that he would thereby have acquiesced in the judgment then on appeal, and this action would have resulted in defeating his appeal and caused it to be dismissed. That his failure to-comply was not due to any disrespect to the court or its decrees, but-for the purpose of preventing an irreparable injury, as he had the right to do under the law. That all of his acts were done under the advice of his counsel, and he desired to exercise his right of appeal and have said judgment reversed thereon. That he had made efforts to give the suspensive bond as fixed, but it-was utterly impossible for him to execute said bond, as all of his property and funds were in-the hands of the court under writs of attachment sued out by the-opposing and other creditors and under the respite proceedings and schedule in the case.
    On the 28th of October, 1898, the District Oourt ordered and decreed that the rule be made absolute and that E. 0. Drew be incarcerated in the parish jail for a period of ten days, or until he complied with the orders of court, and that the clerk of court, e£-officio notary public, convoke and hold a meeting of creditors to appoint a syndic and to vote on the acceptance of the surrender, and that Drew be granted an extension of ten days from the adjournment of court in which to file his schedule.
    
      On the next day Drew applied for and obtained an order of appeal, suspensive and devolutive, from this judgment of the court, the court fixing the bond for a suspensive appeal at five thousand, and that for a devolutive appeal at five hundred dollars.
    On the 19th of April, 1897, Drew filed a petition in the District Court in which, after inciting the fact that he had obtained an order for appeal — (suspensive and devolutive) but that the appeals had not been perfected — that he desired that said orders be rescinded and a new order fora devolutive appeal be granted, “he prayed that the first ordei’s be rescinded and the court grant him an order of devolutive appeal.” The court acted upon this application; rescinded the original orders of appeal and granted a new order for a devolutive appeal upon furnishing a bond of one hundred dollars. Bond was furnished as ordered on the 1st of May, 1897.
    Appellees moved in the Supreme Oourt to dismiss the appeal for the reason, first, that the entire record had not been sent up in the transcript; that there had been a schedule of assets and liabilities and motion making a surrender, filed in obedience to the order of the court appealed from, also a meeting of creditors held for the purpose of electing a syndic and acting upon said surrender; that that schedule and motion and prooes verbal of meeting of creditors had not been made a part of said transcript — that they were necessary parts of the record to be considered on appeal in this case.
    2. That the appellant Drew had acquiesced in the judgment appealed from by making the surrender as ordered and by actively participating in the proceedings of meeting of creditors in the way of nominating and urging the election of the syndic of his choice who was elected by alleging that “ he was an honest but unfortunate debtor and entitled to the benefit of the insolvent laws,” and “ praying that his eessio bonorum be accepted and that he be fully discharged ” — that he had sent out circular letters to his creditors Soliciting them to send powers of attorney to his attorney, J. 0. Theus, in order that the said attorney might cast the votes of said creditors for his choice for syndic and the acceptance of surrender— for his discharge and for the sale of the assets in the manner he desired, one of which circular letters and blank powers of attorney they annexed. That he had used every effort in his power to have said surrender accepted and himself discharged, and lacked but few votes of having his discharge voted.
    
      Appellees subsequently amended their motion by making part thereof “the certificate of the clerk of the court showing the omission from the record of material parts of the same in the lower court by the instructions of the appellant or his attorney [without which they declared appellee could not be heard on appeal] and by annexing for consideration a certified copy of the parts of the record so omitted.
    The document so annexed was as follows:
    District Oourt, Bienville Parish, State of Louisiana.
    E. 0. Drew vs. His Creditors. | No. 1577.
    Now comes E. 0. Drew, plaintiff herein, and in obedience to judgment of the Honorable Court decreeing him to be insolvent, and ordering him to take a surrender of his property and under protest and without acquiescing in the judgment or abandoning his appeal, herewith presents a true, correct and faithful schedule of his assets of every nature and kind, except those exempt by law from seizure and sale and all of which assets are delivered and turned over to B. M. Manning, sheriff, provisional syndic, appointed by the court, except certain notes which are pledged to the Bank of North Louisiana, and fifty-six bales of cotton which are likewise pledged to said bank and note of Mrs. M. B. Winfield which had been misplaced: all of which had been pledged before the filing of the respite proceedings and which is shown by said schedule and also plaintiff’s books which are already in the possession of the court, and plaintiff presents herewith a true and perfect schedule or list of his creditors and the respective amounts due each of them, and which schedules are hereto annexed and made a part hereof as if the same were copied and recorded in the body of the motion.
    Plaintiff further shows that he is an honest but unfortunate debtor, and that he is entitled to the benefit of the insolvent laws favoring such debtors, and he hence prays that his eessio bonorum be accepted. That after legal delays and formalities he bs fully discharged. He prays for all other orders and decrees necessary and for general relief.
    (Signed) J. 0. Theus,
    
      Attorney.
    
    
      E. 0. Drew being by me duly sworn says: Thab all the allegations above set forth are true and correct. So help him God.
    (Signed) B. 0. Deew.
    Sworn to and subscribed before me this 6th day of November, 1896.
    (Signed) P. L. Mayfield,
    
      Deputy Clerk District Court.
    
    I certify the above to be a true and correct copy of the original on file and of record in my office.
    (Seal) (Signed) F. L. Mayfield,
    
      Deputy Clerk District Court, Bienville Parish, Louisiana.
    
    In opposition to the motion to dismiss, appellant referred to 1 La. '296, Leggett vs. Peet et al.; 24 An. 468, Yale vs. Howard; Johnson vs. Clark & Meader, 29 An. 762; Verges vs. Sheriff, S3 An. 410; .Jackson vs. Michie, 33 An. 724; and particularly to 37 An. 233, Factors & Traders’ Insurance Company vs. Harbor Protection Company, and Cuny vs. Dudley, 6 Rob. 77. He further contended that there was no evidence before the court of any fact tending to show .acquiescence in the judgment, and thab under no contingency could the court do more than remand the case. 32 An. 561.
    In appellant’s brief he said: “The judgment ordered respondent imprisoned in case the cession was nob filed within a prescribed time, and ordered a writ of arrest to issue at the expiration of the time in case the cession was not filed. The respondent being unable to give the suspensive appeal bond as fixed by the court under compulsion and under protest filed the schedule. The cession says that it is made under protest, and without waiving his right of appeal. This can not and does not acquiesce in the judgment and bar the ■right of appeal.”
   'The opinion of the court was delivered by

Nicholls, C. J.

The decree from which the present appeal is taken •directed that E. 0. Drew be incarcerated in the parish jail for a period ■of ten days, or until he comply with.the judgment of the court. It was rendered on a rule taken on him to show cause why he should not be punished for contempt of court in not executing the judgment which had ordered him to make a cession of his property within a specified delay.

In his answer to this rule Drew sought to excuse his non-execution of the judgment by claiming that had he done so without a direct, peremptory order so to do from the court, of a date later than that of the judgment, his action might have been construed as a voluntary acquiescence in the judgment, andmighthave cut him off from the appeal which he had taken from the judgment, which had-rejected his demand for a respite and ordered him to make a surrender.

The court overruled this objection, and entered the peremptory order for the execution of the judgment, which he had deemed necessary to have interposed as a safeguard for the prosecution of the appeal which he had taken. This decree having been made, Drew surrendered his property as ordered, though he declared in so doing that this was “ under protest and without acquiescing in the judgment or abandoning his appeal.”

The apprehension he was under that, in consequence of the execution'of the judgment prior to his appeal having been taken up and disposed of, the latter might be dismissed, was groundle s, as in due course the appeal was taken up and a final judgment rendered, affirming the judgment in so far as it rejected the application for a respite; but reversed it in so far as it ordered the applicant to make a surrender of his property.

The effect of the compliance by Drew with the orders of the court, whether done voluntarily or as the result of legal coercion, was to do away entirely and forever with the imprisonment which had been decreed on the trial of the mle for contempt of court. When the present appeal reaches us we find that the decree now appealed from has ceased to exist, and that this court has by its own judgment rendered in the main case (of which the order appealed from was a mere incident) already decided that that judgment was erroneous in so far as it ordered a cessio bonorwm to be made. In addition to this we find that the judgment of court ordering the surrender of property has in the meantime been executed in the lower court, on the ground that the appeal taken therefrom was not a suspensive, but a devolutive appeal. What precise, advantage appellant would, under the circumstances, expect to derive through this appeal, even if it were maintained, we do not see. We could not deal with the original judgment on this appeal, and besides our own judgment thereon, in so far as it annulled the same, has already furnished appellant with a basis for the protection or enforcement of his rights, if any such he has, resulting from the fact that there was error in such judgment as declared by us.

The reasons set up by appellant in his answer to the rule were raised to ward off possible punishment under that proceeding as incidental to the question of contempt. That issue and question having been entirely disposed of, we have not been advised of any substantive issues remaining to be passed on as matters for separate, independent adjudication. Succession of Rose, 48 An. 423; Gathe vs. Broussard & Hiriat, 49 An. 313.

The order appealed from was an incidental order of the District Court, made in execution of a previous judgment of that court. We have held a -number of times that, as a general rule, decrees of that character are not appealable. See Boutte vs. Executors of Boutte, 30 An. 180; State ex rel. Elder vs. Judge of the Third District Court, 30 An. 229; State ex rel. Remington Paper Co. vs. Ellis, Judge, 45 An. 1418; Murphy vs. Murphy, 45 An. 1484; Durward vs. Jewett, 46 An. 707; Succession of Bey, 47 An. 219; Wiley vs. Woodman, 19 An. 210; State vs. Judge of the Second District Court, 9 An. 302; Boyer vs. Sheriff, 46 An. 769.

We think this ease falls under the application of the general rule. We note the reason assigned by appellant in his answer to the rule for contempt that the bond furnished by him for costs carried with it as a consequence [by reason of the character of the judgment appealed from] a stay of execution of the judgment, and that, therefore, he was not called on to execute the judgment until after the appeal taken had been passed upon by the Supreme Court. The judgment appealed from covered two matters — it rejected Drew’s application for a respite and thereby set aside the stay of proceedings which had been granted at the beginning of the proceedings and it ordered a cession of property to be made within ten days. He appealed from it in its entirety. The court granted him at his choice either a suspensive or a devolutive appeal — a suspensive appeal on his furnishing bond in five thousand or a devolutive appeal on his furnishing bond for five hundred dollars. The latter bond was furnished. When called into court to show cause why he should not be punished for contempt, he assigned as a reason justifying his non-action that execution of the judgment was stayed by his appeal on a bond for five hundred dollars. This was substantially an exception to the jurisdiction of the District Oourt, a claim that the whole matter had been transferred for determination to the Supreme Oourt and a contention that the lower court was without power or authority to have the judgment executed pending the appeal. By this exception he had placed himself in a position, in the event of an adverse ruling, to test the character of the appeal and the legal situation or parties, through a writ of prohibition asked for from this court and directed against the District Judge. That was his proper remedy in the premises.

Instead of pursuing that course he at his own instance obtained a devolutive appeal from the decree for contempt and executed the orders of the court. We are advised by appellant’s own brief that the cession ordered has been made. To what extent it has proceeded we do not know, though appellees inform us that on one branch of the ease matters have gone so far as to have reached a vote on the question as to whether appellant should be discharged from all his debts, and that this question had been by a few votes decided adversely to the discharge. It is quite possible and probable that third parties have acquired rights based upon the execution of the judgment. Appellant can not be allowed to substitute a devolutive appeal from an executed judgment for a prohibition or certiorari. We have not so far directed our attention to the specific motion for dismissal filed by the appellees. We now do so.

It is no ground for dismissal that the papers referred to were not copied in the transcript. As they consisted of proceedings which took place in the lower court at a date later than that of the judgment appealed from, they were properly omitted from the record. If legally demandable by either party for special reasons assigned, the party entitled thereto could have them produced by proper proceedings.

Appellant contends that those papers not forming part of the transcript, there is no evidence before us of the facts on which ap-pellees base their claim of acquiescence by him in the judgment, and that we, under no contingency, could do more than remand the case. When it is claimed by an appellee that the appellant has, after having taken his appeal, forfeited the same by voluntary execution of the. judgment, it is for this court to pass upon that question. Ordinarily, its determination is dependent upon matters en pais as to which oral testimony has to be taken. Under such circumstances our practice has been to remand the case to the lower court, to have such testimony taken before it contradictorily between the parties, with directions to forward the same to this court for its consideration and action. When the evidence of the execution rests not upon matters in pais but upon pleadings filed in the lower court by the appellant himself after he had taken his appeal, provable by duly certified copy of the same from the clerk of court, it would be a useless proceeding to remand the cause in order to have this copy embodied into the transcript. Under such circumstances, we think, the course pursued here by the appellees of annexing such certified copy to the motion to dismiss sufficient. If there should be in any special case reasons which would make this particular course prejudicial to the appellant the court would see, of course, on assignment of such, that he was not injured and would depart from it.

Coming to the facts urged by appellees for dismissal we are of opinion, that appellant, by the allegations contained in his pleadings accompanying his final schedules and by his prayer therein asking affirmative relief, has taken his case outside and beyond the doctrine of the decisions in Factors and Traders’ Insurance Co. vs. New Harbor Protection Co., 37 An. 233, and Cuny vs. Dudley, 6 Rob. 77. Appellant obviously contemplated that the cession he was then making should stand and be continued to the end independently of whether it was improperly or illegally called for by order of court or not. It is true that appellant stated he made the cession under protest,” but none the less he affirmatively prayed that his eessio bonorum be accepted and that after legal delays and formalities he be fully discharged.” This protest was clearly made to guard against a possible motion which might be made to dismiss the appeal from the main judgment, which appeal was then pending. That object was fully accomplished, as the appeal was entertained and passed upon. We think the maxim “ Protestatio aotio contraria non prodest” controls this case. We think the appeal should be and it is hereby dismissed.  