
    STATE OF LOUISIANA vs. JUDGE OF THE FIRST DISTRICT.
    Eastern Dis.
    
      July, 1841.
    ON AST ATDLICATION TOR A WRIT OB rROIIlBITION, Ilf THE MATTER 03? THE OITT BANK OE NEW ORLEANS VS. D. T. WALDEN.
    The plaintiff, in. Injunction, who is non-suited, is entitled to a suspensive appeal, on giving' his bond for the amount of the costs and one half over.
    In an Injunction case to restrain the adverse party from taking out an order of seizure and sale, when the plaintiff is non-suited and takes a suspensive appeal, a writ of prohibition will he granted to the Judge a quo, prohibiting him from proceeding to allow the order of seizure, until the party is heard on his appeal.
    Such as the Injunction originally was before the judgment of non-suit, so it. remains afterwards, until the appeal is tried; and no proceedings can he had until it is finally decided in the Supreme Court.
    A prohibition is not a writ of right, hut the court may grant it on such conditions as will secure to the party who may suffer by it, .sufficient indemnity for the trouble, delay and losses he may unjustly sustain.
    This cáse comes up on a rule taken by D. T. Walden? on the District Judge of the first judicial district, to show cause why a writ of prohibition should not issue, commanding him to abstain from all further proceedings in the case of the City Bank of New Orleans, against D. T. Walden.
    The petitioner, Walden, alleges that on the 26th of October, 1840, he commenced suit against the said City Bank to annul certain mortgages given by him to the Bank, on the ground that they were null and void: and that he prayed for and obtained an injunction against the Bank, to prevent it from taking out an order of seizure and sale, until the suit for the annulment of said mortgages could he tried and finally decided. That, on the 10th November following, the Bank took a rule on him to show cause why the injunction should not be dissolved and set aside; which rule, on hearing the parties, was made absolute, and judgment rendered setting the injunction aside; from which, this petitioner took a suspensive appeal on giving hond with a surety in the sum of $6000. That on the 8th December, 1840, the City Bank applied for an order of seizure and sale, which was refused hy the District Judge ; and from this refusal the Bank appealed, which is still ,. pending.
    ^10 petitioner further shows, that after this appeal was taken hy the City Bank, his injunction suit came on for trial . . and a judgment of non-suit was rendered against him, from which he took an appeal within the time required by law to stay execution, and gave bond and security for the amount of the judgment and one half over, in pursuance of the order of court. This bond was for only $250, the amount necessary to cover costs. That afterwards, to wit: on the 25th January, 1841, the District Judge granted an order of seizure and sale, by endorsing the same on the petition, on which he had previously refused said order. It is against this order.of seizure and sale, the petitioner prays a writ of prohibition to the District Judge to abstain from all proceedings in the matter until the further order of this court.
    
      The District Judge showed cause and set up various matters against the application. Among others he considered the judgment of non-suit as disposing of the injunction, and that the writ of seizure could properly issue; especially as he considered the appeal taken therefrom as not suspensive; the appeal bond being only for $250, and merely to cover costs, when the amount of the debt or matter in dispute exceeded $200,000.
    2. The petitioner h.as shown no legal grounds for a writ of prohibition in this case. His remedy, if he is injured or aggrieved by the order of this court granting the writ of seizure and sale, is by an appeal from it. It would be assuming original jurisdiction in the Supreme Court, to take cognizance of the case and award a writ of prohibition, when the remedy of the party is by appeal; and when they can extend the relief sought, in the exercise of their appellate jurisdiction, and to which, it is respectfully urged, they are restricted by th® constitution.
    
      Hoffman & Grymes, for the applicant*
    
      The District Judge also appeared in propria persona, and argued against the prohibition.
   Simon, J.

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 Walden vs. the City Bank has since been heard upon the me» Tits, and the court being of opinion that the plaintiff had failed to establish any right to the interposition of the court in his behalf, gave -judgment of non-suit. If no appeal had been , . . , . . , , , . taken from this judgment, it is apparent that the appeal from the judgment upon the rule to dissolve, would have become at once nugatory. The injunction granted was a mere accessory to the principal demand, the principal-demand being dismissed, it is obvious that its accessories, in whatever court pending, must share its fate.”

“ 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.

am0un/°of the ,c°í.s one plaintiff ^junction,, is ñoñ-is en:d to a sus-pensive appeal, on giving- liis

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 that, by obtaining his writ of injunction and furnishing the secur]ty reqUire¿ by the judge, Walden became entitled to the protection of the court, and to its interposition so as to prevent the 'seizure and sale of the property mortgaged as long as the . . . , matter m controversy remained undetermined. On the dissolution of the injunction with damages in the court below, he took a regular suspensive appeal, which necessarily had the effect of maintaining the injunction and of leaving the case and all the orders taken in it, in the same state in which they were previous to its being dissolved. The district judge himself was convinced of the correctness of this course, when he refused to grant the order of seizure and sale first applied for, and we are ° .... unable to see a*y good reason why after the trial of the injunction suit on its merits, and after a suspensive appeal had been granted from his judgment of non-suit, he shouldhave thought himself authorized to destroy the effect of his first decision, J and to deprive the applicant of the legal protection which had . .. . . .. been extended to him by the issuing of the writ oí injunction. If the order made by the district court granting an appeal from ^ ju^g'men,: dissolving the injunction, deprived that court of further jurisdiction in the cause, and transferred it to the appellate court, it is clear that it was not m the power of the . ... , . ,, .. inferior judge to take cognizance ot any proceeding which would have for its object the violation of an anterior order, which, by the appeal was revived or continued in full force ; and the more so that a similar application having already been made to him, after the injunction was dissolved, he had thought proper to refuse it as illegal or irregular, and that an appeal from this judgment had also been taken and was then and is now yet pending before the appellate court.

.In an InJunc‘ tion case to restrain the ad-framtakingpout seizure^61" and* “l1?’ ,Nh-en the plaintiff is non-suited and takes a suspensive appeal, a writ will be°granted prolubit-ing him from proceeding to allow the order of seizure, until the party is appeal. °U iUS

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 judgment was ever rendered against him for the said amount; that on the contrary the first demand made by the hank for an order of seizure and sale has been rejected ; and we know of no law that requires a.plaintiff in injunction, who has given his bond to secure the damages'which may he sustained by the defendant, and who, on appealing, gives another bond to secure the damages recovered against him, to furnish an additional appeal bond for the purpose of securing the amount of the debt. Such as the writ of injunction was originally granted and issued; such, after the appeal, must it continue to remain in its full force and effect, until the final determination of the suit in the appellate court. It is a well settled rule that “ after a cause is sent to the Supreme Court by regular appeal from any of the inferior tribunals of the State, the court of the first instance can no longer legally take any steps in a case they transferred, except such as may be necessary to transmit the record to the court above, in the manner provided by law.” Pemberton vs. Zacharie. 4 La. Rep., 205. See also, 6 Martin, N. S., 464; 7 Idem, 353; 8 Idem, 440; 5 La. Rep., 314, and 15 Idem, 391.

Such as the Injunction originally was before the judgment of non-suit, so it remains after-wards until the appeal is tried; and no proceedings can be had until it is finally decided in the Supreme Court.

A prohibition is not a writ of right, but the court may grant it on such conditions as will secure to the party who may suffer by it sufficient indemnity for the trouble, delay and losses he may unjustly sustain.

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.

It is therefore ordered, adjudged and decreed that a writ of prohibition issue, on the applicant’s complying with the condition above expressed before the expiration of this month, by £i¡no- lris bond with e-ood and sufficient security for the sum of seventy-five thousand dollars, conditioned as above specified.  