
    No. 10,327
    Orleans
    STATE EX REL. L. A. MAGENDIE v. CONSTABLE FIRST CITY COURT, ET AL.
    (January 4, 1926, Opinion and Decree)
    (February 1, 1926, Rehearing Refused)
    (March 30, 1926, Writ of Certiorari and Review Denied by the Supreme Court.)
    (See 1 La. App. 139.)
    
      (Syllabus by the Court.)
    
    1. Louisiana Digest—Mandamus—Par. 4.
    This court will not order the district court to grant a suspensive appeal from a judgment refusing an injunction to arrest the sale of property when it appears that the property has been sold by the constable.
    Application for writ of mandamus and injunction.
    Writs denied.
    Paul W. Maloney, of New Orleans, attorney for relator.
   CLAIBORNE, J.

This is an application for writs of certiorari, mandamus, and prohibition to compel the district judge to grant a “suspensive appeal from a judgment rendered by him in the suit of L. A. Magendie vs. Constable, No. 154,443 Civil District Court. The judgment complained of was one refusing an injunction to arrest the sale of an automobile claimed by plaintiff under a fieri facias issued against a third party. We are informed by the judge’s return to this application herein that the automobile seized and claimed by relator as his property has been advertised and sold by the constable and the proceeds of sale distributed by him.

Under the circumstances a “suspensive” appeal could no longer avail the relator and a writ from this court would be a mere brutem fulmen. Lemann vs. Ascension Parish School Board, 158 La. 81, 103 South. 517; State ex rel. Romain vs. Board of Supervisors of Election, 49 La. Ann. 578, 21 South. 731; Corbera & Klein Furniture Co., in re, 105 La. 119, 29 South. 488; 57 Ill. App. 529.

It is therefore ordered that the alternative writs heretofore issued be recalled and relator’s petition dismissed, reserving his rights to a petition for a devolutive appeal denied.

Writs denied.  