
    No. 6526.
    Jourdain Savoie, Administrator, vs. P. A. Thibodaux.
    Where the defendant, who has been east, fails to appeal, or to join in the appeal taken by the plaintiff, and thereby acquiesces in the judgment, he can not, after this court has affirmed the judgment and the plaintiff proceeds to execute it, enjoin its execution; even though it appear that the plaintiff issued his fieri facias before the judgment of this court was filed and recorded in the court below'. 11 "
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche, Beattie, J.
    
      J. S. Goode, for plaintiff and appellant. 0. Knobloch, for defendant.
   The opinion of the court was delivered by

Spencer, J.

It appears from the record and statement of facts in this case that the plaintiff, as administrator, holding certain notes of defendant, secured by mortgage and vendor’s lien, proceeded via ordinaria to obtain judgment therefor and a decree of foreclosure. On the judgment thus obtained a writ of fieri facias was issued, and the mortgaged property seized and advertised for sale. Defendant sued out an injunction, claiming a credit of four hundred dollars on the judgment and execution. The court below perpetuated the injunction to the extent of the credit claimed, and dissolved it, without damages, for the balance. From this judgment the plaintiff, Savoie, alone appealed. On the fourteenth of February, 1876, the Supreme Court rendered its decision affirming the judgment of the lower court. The sheriff, pending the injunction and •appeal, of course, suspended proceedings under the writ, returning the original and retaining a copy at the end of seventy days, as the law directs. On the twenty-sixth of February, 1876, the sheriff again- advertised the property for sale on the first of April, 1876. On the morning of the thirty-first of March, 1876, the attorney of defendant in execution called at the clerk’s office and was informed that the decree of the Supreme Court had not been received or filed. At noon of that day •(thirty-first of March) the opinion and decree was received and filed in the clerk’s office. It is also admitted that the credit of four hundred dollars allowed by the district and Supreme Courts was indorsed on the execution on the thirty-first of March, 1876.

On the evening of the thirty-first of March the defendant in execution -(P. A. Thibodaux) filed another injunction, in which he alleges and recites the history of the case, and that the plaintiff, Savoie, had taken an appeal to the Supreme Court, and that the mandate and decree of said court had not been “ returned, filed, recorded, or spread upon the minutes of the clerk’s office of the district court,” and that notwithstanding this fact, the plaintiff and sheriff were proceeding to offer said property for sale again, and had advertised it for sale on the first Saturday of April, 1876.

"^made other charges of irregularity- which were abandoned in the lower court and not insisted upon here.

The sole ground upon which defendant in execution rests his injunction is;-the prematurity of the proceeding. He does not allege or pretend-that the plaintiff'was seeking to sell the property for more than, was due under the judgment of .the district court. He admits that the execution was credited'with the four hundred dollars allowed by the district court, by indorsing the same thereon.on the thirty-first of March, 1876, and as-he does not complain of any excess in the amount of the execution, it is; fair to presume that he was cognizant of the fact at the time of filing, his-injunction.

As the- defendant did not appeal, or seek to have the judgment changed in his first injunction, suit, it is perfectly clear that he had no interest-in . refusing to pay the amount of the judgment, of the district court. He-had, acquiesced in. that by seeking no relief onjappeal..-■ Th® Supreme Court, could not have reduced, the amount of the judgment of the dis- . trict court, because defendant had not appealed or asked-it. As-long-, therefore as .the plaintiff sought to recover by execution only the amount, allowed by the. district pourt, the defendant had no right to complain-. He could not hope to pay less, because the appellate court had no power or right to decree him to pay'less. What injustice, then, was done defendant-by the proceeding? He does not pretend that plaintiff.was. executing his property for more than the amount allowed by the district court, whose judgment as to him was a finality. So far from working,, him an injustice, it would have been a benefit to him if plaintiff had proceeded with the execution before the decision|of the Supreme Court, for-, then the defendant could have gone into that court and entered a plea, that plaintiff had acquiesced in the judgment of the district court by prosecuting its execution. Plaintiff couldjabandon his appeal at anytime, as no change of - the judgment was sought .by the defendant, andi the enforcement of the judgment of the district court before obtaining ad-judgment on his appeal would have been such an abandonment by acquiescence.

Plaintiff’s 'case can not surely be- worse for. his enforcing execution after the decision on appeal than it would have, been had-he sought to enforce it before the. decision on. appeal. We have seen that he had a, \ perfect right to abandon his appeal and. to acquiesce in. the judgment-, appealed from at any time, and ¡to enforce, it. By. so doing he. does de- , fendant no injury, since defendant, himself -not. appealing, acknowledges-, thereby the justice .of-the judgment, and has.no right,to complain at its-. execution, and .abuses .-the-process, of court-byenjoiningit.. This view.of ■ the case renders it unnecessary for us to-decide whether, where .the Supreme Court has simply affirmed a judgment of the court below, and’ ••the delays for rehearing have expired, and the judgment has’become .final, it is sacramental that its mandate should-be filed and recorded in •the court below before proceeding to execute, a writ of fieri 'facias that has been enjoined in the Sheriff’s hands.

It is therefore ordered, adjudged, and decreed that the judgment of the ■district court be avoided and reversed. And proceeding now to render -such judgment as should have been rendered, it is ordered, adjudged, •and decreed that the injunction sued out by the defendant be dissolved •and set aside, and that he pay costs of both courts.  