
    No. 307.
    George H. Wiley v. Woodman & Bement.
    The execution of a judgment cannot bo suspended on a rule to show oause. A suspensive appeal will not lie from a judgment dismissing such a rule.
    Execution of judgment can only be suspended upon petition, affidavit and bond given for injunction.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.
    
      Race & Foster, for plaintiff and appellee.
    
      Emerson & Huntington, for defendants and appellants.
   Ilslex, J.

A rule was taken in the lower Court by the defendants upon the plaintiff, who had caused execution to issue on a judgment which he had obtained against them, to show cause why proceedings should not be stayed until a bearing could be bad upon wbat the defendants styled their “plea in bar,” which they had filed in Court, alleging “the plaintiff to be au alien enemy, residing in the State of Missouri, holding allegiance to the United States of America, and said plaintiff to be an enemy of the Confederate States, and praying for judgment to quash the writ of execution and prohibit further proceedings on the part of the plaintiff. ”

Erom the judgment dismissing the plea and maintaining the execution the present appeal was taken. ,

The proceeding was an anomalous one. A rule to show oause is not the legal remedy to arrest the progress of an execution upon a judgment obtained for a sum of money.

That can only be done upon a petition, affidavit and bond given for injunction. Code of Practice, 304 Amendment of Article 298 C. P. Act 7th April, 1826,-<¡9.

A suspensive appeal should not have been allowed. 9 An. 302.

The appeal is a frivolous one, and it is a proper case to allow damages, as prayed for. Art. 907 C. P.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with fifty dollars damages for a frivolous appeal, and that appellants pay all the costs of appeal.

Howell, J. recused.  