
    State v. Judge of District Court.
    An injunction should not be granted to suspend an execution, on the ground that the petition for a suspensive appeal and appeal bond were lost before the appeal was granted!
    The resignation and subsequent failure of one of the plaintiffs, who 'was a party to a judgment as sheriff, furnish no excuse for the defendant, to withhold payment to his successor in
    An application for a mandamus.
    This is an application for a mandamus, to compel the district judge to grant an injunction in a certain case to stay an execution.
    Thomas Hughes, J. Bellow, Jr., O. F. Hozey as sheriff1, recovered a judgment against the Louisiana State Marine and Fire Insurance Company, on a policy of insurance on the schooner Frederic Arnet.
    The attorney for the insurance company alleges he filed his petition with the clerk, and an appeal bond, to obtain a suspensive appeal in said case; but that both the petition and bond have been lost or mislaid, and the time [643] elapsed for obtaining such appeals. He further states that execution has issued on said judgment, and the sheriff is proceeding to seize and sell property; that the judgment is partly in favor of Hozey, in his official character as sheriff, and he has resigned and also made a surrender of his property, and is not entitled to receive any of said money. That he applied for an injunction to restrain and prohibit the sheriff from proceeding on said judgment and execution; which was refused; and he prays for a mandamus compelling him to grant the said order and writ of injunction.
    A rule was taken on the district judge to show cause why the mandamus should not issue, as prayed for.
    The judge showed cause, and the court took the case into consideration.
    
      O. M. Con/rad for the application.
   Martes, J.

delivered the opinion of the court.

On a rule to show cause why a mandamus should not issue, directing the district judge to grant an injunction in the case of Thomas Hughes et al. v. Louisiana State Marine and Fire Insurance Company, he showed for cause that the injunction had been demanded on three several grounds:

1. That the defendants in the above suit had deposited in the clerk’s office of the district court a petition and appeal bond from the judgment rendered against them, within the legal delay for a suspensive appeal, which petition and bond have been lost.

2. That the said judgment is jointly in favor of O. F. Hozey, in his official character as sheriff; but that he has resigned, and is no longer authorized to receive said debt.

3. That Hozey has made a surrender of his property to his creditors, and can no longer sue for or receive moneys due to him individually prior to his cession.

I. It appears to us that the applicant has mistaken his remedy, if any there be. On discovering that his petition and appeal bond were lost, it was [544] his duty immediately to do every thing in his power to prevent the ill consequences of this accident. He should have prepared another bond, and presented it to the judge, with a new petition of appeal, stating the previous facts, and loss of the first ones. The judge might then have considered whether these facts authorized the granting of any other than a devolutive appeal; and if they did, whether the execution that had issued in the mean time might have been enjoined. If the party thought himself injured by the decision of the judge on either of these points, he might then have resorted to us for relief. Were we to order an injunction to issue, the execution of a judgment, from which there is no appeal, would be indefinitely suspended.

n. The resignation of Hozey, one of the plaintiffs in said judgment, as sheriff of the parish, may give rise to the question whether his successor, when the money is received, may pay it over to him, or retain it by virtue of his office; but it is no reason to delay the collection.

ni. If Hozey has failed, and ceded his property to his creditors, the right of the syndic, to receive the money when collected, may also give rise to another question; but this is no reason why the collection of it should be delayed.

It is therefore ordered that the rule be discharged.  