
    No. 1729.
    State of Louisiana, ex rel., A. Sarrat & Co., v. The Judge of the Second District Court of New Orleans.
    A obtained an order of seizure and sale on mortgaged notes whioh on motion of B was set aside on tbe ground that tbe property mortgaged was inventoried as succession property. A took a suspensive appeal from the judgment of the Court making the rule absolute. Tlie Judge of the court after-wards granted an order of sale of the same property, on application of the executrix to pay the debts of the succession. A applies to the Supreme Court for a writ of prohibition against the Judge, on the ground that the sale of the property cannot be affected while the appeal is pending: Unid ,That it notappearing that the Judge is transcending his jurisdiction, in the mortuary proceedings, nor is he taking any steps in the case in which he granted an appeal that will affect tne jurisdiction of the appellate court, the writ of prohibition will not be granted.
    WRIT OF PROHIBITION.
    
      J. W. Thomas, Judge of tbe Second District Court of New Orleans.
    
      G. Schmidt, for A. Sarrat & Co.
   Howell, J.

The relators, being the holders of a mortgage note, signed by Mrs. S. A. Ashbridge, obtained from the Second District Court of New Orleans a writ of seizure and sale against tlie mortgaged property as belonging to her in a suit entitled A. Sarrat & Co. v. Mrs. S. A. Ashbridge, making the allegation in their petition that said property had been inventoried as community property in the succession of D. W. Ashbridge, the deceased husband of their debtor; whereupon, Mrs. Ashbridge, as testamentary executrix of the last will of D. W. Ashbridge, took a rule to set aside the executory proceedings, on the grounds that the succession of D. W. Ashbridge was in due course of administration, and it is illegal to proceed by executory process against succession property; which rule was made absolute, and plain tiff's (defendants in the rule) appealed, giving bond, as fixed by the court, in the sum of $150 in favor of Mrs. 8. A. Ashbridge.

Subsequently, Mrs. Ashbridge, as executrix, obtained an order in the mortuary proceedings, for the sale, by an auctioneer, of the same property* to pay the debts of the succession of D. W. Ashbridge, and the plaintiff's in the executory proceedings in which the appeal was granted, have applied for a writ of prohibition to restrain the Judge, the executrix and the auctioneer from proceeding with the said side.

The Judge answers that the petition discloses no legal ground for thé writ, because, among other reasons, a suspensive appeal from the judgment setting aside the writ of seizure and sale in the case of A. Sarrat & Co., v. Mrs. S. A. Ashbridge, does not operate in law as a suspension of an order of sale on the matter of the succession of D. W. Ashbridge, and that no suspensive appeal was applied for or obtained by the relators. We consider the first position taken by the Judge to be correct, and that the relators are not entitled to the remedy to which they have resorted. The appeal was taken in a suit between different parties from those in the proceeding in which the order complained of was issued; the probability or fact that the rights of the relators may be affected by the execution of said order, will not authorize the writ of prohibition; as it does not appear that the Judge is transcending his jurisdiction in the said mortuary proceedings, or is taking any steps, in the case in which he has granted an appeal, which will affect the jurisdiction of the appellate conrt.

It is therefore ordered that the provisional writ issued herein, be set aside, and the application of relators refused, with costs.  