
    GARCIA & BUYO vs. THEIR CREDITORS.
    Eastern Dist.
    
      January, 1836.
    RULE ON THE PARISH JUDGE FOR THE PARISH AND CITY OF NEW-ORLEANS, AND FOR A MANDAMUS, COMMANDING HIM TO ALLOW AN APPEAL.
    A mandamus will not be awarded to compel the judge a quo to grant 'an appeal, from an order or interlocutory judgment, overruling exceptions to the right of a creditor to hie an opposition to proceedings in insolvency.
    An appeal does not lie to an order allowing an opposition to be filed, when the final action of the court may render the appeal unnecessary.
    This is an application for a mandamus to compel the judge-of the Parish Court, for the parish and city of New-Orleans, to allow an appeal from an order of court admitting an opposition to the proceedings in "insolvency to be filed, charging one of the insolvent debtors with fraud.
    
      D. Seghers, of counsel for the insolvents,
    resisted the filing of the opposition, and excepted to it on the ground that it was not sworn to by the opposing creditor, and did not contain that written deposition which is contemplated by the provisions of the insolvent law of 1817. The exceptions were overruled by the judge presiding and the opposition permitted to be filed.
    The counsel for the insolvents prayed an appeal, which was refused. An affidavit being filed in this court by D. Seghers, stating that the judgment might work an irreparable injury to the insolvents, a rule was .taken on the Hon. C. Maurian, parish judge, to show cause why a mandamus should not ¡sslle commanding him to allow the appeal in this case as prayed for.
    A mandamus will not be awarded to compel the judge a quo to grant an appeal, from an order or interlo-eutoryjudgmenl, overruling exceptions to the right of a creditor, to file an opposition to proceedings in insolvency.
    An appeal does not lie to an order allowing an opposition to be filed, when the final action of the court may render the appeal ' unnecessary.
    The judge showed for cause, first, that according to law an appeal lies only in two cases, to wit: 1. On final judgments. 2. On interlocutory judgments, when they work an irreparable injury to the party complaining.
    1. The judgment complained of is not a final judgment.
    2. It is an interlocutory judgment, or rather an order which does not and cannot work an irreparable injury to the insolvents. ,
    
      D. Seghers, tor the mandamus,
    
    argued in support of the rule.
   Martin, J.,

delivered the opinion of the court.

This is an application for a mandamus to the parish judge for the parish and city of New-Orleans, to show cause why it should not issue, commanding him to allow an appeal in this case. The judge in his answer, states that the judgment or order from which the appeal is prayed, is not such a one as the law authorises; that it is only at most an interlocutory judgment, which does not and cannot work an irreparable injury to the party complaining.

In examining the facts of the case, it appears that one of the creditors filed an opposition to the homologation of the proceedings in the case of insolvency, and preferred an allegation of fraud against one of the insolvent debtors. Exceptions were pleaded to the opposition and the right to file it denied, on the ground that it was not sworn to, according to the act of 1817, prescribing the mode of making oppositions. The exceptions were overruled and the right to file the opposition sustained. From this decision the party has sought an appeal to this court.

This is a matter which involves the legality of an order or interlocutory judgment, which is only preliminary in the trial of the cause, and in which if is evident that the future action of the Parish Court may render an appeal unnecessary. But if it should not be the case, and injury ensue, (he insolvents will not be debarred the privilege of obtaining redress, by the final decision on the opposition, and to show that the exceptions were improperly overruled.

The rule is, therefore, discharged.  