
    John S. David et al. v. Municipality No. Two.
    A reservation in a judgment in a petitory action, by which the right of defendant, or others, to demand that the property recovered should be used as a market, etc., will not restrain the plaintiffs from executing their writ of possession. The effect of the reservation is to allow to the parties in interest a right of action to compel the plaintiffs to use the property in a particular way, should the plaintiffs’ title contain any such limitation.
    XJL PPEAL from the Second District Court of New Orleans, Lea, J.
    
      Fustis, Jr., and Pitot, for plaintiff. Livingston, City Attorney, for defendant and appellant.
   Buchanan, J.

This was a petitory action, and judgment having been rendered for plaintiffs, a writ of possession was the regular mode of execution.

The judgment recognizes the plaintiffs as owners of the property claimed in the petition, without prejudice of the rights of the defendants, or of any parties interested, if any they have, to demand (after their rights thereto shall have been judicially ascertained) that the said property shall be occupied as a market, in such manner and subject to such restrictions as may be thereafter determined.

The reservation contained in this decree by no means restrained the plaintiffs from executing their judgment. Its plain and obvious import was to allow the defendants, or any other party interested, a right of action to compel the plaintiffs to make use of the property in a particular mode, in case it should be determined that plaintiffs’ title contained a destination of the property to the particular use specified, which included a renunciation to the enjoyment of it in any other mode. The question of destination seems, indeed, to have been made by defendant in this very suit as a defence to the action. But the judgment rendered is a final one, and leaves nothing to be adjudged in this suit. If the defendants have any rights in the subject matter, their only remedy is by a separate action.

The judgment of the District Court upon the rule of defendants is, therefore, affirmed, with costs.  