
    
      HUMMIN vs. JONES.
    
    Appeal from the court of the first district.
    The district court cannot proceed, in a suit, in which the defendant has obtained a stay of proceedings from the parish court.
   Porter, J.

delivered the opinion of the court. This action is brought on a promissory note, and on examining the record, our attention has been first drawn to a bill of exceptions, taken to the opinion of the district judge, on an objection made by defendant to the court trying the cause, and on his prayer, that it might be continued, and transferred to the parish court of New Orleans.

The ground of this objection, appears to be that, two days before the cause was called for trial, the defendant had made application to the parish court for a respite, and had obtained from that tribunal, an order for calling a meeting of his creditors, to deliberate on the application, and directing that, until that deliberation. could be had, all proceedings against his person and property should be stayed.

East’n District.

Feb. 1824.

The question therefore, presented for decision, is whether the proceedings can be carried on against the person and property of the party, in whose favour this order has been made, so long as it remains unreversed and in force.

We are of opinion they cannot; the order given by the parish court, was a perfectly legal one, in conformity with the usual practice, and necessary to carry into effect the provisions of the civil code, in relation to this mode of relief. If it had any effect at all, it must operate on a cause such as this; and until set aside, the plaintiff had no right, in violation of it, to carry on proceedings against bis debtor. If improvidently granted, application should have been made to the tribunal which granted it. The plaintiff was put on the schedule, was a party to the proceedings, and the order operated as an injunction on him, and relief should have been Sought from the tribunal that granted it, or, if refused there, from this court through an appeal.

It is therefore ordered, adudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that the cause be remanded, with directions to the judge, not to proceed in the trial thereof, until the order, staying all proceedings against the person and property of the defendant, granted by the parish court of New Orleans, be reversed or rescinded, and it is further ordered that the appellee pay the costs of this appeal.

Lockett for the plaintiff, Morse for the defendant.  