author: NichollSj O. J.

text:
    No. 11,422.
    State ex rel. A. Lehman & Co. vs. Hon. Fred. D. King, Judge of the Civil District Court for the Parish of Orleans, et al.
    1. The contention is not well founded that a judge of the Civil District Court who grants prior to allotment an order of injunction, in so doing, exhausts his power over the order and is without authority, subsequently and prior to allotment, to modify or rescind the same. Until allotment he, for legal purposes retains control of his own order.
    2. Where such a second order has been granted and it is sought to have the same reviewed under writ of certiorari, the judge of the particular division of the court who has at the time of the application for the writ, control of the ease by allotment is the proper judge with whom to test contradictorily the order complained of.
    8. It is a general but not an inflexible rule that prior to the modification or rescission of an order of injunction, notice should be given to tlie party who obtained the writ. Where the rule is departed from, it is proport hat such notice should be subsequently given, to the end that parties may guard their interests and rights.

      i. The powers of the Supreme Court, under Arc. 90 of the Constitution, are not confined to writs of certiorari, prohibition, mandamus and quo warranto, but extend to other remedial writs.
    ■6. Parties complaining of an order “ suspending until after hearing” a prior order of injunction must, before invoking the supervisory powers of the Supreme Court, have unsuccessfully sought to have the “suspending” order rescinded. Where a restraining order is sought pending an examination of issues submitted for examination, the whole case should as far as practicable be placed before the court.
    6. Where the United States Marshal (under writs of fi fa from the Circuit Court of the United States, directed against a lessee), having seized the “right of occupancy” of certain, premises, has(withthe consent of the lessor and the receiver of the lessee appointed by the Civil District Court) granted to a third person the right of occupying the premises on paying rent, until a sale under the writs, a creditor of the lessee subsequently attaching the “right of occupancy” of the same premises, in the Civil District Court, can not oust such person from his occupancy by exparte injunction proceedings directed against him alone, nor is he entitled to a suspensive appeal from an order suspending until hearing, an ex parte prior order of injunction which would have accomplished that result
    yRPPLICATION for Certiorari, Mandamus and Prohibition.

      Dinkenspiel & Hart for the Relator.

      Lazarus, Moore & Luee for the Respondent.
   The opinion of the court was delivered by

NichollSj O. J.

Relators represent that on January 1, 1894, they applied to the Hon. N. H. Rightor, one of the judges of the Civil District Court for the parish of Orleans, in the ease entitled A. Lehman & Co. et als. vs. Walter P. Walsh, for an injunction against said Walter P. Walsh, their petition being verified by proper affidavits.

That the said judge granted the injunction as prayed for conditioned upon relators furnishing bond in the sum of $1000, which they did furnish with good and solvent security, and the injunction was thereupon issued by the clerk of the court, enjoining and restraining the said Walsh from carrying on business in the stores Nos. 145 Canal street and 7 and 9 Bourbon street in New Orleans, and from making any use of said premises except for the purpose of preparing for the removal of the goods therein belonging to said Walsh.

That on the same day a duly certified copy of said injunction under the seal of the court was served upon the said Walsh in person.

That the said petition and application for injunction was presented to the said judge prior to the allotment of said cause as authorized by the Constitution of the State and the rules of said court; that said cause was not allotted according to the rules of said court until the following day, Tuesday, January 2, 1894, when same was allotted to Division “B” of said court, presided over by Hon. Fred. D.'King.

That at about the hour of 11 o’clock A. M. on said Tuesday, January 2, 1894, and before the allotment of said cause, the following order was endorsed on said injunction served upon the said Walsh, to-wit:

“Upon representations of H. L. Lazarus and a full statement of the facts, the writ issued herein is suspended until the further order of the court and after hearing. New Orleans, January 2, 1894.

(Signed) . “ N. H. Rightor, Judge.”

That said copy of injunction with the said order endorsed thereon was thereupon filed in the clerk’s office of said Civil District Court. That said order of January 2, 1894, was rendered without notice to relators, without any hearing of any kind, and they did not know of same until after it had been filed in the clerk’s office as aforesaid.

That as soon after the allotment of said cause as possible relators appeared before the said Hon. Fred. D. King and asked for a suspensive appeal from said order, tendering a bond with good and solvent security in any amount to be fixed by the court, but on January 3, 1894, the said Hon. Fred. D. King refused said appeal as prayed for.. That said order of January 2, 1894, is absolutely null and void and without effect, for the following reasons:

1. That in advance of the allotment of said cause the said Hon. N. H. Rightor had no right or authority to act in said cause — the granting of the preliminary writ of injunction having exhausted his authority in the premises.

2. That said order was rendered without notice and without hearing of any kind.

3. That said order purported to be rendered because of the presentation to the court of certain facts — and an order regularly granted can not be set aside by the court upon matters of fact until final hearing of the cause.

That under the Oonstitution of the State and the rules of said Civil District Court the granting of a preliminary writ by any judge of said court prior to an allotment does not in anywise affect the control of the cause by the judge to whom same may be allotted after the allotment, and therefore the said Hon. Fred. D. King, presiding judge of Division “B” of the Civil District Court, is alone competent to deal with said cause and is the only one of said judges against whom the process of this court may be directed as to said cause.

That relators are entitled to writs of certiorari, prohioitio n and mandamus to the end- that said proceedings be enquired into, the execution of said order of January 2, 1894, restrained, and an appeal given the relator therefrom; the said writs to be operative in their order, so that if the writ of certiorari be granted and made peremptory the other writs will be unnecessary; or if the writ of certiorari be finally refused and a writ of prohibition granted the writ of mandamus will be unnecessary, and if both the writs of certiorari and prohibition be refused or set aside after final hearing that then the writ of mandamus be made peremptory.

In view of the premises, relators’ prayer was that a writ of certiorari issue directed to the Hon. Fred. D. King, judge, commanding him to transmit the original record in the suit of A. Lehman & Co. vs. No. 41,200, Walter P. Walsh; that the validity of said order of January 2, 1894, may be enquired into and that said writ also be directed to the said Walsh, prohibiting him from acting under said order of January 2, 1894, and that in due course of law the said writ be made perpetual and said order annulled and set aside. Under the restriction before stated they prayed for a writ of prohibition directed to the said judge, enjoining him from enforcing or acting under said order of January 2, 1894, and that in due course said prohibition be made perpetual.

Under the restriction before stated they prayed for the issuance of a writ of mandamus commanding the said judge to grant a suspensive appeal from said order of January 2, 1894.

They prayed that Walsh be served with a copy of the proceedings.

This court ordered that a writ of certiorari issue and that the respondents show cause why the writs of mandamus and prohibition should not be granted as prayed for, but refrained from issuing any restraining order in the premises, for the reason that the petition utterly failed to disclose, as it should have done, the character of the proceedings in the court below or the facts and circumstances of the case in which an intervention was asked. We were inclined, for this reason, to refuse relators’ application in its entirety.

In the answer filed by the judge of Division “B,” he states that he transmits not only the record in the case of A. Lehman & Co. vs. Walter P. Walsh, but other original records and copies incident to and connected with the litigation growing out of the seizures and attachments against the Runkel-Hoerner Company, Limited, in suits pending in the various divisions of the District Court for the parish of Orleans, and liquidation proceedings in which liquidators and ’receivers have been appointed and various orders granted therein; that he transmits and makes part of his answer the said records for the reason that they are part of and concern the same litigation of which the injunction sued out by A. Lehman & Co. et al. is but a part, and that said records show that all the attachment proceedings and cases, including those by relators, were transferred to and cumulated with the liquidation proceedings.

He avers that all the orders granted by him and the Hon. N. H. Rightor in the case aforesaid are legal and valid, and that relators are not entitled to a writ of certiorari.

That his own refusal to grant a suspensive appeal from the order suspending the injunction in the case of A. Lehman & Co. et al. vs. Walsh does not entitle relators to writs of mandamus and prohibition.

That the records transmitted show that an order of injunctionfwas granted in the said case of Lehman & Co. et al. vs. Walsh by the Hon. N. H. Rightor, judge of Division “D,” and that subsequently the said judge before the allotment of the case suspended the operation of said injunction by a written order to that effect on the same day that the injunction was granted.

That the injunction granted was not a matter of right, and was within the discretion of the judge to whom the application was presented to refuse or grant the same, and that before the allotment of the case the judge who originally granted the writ had the right to either revoke or modify the same, such order being entirely within his control and power of modification or revocation.

That said judge having the authority previous to the allotment of the case to modify or revoke such order, could modify, revoke or suspend the same, either upon a representation of facts made to him or without such representation, and could do so either with or without notice to the parties in interest and a contradictory trial upon the question whether the injunction should be suspended.

That the judge had the absolute power to revoke or modify this class of injunctions, and to hold that he could only do so after notice and hearing of the parties upon the question of fact presented for the issuance of the injunction, would be to deny his discretion and power to revoke or modify the order of injunction, and would deny him the power to set aside an injunction improvidently granted until after the delays which are always usual in rule, contradictorily granted, and the trial thereof, and would result in the party enjoined suffering all the injury resulting therefrom pending the trial and decision on any rules which might be taken.

That the said judge having the absolute power to revoke or modify the said order of injunction, the exercise of such power is not affected by the fact that he states in the order that he does so upon the statement of certain facts made to him, but the question is whether upon the face of the petition as presented, the case was of such a character as authorized the judge either to grant or refuse the injunction. That to hold that the judge who originally granted the injunction had no right or authority to set it aside, would be to hold that an injunction,- no matter how improvidently granted, would have to stand until allotment was made.

That in the order suspending the injunction the judge made such suspension (as shown in the order) until further orders of court and after further hearing.

That under the said order of suspension, relators had the right and were reserved the right to apply and move for reinstatement c f the original order of ‘injunction, and that he, the respondent judge, had been ready at any and all times to receive and consider such application, but that no such application had been filed by relators. That the Hon. N. H. Rightor having granted the original order of injunction and having suspended the same, and the case having been subsequently allotted to respondent and an application for a suspensive appeal having been made, respondent in his discretion refused such suspensive appeal, and relators are not entitled to a mandamus to compel the granting of the same, as the granting of the injunction and the modifying of the same was within the discretion of the Civil District Court, and to grant a suspensive appeal would be to control that discretion and to reinstate an injunction which the lower court had in its discretion decided should be revoked and suspended.

That the injunction sought by relators was in its nature mandatory, as while the injunction is directed against the defendant, Walsh, to restrain him from using and enjoying the possession of the premises, still, if reinstated, it would have the effect of ousting him from a possession which relators admit he now has.

That the injunction being thus mandatory in its nature should not be issued until after legal trial upon its merits. The respondent judge relies upon the case of State ex rel. Koehl vs. King, 45 An., recently decided by this court, as supporting these views.

An examination of the petition of relators, upon which they obtained the order of injunction, shows that they averred that they were creditors of the Runkel- Hoerner Company, Limited; that under writs of attachment they had seized certain property of that company, including especially the leases and rights of occupancy of the premises Nos. 145 Canal street and 7 and 9 Bourbon street, in the city of New Orleans, which leases and rights of occupancy were worth about $25,000. That unless they are able in due course of law to sell and realize upon said leases and rights of occupancy all their claims against said company will not be paid in full. That W. P. Walsh, a resident of New York, temporarily in New Orleans, had taken possession of said premises without right or authority and had announced his intention of carrying on business in the same, commencing on Tuesday, January 2, 1894. That they would be irreparably injured should he be allowed to continue the possession and use of said property, and that they have no relief save in the equitable writ of injunction. That when Walsh purchased the contents of said stores he was notified that he would have a reasonable time, not exceeding two weeks, within which to remove said goods from said premises, but that he had announced his intention of carrying on business and selling said goods regardless of said notice and regardless of their rights and those of other creditors of the said company.

Their petition closed with the prayer that an injunction issue enjoining and restraining Walsh, his agents, clerks and employés from carrying on business in the said premises and from making any use of the same except for the purpose of preparing for the removal therefrom of the goods therein belonging to him. That after due proceedings the said injunction be by judgment perpetuated, with reservation of their right to sue Walsh for whatever loss or damage they may have sustained by reason of his retention or occupancy of the premises.

The allegations of this last petition, like those of the petition in the present proceeding, are exceedingly indefinite. They do not set out all the facts of the case, and we are forced to gather these facts, as best we may, from the various records or fragments of records which the respondent judge has sent up.

The answer of the respondent, Walsh, verified by the oath of one of his attorneys, makes the following aliegations:

Respondent would for further answer state the facts in connection with this litigation — a litigation of which the injunction sued out by A. Lehman & Co. et al. was but a branch or incident.

Respondent shows that in the cases styled Sweetser, Pembroke & Co. vs. The Runkel-Hoerner Company, Limited, and the H. B. Claflin Co. vs. The Runkel-Hoerner Company, Limited, attachments were issued from the United States Circuit Court for the Fifth Circuit and Eastern District of Louisiana, and levied upon ihe stock of merchandise and fixtures contained in the premises now occupied by your respondent; that subsequently suits were instituted and provisional seizures issued in the cases styled Joseph R. Mitchel vs. Amos Runkel, and Mrs. Sarah E. Atkins vs. Amos Runkel in the said United States court, on demands for rent, in the former case of the Bourbon street premises and in the latter case of the Canal street store now occupied by your respondent; that judgments were obtained in the United States court recognizing the lessor’s privilege and pledge upon the stock of merchandise and all movable effects in said leased premises; that the same were sold at marshal’s sale under said judgments and writs of fieri facias issued thereon on the 26th day of December, 1893; that previous to the sale A. Lehman & Co. filed interventions in the cases of Sweetser, Pembroke & Co. and the H. B. Claflin Co. vs. the Runkel-Hoerner Company setting up that the attachments issued therein should be disr solved on account of liquidators having been appointed in the State court and all the property and effects of the Runkel-Hoerner Company having been ordered to be placed in the possession of said liquidators and receivers, collusion, etc. ; that the said interventions and attachment cases of Sweetser, Pembroke & Co. and the H. B. Claflin Co. were regularly- put at issue and tried, and judgments were rendered maintaining" said attachments and dismissing the interventions — the seizures under the attachments having been made prior to the appointment and qualification of liquidators and receivers; that at the said sale by the United States marshal respondent purchased the stock of merchandise and fixtures for a sum exceeding $50,000 and paid 'cash therefor; that at and during the sale of said stock and after the marshal had announced the terms .thereof, G. Lehman, of the firm of A. Lehman & Oo., asked the marshal whether the purchaser would be allowed to occupy the premises after the sale, and that the marshal responded that the purchaser would be allowed to have possession of the premises for two week's or possibly longer, and that if he continued any longer he would have to obtain the consent of the landlord or parties interested ; that in the said suits of Sweetser, Pembroke & Oo. and the H. B. Olaflin Oo., and under the attachments issued therein, the right of occupancy now in controversy was seized by the United States marshal; that in the said suits in the United States court the liquidators appeared and filed exceptions setting up that on account of the Runkel-Hoerner Company having gone into liquidation the attachments should be dissolved, which exceptions were overruled by the court and final judgment rendered in said cases in favor of Sweetser, Pembroke & Oo. and the H. B. Olaflin Oo., and against the defendants and the intervenors, A. Lehman-& Oo. et al., the appointment and qualification of the liquidators being subsequent to the attachment and seizures thereunder in the United States court; that subsequent to the purchase by respondent of the said stock of merchandise and fixtures A. Lehman & Oo. et al. appeared in the United States court and took a rule upon the United States marshal and respondent to show cause why they should not vacate the premises now occupied by respondent; that subsequently under the attachment proceedings in the Civil District Oourt for the parish of Orleans, Division A, wherein the said A. Lehman & Oo. et al. have secured attachments, the. said parties took a rule upon the defendant, the Runkel-Hoerner Company, to show cause why the right of occupancy should not be sold in their case as perishable, and that said rule was discharged, the judge of Division A transferring all the attachments in his said division to Division E, in which division the liquidators and receivers had been appointed and qualified for the Runkel-Hoerner Company.

Respondent avers that he is occupying the said premises under permission from the United States marshal and under agreement with the liquidators and receivers of the Runkel-Hoerner Co. to pay the same rent that was agreed to be paid prior to the institution of said attachment proceedings against said company, and also with the consent of the landlord and original tenant, Amos Runkel, and with the understanding that when the right of occupancy of the leased premises was sold respondent would vacate the premises. That relators were absolutely without right to enjoin respondent from occupying or enjoying the premises, and they could suffer no irreparable injury by reason of the refusal to grant the injunction, or suspend the same after its granting, leaving out the question as to the granting or suspension of the same being within the discretion of .the judge of the lower court.

In their petitions of intervention and third opposition filed in the United States Circuit Court on the 21st December, 1893, in the Sweetser, Pembroke & Co. and the H. B. Claflin Co. cases, relators averred that on the 13th November, 1893, writs of attachment issued in these eases under which the United States marshal took actual possession of the movable property of the Runkel-Hoerner Company contained in No. 145 Canal and Nos. 7 and 9 Bourbon streets, and that the same was at the time of the filing of said opposition and had beeu since the 13th November in his possession; that on the next day and at subsequent dates they had obtained writs of attachment, some in the Civil District Court, others in the First City Court, under which writs the said property was seized by the civil sheriff and the constable by notices of- seizure served upon the defendant and the United States marshal, the last named notices being accompanied by service of a petition with interrogatories and citations, it being impossible for the sheriff and constable to make a physical seizure of said property owing to the fact that the same was under the control of the marshal.

The injunction proceeding below having been assigned to and being lodged in Division “B” of the Civil District Court when relators’ petition was filed here, the judge of that division is the proper one with whom contradictorily to test by certiorari the order of Judge Rightor complained of. The fact that that judge has not made the answer or return in this case has left us without knowledge of the reasons which induced him to suspend the original order he had granted.

We think it quite likely that when he did so he was under the impression it had not yet been executed. It may be that the judge having had his attention directed to the fact that the first order had been granted on the 1st of January was doubtful as to the legality of that order, and of any action to be predicated on it, or that under the facts of the particular case, the injunction being an incident of prior existing litigation in other divisions, he may have conceived that the parties should have addressed themselves to some other judge. Whatever his reasons we do not think that from-the standpoint of “power” the second order can be successfully attacked.

Relators selected the particular judge for the granting of the injunction — they maintain here that his original action was valid and legal. If so the judge did not exhaust his powers in the premises, but retained control of the proceeding up to the allotment of the case.

In State ex rel. Buisson vs. Lazarus, Judge, 33 An. 419, as in Mengelle vs. Abadie, 45 An. 678, this court said that “the power to issue the writ when vested in a judge implies that of dissolving it,” and in the former case we maintained -the right of the judge who had granted an injunction in the absence of the particular judge, to whom it had been allotted, to rescind the order.

It certainly was never contemplated,, and we could not hold that an ex parte order of a judge which might have been improvidently granted, which might in fact be an absolute nullity, working the greatest injury, should be forcedly given full effect to until it could be set aside by regular proceedings with the usual notices and delays by the judge to whom the case would be ultimately allotted. Black on Judgments, Yol. 1, Oh. 14, Secs. 297, 308. .

The power to rescind or modify is something other and different from the rightful exercise of the power either as to the manner in which the rescission or modification was made or as to its correctness.

In State ex rel.' Moore vs. Judge, 37 An. 119, we said that “it was well established as a rule that notice to dissolve an injunction should be given to the party who obtained the writ,” but we immediately added “although in extreme cases the judge, in his discretion, may dissolve at chambers and ex parte.”

In Baldwin vs. Bellocq, 35 An. 983, we said: “There is no doubt that a judge has the right and power on an ex parte application in a case of urgency to dissolve an injunction on bond, but in such instances the dissolution being at the risk of the mover will be rescinded on a proper showing of error either in the lower or appellate court, and the matter reinstated to be proceeded with contradictorily. It is decidedly preferable that such course be pursued where circumstances will allow.”

These authorities show that a legal “power” exists in a district judge to dissolve even, “exparte” orders of injunction which he has granted, though the power, it is stated, must be very carefully and cautiously exercised.

The duty of the court to give “notice” at once to parties in interest of the action so taken is referred to in State ex rel. Moore vs. Judge, 37 An. 118, and is manifest. The action itself is of course subject to review and supervision in proper cases, through remedies varying under different circumstances.

It is claimed that ex parte orders for the rescission of even ex parte injunctions are unauthorized; that great and irreparable injury would necessarily follow from such a practice. Cases can be easily imagined, however, where an inflexible rule that such orders should continue in force until contradictorily vacated or modified, might be productive of still greater wrong and injury.

We think the rights of all parties are fairly guarded and protected in this State under the discretionary powers of the district judges over such questions, supplemented, as they are, by the supervisory control over inferior tribunals which has been given to this court.

Our powers under Art. 90 of the Constitution are not limited in proper cases to writs of certiorari, prohibition, mandamus and quo warranto, but are expressly declared by that article to extend to other remedial writs.

In State ex rel. Murray vs. Judge, 36 An. 578, we said that this court could issue a restraining order which would have the effect of an injunction asked for but refused below, and issue a mandamus directly to the district judge to allow the injunction in limine whenever a proper state of facts is presented and all the requirements of the law have been complied with; that it wa? manifest that cases might be presented in which justice and reason required that some mode should exist of redressing at once the wrong or abuse of power of the district judge, even if there.be other means of relief, if the slowness of ordinary legal forms would produce such a delay that the administration of justice might suffer from it.

We do not propose to enter here into any extended examination or discussion of “judges’” orders, “court” orders, of orders rendered “ex parte” and those “ contradictorily” obtained. It suffices to say that the order first granted herein by Judge Rightor was not technically a judgment (State ex rel. Behan vs. Judges, 35 An. 1077, 1078), and even though it should not have been properly suspended the error was not covered or reached by a claim that there is an absolute want of power in a district judge to vacate or modify ex parte under any circumstances any order of injunction which he had previously rendered. It is not legally essentially necessary that such orders should in all cases be modified or vacated contradictorily with those in whose favor they have been issued. It is not true that the mere failure to give prior notice to such parties would carry with it, as the inevitable consequence of that fact, the absolute nullity of the modifying order as for wane of legal power in the judge over the whole subject matter. Black on Judgments, Oh. 1, Sec. 1, p. 5; Oh. 14, Secs. 297 and 808; Craddock vs. Croghan, 1 Sneed (Ky.) 100; Clagget vs. Simes, 25 N. H. 402.

We are next to enquire whether in the exercise of his “ power” of ex parte revocation or modification the judge has applied the power to a particular case in which he was not legally authorized to do so, so as to authorize a review of his action through the instrumentality of a writ of certiorari.

We understand relators to claim that there is a-CLASs op oases such as leave no discretion in the district judge to determine whether he would or would not grant an injunction asked when the facts are properly alleged .and sworn to, and that the present case falls under that class. That the same reasons which withdraw from him in that class of cases all discretion as to granting the injunction also withdraw absolutely from him the authority to modify or revoke ex parte the injunction which he has directed to issue. The fact that a particular case, when properly presented to a judge, may be of such a character as to make it his duty to issue an order of injunction does not exact that the injunction should necessarily be. continued until final hearing. Whilst the injury complained of may justify an injunction it may not be such as to work irreparable injury. The judge, therefore, even in such cases, has some power of action in the matter. It may be that he would npt have the authority for any reason dependent upon the merits of the case to definitively dissolve the injunction, but he would have the right to entertain and act upon an application to dissolve on bond, and it would not be essentially necessary, as we have said, though generally right and proper to have the same disposed of contradictorily. The falling of a particular case under the class referred to would not necessarily be determinative of the question of the legality of notice prior to action. Whether in such case the judge would have acted legally in proceeding ex parte would depend upon its particular facts and the grounds upon which the action was based.

In dealing with that question the fact must not be overlooked that the modification or revocation of the order may be grounded on causes extrinsic to the merits of the injunction.. The judge, for reasons entirely independent of the merits, may reach the conclusion that the order of injunction was improvidently and illegally issued by him, and we should, if possible, be advised of those reasons by parties who, appealing to our supervisory powers, seek at our hands a restraining order pending the examination of the issues submitted to us. They should, as far as practicable, place the whole case before us. We consider such a requirement conservative — tending to secure the rights of all parties and to further the proper administration of justice by enabling us speedily, through the reasons assigned below by the district judge, to come to a correct knowledge of the situation and to act advisedly.

In the present case relators did not exhaust their remedy in the court below nor seek the obvious relief which was directly before them and which they could doubtless have speedily obtained there if entitled to the same. (State ex rel. Shakspeare vs. Judge, 40 An. 607; State ex rel. Waterworks vs. Levy, 36 An. 944).

The order of injunction granted was not absolute. Defendant was enjoined “until further orders of the court.” The second order was not absolute — it suspended the injunction “until further orders of court after hearing.” Relators took nO| steps • whatever to have the suspending order revoked or to obtain the hearing reserved and obviously tendered, but applied at once for a suspensive appeal, following the refusal thereof by this application to us. The second order was not a denial of the injunction. It merely postponed matters for a short period to enable the replacing judge to advise parties whose right to be heard was surely as great as that of the relators’ to be heard, of the pending application so as to guard their interests.

We think that under the circumstances of this case, relators, before making an appeal to us, should have applied at least for the revocation of the order complained of. In some States such a prior application for the revocation of an order complained of is made a condition precedent to the granting of even an ordinary appeal. See Bostick vs. Knight, 40 N. W. Rep. 345; Black Hills Flume & Min. Co. vs. Grand Island & W. C. R. Co., 51 N. W. Rep. 341, 342, 343, 345.

We have ourselves established as a rule of practice that applications to us for relief against the actions of a court charged as being in excess of power and usurpations of jurisdiction would not be generally entertained unless exception had been made below to the want of power or jurisdiction and the same had been overruled.

We do not know upon what grounds Judge Rightor acted in this matter, and as he might have been authorized and justified for a number of reasons which we can readily imagine, in giving the second order, we can not set it aside in this proceeding.

Relators complain that even if the second order were not reviewable by this court under its supervisory powers, they were entitled to appeal suspensively from the same, and this appeal was unjustifiably refused.

It would appear that the Runkel-Hoerner Company were the lessees of the premises Nos. 7 and 9 Bourbon street and No. 145 Canal street, and had therein a stock of merchandise. That on the 13th November, 1893, under writs of attachment issuing from the United States Circuit Court at the instance of several creditors of that company, the stock of goods mentioned and the right of occupancy of the said premises were seized, and the premises and stock of goods were taken possession of by the marshal. That upon the next day (November 14) the company went into liquidation in Division “E” of the court, and receivers or liquidators were appointed by and confirmed in that division. That on the 14th November, 1893, and at various dates since, under writs of attachment issuing from the Civil District Court for the parish of Orleans, the same property, with the right of occupancy, was seized by the civil sheriff of the parish through notices of seizure served upon the marshal, the notices being accompanied by service of petitions with interrogatories attached; actual possession of the property not having been taken by reason of the prior holding of the same by the marshal.

That subsequently, under proceedings taken out in the United States Circuit Court by the lessors of the premises occupied, the stock of goods was sold at public auction and was purchased and taken possession of in the premises by one W. P. Walsh. That Walsh still occupies the stores with the goods purchased by him, and is duly selling the same therein. That the seizures made by the marshal are still in full force. That the occupancy of Walsh is under the consent and with the permission of the marshal, the receivers and the landlord, and that Walsh recognizes that it will terminate upon the sale of the right of occupancy, and admits that it will be his duty to vacate the premises upon the happening of that event. Furthermore, that all the various suits and attachments connected with the company have been transferred to and are now before Division “E” of the Civil District Court, where the proceedings in liquidation of the Runkel-Hoerner Co. are still pending.

Relators have not explained to us in their brief how their interests would be prejudiced by the temporary occupancy of the premises by Walsh under the circumstances, nor how they would be advanced by having the injunction maintained. The premises are still in the possession of the marshal, under seizure, and if he chooses (particularly if the landlord and receiver consent) to permit Walsh to act as a quasi keeper or tenant, we do not see either the interest or the right of the relators to have him ousted by ex parte proceedings directed against him. Railroad Company vs. Railroad Company, 36 An. 561.

For the reasons herein assigned it is ordered, adjudged and decreed that the provisional orders and writs be set aside and relators’ applications be rejected at their costs.


source: Caselaw Access Project

author: MoEnery, J.

license: Public Domain

text:
    No. 11,345.
    Mrs. Henrietta Helm, Individually and as Tutrix, vs. Edward and James O’Rourke.
    Where a widow sues for the death of her husband, caused by negligence of defendants, there is no misjoinder of parties plaintiff, if she sues individually and as tutrix of her minor child, issue of her marriage with deceased.
    Where the parties are liable in solido, and each is cited, they are all before the court, and the fact that the petition alleges that the injury was inflicted by a commercial firm, composed of the individuals who are liable, is not sufficient for the dismissal of the suit, although the firm had been dissolved at the time of the institution of the suit. The petition -discloses a cause of action when it set out the manner in which the deceased was killed and charges negligence on part of defendants, and the absence of contributory negligence on part of deceased.
    A servant, an “ all-around workman,” subject to the orders and directions of the master, whenever he is called upon to work in pursuance of conditions created by the master, has the right to assume superior knowledge, judgment and skill in the master, under whose orders he is immediately acting, and to believe that he will be protected from danger.
    APPEAL from the Civil District Court, Parish of Orleans. J.

      T. M. Gill for Plaintiff and Appellee:
    1. Knowledge, experience, care and skill are* required in testing a boiler. XT. S. Revised Statutes, Sections 4404, 4418, 4427, 4429, and 4429. Edward’s Steam Engineer’s Guide, pp. 126-127, quoted pp. 15-16 of this brief.
    2. It was the act of the O’Rourkes that caused, the damages, and they must repair it. R. O. 0. 2315.
    3. Mr. Webster’s definition of the word USB is: “The act of handling or employing in any manner or for any purpose.” The demolisher of a building is not using (to adopt defendant’s construction of the word) the building, but demolishing to convert its material into marketable lumber — to sell it for use — yet he is liable for any damages he may cause. 39 A. 1011.
    4. It was the duty of Frank Helm to go to Edward O’Rourke whenever he called him. The master orders and the servant obeys and executes. 112 U. S. 393.
    5. Servant has the right to assume superior knowledge, prudence, judgment and skill in his master, and that the master will not jeopard his life or person but guard him from all danger. The master’s duty is to know the danger, if any exists. He can’t require superior knowledge,'judgment or skill from his servant. Servants are only required to know of patent but not latent defects, and if he knows of defects it would not bar recovery, unless he knew they were necessarily dangerous. It is absolutely necessary, to bar recovery, that the master should be free from all negligence, even if the servant assumed the risk in his employment. 39 A 1011; 37 A. 635; 40 A. 182 to 1S3; 106 U. S. 700-702; 41 A. 964; 100 U. S. 216, et seq.; 112 U. S. 293; 12 F. R. 732; 48 F. R. 914, 919; 116 U. S. 642.
    6. The burden was upon defendants to prove for what F. Helm was employed, to prove if he was employed to test or witness the testing of boilers, and that he had the capacity to do so, etc., and that Edward O’Rourke had the skill to test boilers and was free from all fault. Having made no groof of the above requirements the presumptions are against them. 15 A. 664; 35 A. 841; 20 A. 96.
    7. The judgments small for the damages suffered. Twenty-five hundred dollars has been allowed for eighteen hours’suffering. 36 A. 708. Helm suffered 168 hours. This authority would authorize $23,333.33 1-3 damages.

      Jas. Timony and Moise <& Cohn for Defendants and Appellants:
    1. (a) Whatever is necessary to be alleged to show a cause of action must be expressly alleged.
    (&) Inference and implication can not be used in lieu of positive allegation.

      2. No fact can be shown unless it has been alleged. 1L. 214; 4 R. 465; 9 An. 117; 14 An. 355.
    3. (a) The allegations of a petition should exclude every hypothesis upon which the non-liability of defendant could be predicated.
    (b)Its allegations should be such that defendant admitting them, and the law justifying, judgment should go against hijn.
    4. (a) Whatever must be proved in order to recover must necessarily be alleged» 5 M. 691; 13 L. 52; 2 R. 498 ; 4 R. 428; i An. 556; 13 An. 124; 14 An. 120; 20 An. 354; 24 An. 159.
    (b) If facts alleged are not sufficient when proven to recover, the petition necessarily shows no cause of action,
    5. (a) The plaintiff is presumed to have stated every fact which he can prove.
    (b; Facts not stated it will be presumed did not exist
    6. A skilful mechanic, employe in a boiler manufacturing establishment, called on to witness the “ testing ” of an old boiler by bis employer, takes the risk of his employment in answering the call, and can not complain if injured by its explosion during the operation, when, the danger was not increased by any fault of tlie employer, and the method of testing was not unusual or uncommon.
    7. (a) The boiler was being tested and deceased was called onito witness the test,
    (b) No allegation in petition of fault or negligence in the operation of testing,
    (e) No allegation that it was not part of deceased’s duty or function of his employment.

      (d) No allegation that deceased was not familiar with opez*ation of “ testing.”
    (e) An allegation that he was skilful, necessarily must have known.
    (/) No allegation danger was increased.
    8. (a) The court will take judicial notice that in boiler works boilers are tested. Because 1st. The United States Government requires it for marine boilers.
    2d. The city government did require it.
    3d. It would be negligence not to test, 9 Fed. 877; 10 Fed. 140.
    9. (a) The court will not presume it uncommon or unusual, in order to aid a petion, when it does not so allege it to be.'
    (b) To have sold or used an old, rejected and condemned boiler without “ testing ” before or after repairing would have been criminal negligence.

      (c) It is the obligatory duty of a boiler maker to test.
    10. (a) No allegation of cause or reason for calling deceased.
    (b) Allegation that he was skilful.
    (c) Presumption called for a purpose.

      (d) That purpose founded on his skilfulness.
    11. (a) No allegation that employer had no right to call him.
    (b) If without right deceased could have x’efused to come.
    (c) Coming, therefore, he voluntarily assumed the risk.
    12. (a) No allegation that testing was before or after repairing.
    (b) No allegation that it was with cold or hot water — steam or compressed air.
    13. The object of “ testing” is to test.
    *4. (a) To test a thing is to try its strength, power and endurance, also its weakness.
    (b) To test a boiler is experimenting by pressure to see what pressure it will stand.
    (c) The fact of “ testing ” is putting a doubt into action; to verify its truth or demonstrate its falsity.

      (<2) To test a boiler is to propound to it interrogatories in the shape of deeds and to take results for answers.
    (e) To test a boiler is to probe it for unseen defects.
    15. An essential and necessary part of defendant’s business was to test, not only as part but as an obligatory duty.
    16. Deceased was called to witness the questions in the shape of deeds, put to the boiler, and necessarily to hear the answers, in the form of results.
    17. The boiler was not in use, nor being used.
    IS. The fact of “ testing” shows an intent to use, if fitted for use, which denies its use and concedes its unfitness for use.
    19. This is not an action for the use of defective machinery.
    20. The petition does not charge the boiler unfit for “testing.”
    21. Testing a boiler involves danger.
    22. Employes assume the risks incident to their employment, and unless the employer increases those risks he is not'liable for injuries resulting. 38 An. 156; 35 An. 1166; Borer on B. E. 1198; Pierce on R. E. 379; 109 U. S. 484.
    23. A man voluntarily assuming a position of danger can not recover for injuries. 17 Eed. 882; 24 Bed. 809, 906, 124 — and authorities in brief.
    24. An employ! knows the risk of the business as well as an employer. See Lord Abinger’s ruling cited approvingly by our court (in brief).
   The opinion of the court was delivered by

MoEnery, J.

The petitioner alleges that the defendants, composing the commercial firm of Edward & James O’Rourke, are indebted to her individually and as tutrix of her minor child in the sum of twenty thousand dollars, “ for this, that on or about the 16th day of May, 1891, while petitioner’s husband, Frank M. Helm, was working at the furnace where he was employed in the boiler works of the aforesaid firm of Edward & James O’Rourke, in this city, he was called from said work by Edward O’Rourke, a member of said firm of Edward & James O’Rourke, to witness the testing of a boiler, which, upon his arrival exploded and he was thrown many feet distant and struck by many fragments of said boiler, and so injured, notwithstanding the best of medical skill and care, as to cause his death, after suffering seven days great pain and agony, on or about the 23d of May, 1891. *****

“That petitioner’s husband was guilty of no fault, but that all the injuries, suffering, agonies, death and damages aforesaid were caused solely by the carelessness, imprudence, gross negligence, fault and want of skill of the aforesaid firm of Edward & James O.’Rourke, and Edward and James O’Rourke individually. That said boiler was old, rejected and condemned before the purchase of the same by the said defendant firm of Edward & James O’Rourke, and was not only unsafe, but utterly unfit for use, as they well knew, and which petitioner’s husband did not know.”

The prayer is for judgment for said sum of $20,000 against the commercial firm of Edward & James O’Rourke and James O’Rourke, individually, in solido, and for the same amount jointly against the heirs of Edward O’Rourke, deceased.

The defendants were all cited and were before the court.

■ To this petition exceptions were filed — first, that at the time of the service of the petition and citation the firm had been dissolved, and that the defendant James O’Rourke had no authority to answer for said firm, and that he could not be cited with another party, but that citation and petition should be served on him separately. The defendants, if liable, were bound in solido. They were all cited. All parties in interest were therefore before the court.

Second, that the petition is vague and shows no cause of action, and that it is a misjoinder of parties plaintiff. The petition is explicit in showing the manner in which the deceased, Frank Helm, met his death, and it explicitly charges and avers that it was caused by the negligence of defendants. The only facts at issue were the negligence of defendants, and the absence of contributory negligence on the part of deceased. The first is averred and the second negatived by averments. There was no misjoinder of parties plaintiff, as both the widow and child have an interest in the damages if any were due for the death of the husband and father.

The exceptions, therefore, were properly overruled.

The defendants answered, pleading a general denial and specially averring that the testing of the boiler was done by defendant’s brother and partner, who was seriously injured at the time the explosion occurred ; that Frank M. Helm was a skilled mechanic; that he had inspected the boiler, and from his report Edward O’Rourke believed the boiler could stand the test; that the explosion was caused by no fault of defendants, and that the accident was one of that character which is the risk of the business in which said Helm was engaged; that the boiler had been repaired according to the instructions of said deceased Helm, and many repairs were put on the same which he had not recommended, and that it was thoroughly repaired when tested, and that the explosion was one of those accidents which will happen in despite of every care and caution. Contributory negligence on the part of Helm, the deceased, is also averred.

There were four trials by jury. The first trial was in favor of plaintiff, the jury returning a verdict of $8000. This was set aside. The case was again tried on the same evidence by agreement of counsel, and a verdict in favor of plaintiff for $20,000 was returned. A new trial was granted. On the third trial the jury failed to agree, and on the fourth and last trial, on the same evidence, a verdict waS returned for $8000 and a judgment in favor of plaintiff rendered thereon. From this judgment defendants appealed.

The firm of James & Edward O’Rourke were engaged in making new boilers, buying second-hand boilers and repairing them if necessary, for sale, and repairing boilers for other parties. The firm bought two boilers from a blacksmith in Algiers. These boilers had been used for many years on the McLellan Dry Dock, and had undergone many repairs. They had become useless, worn out and rotten to the extent that they could no longer be repaired, and were discarded and condemned by the owners. They were unsalable, even for old iron, and to get rid of them arrangements had been made to throw them in the river. Finally they were given to the blacksmith Daniels, to be used as water tanks. From Daniels, Edward & James O’Rourke purchased them for a trifling sum. These boilers were moved to the works of the defendants and remained there some time before repairs were made upon them. During this time, until a short time before the test which ended so tragically, Frank M. Helm, the deceased, was not employed at the boiler works, and it is not shown that he was acquainted with the history of the boilers. Frank M. Helm was employed at the furnace. He was a skilled mechanic, and handy at any work about the establishment. He was, as stated in the testimony, an “all-around man.” It was not his special business to test boilers. Edward and James O’Rourke were their own foremen, and the employees of the establishment acted under their instructions and obeyed their orders, doing what work was imposed upon them by their employers.

It appears by the testimony of James O’Rourke that it was not the business of any particular employee to test the boilers, and that a workman who happened to be out of a job was selected for this purpose. The deceased, Helm, was not out of a job, as he was employed at the furnace. It does not appear by the testimony,' except that of James O’Rourke, that Helm, the deceased, worked on this boiler, which was purchased from the blacksmith, Daniels.

Those who worked on the boiler named George Helm, brother of deceased, as the mechanic who did the work on it, putting in the new crown sheet and some of the braces, which were made by Frank M. Helm at the furnace or forge. There is some confusion in the testimony as to whether there was one or two cold water tests of the boiler. But there was certainly one, made after the new crown sheet was put in, under a pressure, stated by one witness, at sixty-five pounds, and another at thirty. Under this test the boiler gave way, and Edward O’Rourke ordered George Helm to caulk, that is to rivet the defective point in the boiler. The defect was in the old iron. After the explosion the boiler gave evidence that it was the old iron around the new crown sheet which gave way.

Experts who, from the responsible positions they occupy, are familiar with the testing of boilers say that after defects have been shown by the cold water test it would be unsafe, in fact rash, to resort to the steam test which the boiler was undergoing the day after the cold water test without repairing the defective portions of the boiler. And these experts also state that no more steam pressure should be employed in testing than that used in the cold water test. P. H. Kelly, a boiler maker and superintendent of the Whitney Iron Works, says that no practical man will test a boiler by steam pressure before he has convinced himself by hydrostatic test that the boiler will hold a certain amount of hydrostatic pressure.

It does not appear that after the cold water test and the defects were exhibited, and the boiler caulked or riveted, that any other hydrostatic test was made, but that a steam test was employed the next day at a pressure of at least eighty-five pounds.

We conclude that the defendants were negligent in attempting to test an old boiler beyond the ability of any one to repair or make safe, and that they were negligent in putting on the steam test at a pressure in excess of the hydrostatic test, even if the boiler had shown no defects by said test. And that they were grossly negligent after the defect by hydrostatic test had been exhibited, by resorting to the steam test without satisfying themselves again, after the repairs, by hydrostatic pressure, that it was safe to resort to the steam test. Phillips vs. Ill. C. R. R. 49 Ill. 234.

Frank M. Helm, the deceased, was employed at the forge or furnace, and was going to his work at the forge, and was some thirty feet away from the boiler when Edward O’Rourke called to him and said he wanted him. He responded to this call and went to Edward O’Rourke, who was superintending the testing of the boiler by steam. At this time there were eighty-five pounds pressure on the boiler and Edward O’Rourke instructed Olaude Helm to put on one hundred pounds pressure. He started to put on more steam, and it was at this time that his brother, Frank M. Helm, was called by Edward’ O’Rourke. Olaude Helm was instructed to call James O’Rourke, the other member of the firm. Frank M. Helm and Edward O’Rourke were left standing at the boiler, when he left to call James O’Rourke. He was in the office not very far away, and started immediately wich Olaude Helm to where the boiler was being tested, when within thirty feet of the boiler it exploded.

It is in evidence that the employees of defendants’ establishment obeyed what orders were issued, and that Frank M. Helm being handy and expert in all things connected with boiler making was called upon to do almost any kind of a job.

But it was not his business to test boilers. He was not employed specially for this purpose. This duty was assumed by Edwardl O’Rourke. Frank M. Helm took no part in directing the operations, but was present by invitation of his master and superior, and was-under his orders. He was not, therefore, employed in an occupation, the risks of which he assumed. The authorities cited by defendants-have no bearing on this point, as the facts do not bring the case-within them. Frank M. Helm being in the service of defendants as a. general all-around workman, subject to the orders and directions of' his superiors, whenever he was called upon to work in the presence-of conditions created by his master and superior, had the right to-assume superior knowledge, skill and judgment in his superior, under-whose orders he was immediately acting, and that he would not expose him to needless danger.

In the case of Tutrix vs. Sellers & Co., 39 An. 1011, Mr; Justice Fenner, in an elaborate and able opinion, thus states the law:

“When the master has created the danger he is bound to guard against it, and if he himself does not know or believe that the danger exists he can not require superior knowledge and judgment from the servant.”

To review the instant case at length would be only to repeat the views expressed in the opinion of Tutrix vs. Sellers, and a collation, and reference to the authorities cited.

It is only necessary to state that the defendants created the danger which the deceased, Helm, was instructed and ordered to confront. They are therefore liable in damages for their negligence in putting in operation cause which led to the death of Frank M. Helm'.

There are circumstances attending this case that impress us with the belief that the amount of damages assessed by the jury is excessive. The verdict of the jury was probably induced by testimony permitted to go to the jury showing the amount of property owned by defendants.

We will amend the judgment and fix the amount of damages at three thousand dollars.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to fix the amount of damages at three thousand dollars; in all other respects the judgment is affirmed, ..appellees to pay costs of appeal.


author: Parlance, J. Breaux, J. Watkins, J.

text:
    No. 11,839.
    George F. Herber vs. Philip Thompson on Interventions and Third Oppositions of J. & M. Schwabacher, the Ulman Gouldsbough Co., Limited, and H. L. Bidstrup.
    Third opponents, before the sale, inconsistently asked for the nullity of the sale on the ground of simulation, etc., and also asked for the proceeds; after the sale to one who declares himself the owner of the mortgage notes under which the sale was made and who, having bid less than his debt, paid no price, third •opponents filed amended petitions in which they allege that the adjudicatee ■was aware of the simulation, and they restrict their prayer to the annulment •of the sale and mortgage, asking for the citation of all parties to the sale. Held, .that under the circumstances of this case and the pleadings therein, third opponents are not estopped from attacking, by a direct action, the sale and mort.gage as being simulated. Held further, that in this case the action set forth in the amended petitions contains all the elements of a direct action, affords all •the opportunities for exceptions and answer, and affords also the same delays and mode of trial which could be claimed in a direct action.
    PPDAL from the Civil District Court* Parish of Orleans. King, J.

      W. 8. Benedict, Robt. G. Dugué and James Legendré for Opponents and Appellants:
    Interventions and third oppositions have always been allowed in executory proceedings. 28 An. 6¿6; 43 An. 820; 42 An. 492, 1195; 13 R. 217; 40 An. 149; 15 La. 417; 28 An. 596.

      The word “suit” in C. P. 389, 390, 395, and the word “privilege” in Art. 396, are not used in their technical sense. The first means “ judicial proceeding,” the other “ preference.” C. P. 401, 402, 403; 14 An. 589.
    The legal title to negotiable paper is presumed to be in the holder, who may sue in his own name, subject to theright of the drawer, or other persons interested, to urge against him all defences and equities they might urge against the real holder. But the presumption may be rebutted, and is rebutted when the holder confesses, in open court, that he has no interest in the paper, and never had any.
    No one can invoke the aid of judicial process unless he has some interest to pro- , tect. The interest must endure until after judgment. Hen., p. 1129, Nos. 11,12, 13; p. 1130, No. 27; 14 An. 811.
    When demands are made in the alternative, the pleading is good, and the party can not be made to elect. 27 An. 98; 30 An. 1203; 34 An. 198, 684.
    If inconsistent, the only penalty is that the pleader must elect. C. P.449 ; 28 An. 312; 7 N. S. 404; 7 An. 568; 3 An. 365; 19La. 207;8 An. 48.
    Third opponents may allege the nullity of a mortgage and at the same time claim the proceeds of a valid sale thereunder, if such should be made.
    A sale under an invalid or extinguished mortgage is good, as to the innocent purchaser for value. 41 An. 555.
    A party can not profit by the mistakes of his adversaries due to his own act.
    If the purchaser at a judicial sale does not pay the price, as ordered by the court, the sheriff’s duty is to re-sell at once; 18 An. 237.
    The sheriff can not be ordered to make a deed to an adjudicatee, claiming to hold the first encumbrance on the property, who, for that reason, refuses to pay the price, when there is a valid, subsisting order directing him to pay it, and the validity of his mortgage has been put at issue in proceedings which are still pending; 22 An. 573.
    Chas. J, Théard for Plaintiff and Appellee:
    An intervenor can not question the Interest or title of the plaintiff, or his capacity or right to institute the proceedings in which the intervention is filed.
    The payment of a promissory note endorsed in blank maybe enforced in the name of any person whomsoever, who is in possession of the note. Klein vs. Buckner, 30 An. 680; see also Hunt vs. Stone et al., 19 An., 526; Scionneaux vs. Waguespack, 32 An. 283; Smith vs. Atlas Cordage Co., 41 An. 1.
    An intervention can not be filed in an executory process.
    Interventions take place in suits, but an order of seizure is not a suit. Chambliss vs. Atchison, 2 An., page 490.
    An executory proceeding is not properly a suit; it is not even a judgment in any sense of the word. It is merely the aid of judicial power to give force and effect to what is equivalent to a judgment confessed. Kolger et al. vs. Roos, 40 An., page 604; Mitchell vs. Logan, 34 An., page 1003, and authorities therein cited; Rousseau vs. Bourgeois, 28 An. 186.
    A third opposition may take place in two cases only: (1) when the opponent claims to be the owner of the thing seized; (2) when he contends that he has a privilege on the proceeds of the thing seized and sold. C. P., Art. 396.
    Where the action is to annul a mortgage the party can not proceed by third opposition.

      One can not be permitted to claim the proceeds of the sale, and at the same time to aver the illegality of the sale and the nullity of the mortgage for the satisfaction of which the sale is made. Livaudais vs. Livaudais, 3 An. 454; Brovosty vs. Carmouehe, 22 An. 135; Slocomb vs. Williams, 23 An.245; Boubede vs. Aymes. 29 An. 274.
    The demand for the proceeds is the judicial admission of the legality of the sale, It not only affirms the validity of the sale, but will forever estop the opponent from afterward asserting the nullity of the sale in any subsequent proceeding. Factors and Traders’ Ins. Go. vs. DeBlanc et al., 31 An. 100; Massie vs. Brady et al., 41 An. 555.
    The purchaser, who is himself the seizing creditor, under a special mortgage first in rank, may retain in his hands the purchase price, up to the amount of his mortgage.
   The opinion of the court was delivered by

Parlance, J.

The plaintiff, holding five promissory notes signed by the defendant, aggregating $25,000, and secured by mortgage on a plantation situated in the parish of St; Landry, obtained an order of seizure and sale from the Civil District Court for the parish of Orleans. Before the sale three creditors of the defendant, holding judgments against him for sums aggregating $16,985.63 and interest, filed their separate petitions of intervention and third opposition in the executory proceedings. They alleged substantially that the plaintiff had no interest in the mortgage notes or in the mortgage, which they charged to be a pure simulation to the knowledge of plaintiff for the purpose of screening defendant’s property and its proceeds from the pursuit of his creditors; they further averred that the mortgage, if not simulated, is fraudulent and was resorted to by the defendant while he was in insolvent circumstances to screen his property as stated, to the knowledge of the plaintiff and of the original mortgagee, neither of whom gave any consideration for said notes, and that the opponents had only discovered the facts alleged within two months from the time when they filed their interventions and third oppositions.

The opponents further averred that, if the mortgage was not simulated or fraudulent, or both, and if the notes were ever issued or issued in good faith, which they deny, the notes afterward went back into the possession of the defendant, and that the mortgage has been extinguished by payment, compromise or otherwise. That the property is worth $25,000 and that the defendant is still insolvent, and that any other property he may own is subject to mortgages far in excess of its value, and that opponents will be remediless if the mortgage on which the executory process issued is not decreed null or to have been extinguished. Each of the opponents prayed that the sheriff of the parish of St. Landry be ordered to hold in his hands, out of the proceeds of the sale, a sufficient sum to pay their judgments, and that “judgment may be rendered decreeing the mortgage * * * to be simulated, null and void, and if not simulated or fraudulent, or both, to have been extinguished by payment, compensation, confusion or otherwise; * * * directing the amount of petitioner’s said judgment to be paid in full by privilege and with mortgage * * * out of the proceeds of the sale to be made herein.”

To these interventions and third oppositions the plaintiff excepted that no intervention or third opposition could be filed in said matter; that the intervenors can not be heard to question plaintiff’s interest or right to institute the suit; that the oppositions set forth inconsistent matters, and are vague and indefinite.

After the sale, the exceptions came on to be tried before the lower • judge, and he then allowed the opponents to file supplemental and amended petitions of intervention and third opposition, in which they averred that since filing their original pleadings, they have discovered that the plaintiff disclaims all interest in the notes and mortgage, and that he asserts that he never had anyinterest therein, and that the only person having any right in the same at the time the executory process issued and- since, is the adjudicatee at the sale, who admits the assertion. That a pretended adjudication has been made and the adjudicatee claims ownership thereunder, although he did not pay the price of the adjudication; but that the adjudication is null because he did not pay the price, and, for the reasons stated in the amended petition, the mortgage under which the sale purports to have been made is null and void, or has been extinguished, as the adjudicatee always knew. The opponents further averred that if the mortgage was not originally simulated or fraudulent, the same was paid or extinguished in some way unknown to them, but well known to the adjudicatee, who was thoroughly cognizant of the defendant’s insolvency; that the adjudicatee knew at the time he claims to have received the notes and mortgage that the same, if originally good, had been extinguished and could not be revived, and that if the adjudicatee was a creditor of defendant as he claims, he well knew that the defendant could not give him a mortgage, as he was then, and had been for a long time before, totally insolvent, to the direct knowledge of the adjudicatee. They alleged thatthese new facts had come to their knowledge since the filing of their original pleadings. They prayed for citation to all the parties, including the adjudicatee, and that the mortgage be declared to be simulated or fraudulent, or both, or extinguished as alleged, and that the sale and adjudication be annulled.

The judge a quo, after trial of the exceptions, maintained the same and dismissed the interventions and oppositions, reserving to the opponents “ all their rights, if any they have, to be prosecuted according to law.” The opponents have appealed.

The property was adjudicated for the sum of $8500. The adjudicatee, notwithstanding the order of the court directing the sheriff to retain sufficient of the proceeds to meet the claim of the opponents, did not pay the price, claiming the right, as holder of the notes, to attribute the price to his mortgage.

If the opponents had taken the risk of the purchase of the plantation by an innocent third person and had awaited the sale without instituting any proceeding, and if, after the sale to one whom they claim to be cognizant of the simulation, they had brought directly such an action as is set forth in the amended petitions, charging the mortgage and the sale to be simulations to the knowledge of all the parties to the proceedings and sale, and asking for the annulment of the mortgage and sale, it is perfectly clear that the opponents would have had their action. This being so, we are to inquire why the amended petitions should not stand. We see but two grounds upon which the dismissal of the amended petitions could be contended for: first, because opponents are estopped from attacking the validity of the sale, for the reason that in their original petitions they ask to be paid out of the proceeds of the sale; and secondly, because opponents, even if not estopped, can not assert their demand in the form which they have adopted.

The plaintiff has cited decisions of this court to show that a party claiming the proceeds of a judicial sale thereby affirms the validity of the sale and is estopped from thereafter contesting it. We have examined those authorities and others, and we do not consider them as in conflict with the views entertained by us in deciding the instant case.

That an innocent purchaser at a judicial sale should be protected against disturbance by one who has claimed the proceeds of the sale, seems just and equitable. It may well be in such a case that the intending purchaser considered the claim for the proceeds, even when inconsistently joined with a demand for the nullity of the sale, as a virtual assent to the sale and relied upon that assent when he bought.

But estoppels are'not favored; and no principle of natural justice or of law has been invoked by which the fact that a third opponent, has, prior to the sale, inconsistently claimed the proceeds and also, asked for the annulment of the sale, should operate an estoppel for-the protection of a purchaser of the property who was cognizant, that the sale and the proceedings under which it was had, were, simulations.

In a case such as the instant one, where, under a mortgage alleged to be a simulation, a sale is made to one who discloses himself at the-sale as the holder of the notes and who bids in the property for apart of his mortgage and does not pay the price, it seems clear that, an action charging the adjndieatee with knowledge of the simulation, can be maintained against him to have the sale declared null, even, though the parties bringing the action may, prior to the sale, have inconsistently claimed at the same time the proceeds of the sale and asked for the annulment of the sale. The claim for the proceeds-could not in any manner injure an adjudicates who would know that the sale is simulated and he could not be permitted to derive any benefit from the fact that such a claim had been made.

On the question whether the opponents can maintain their action in the form in which it is now embodied in their amended petitions, we were at first inclined to the opinion that the amended petitions should be dismissed, reserving to the opponents the right to bring again, as a separate and independent suit, the same action-set out in the amended petitions. But the law does not require the doing of vain and puerile things. The amended petitions contain all the elements and essentials of a separate and direct suit for the annulment of the mortgage and sale. Citation of all the parties concerned is prayed for. These parties will have all the delays and all the opportunities for exceptions and answer, and the same mode of trial to which they would be entitled' in a separate action. Besides, under the rules of the Civil District Court, if the suit were filed anew as a separate action it would again be docketed in this very cause, and assigned to the very judge who tried this cause below. We passed upon a similar point in Morris vs. Cain, 35 An. 759.

We are not to be understood as overruling herein the former decisions of this court holding, in cases of purchases by innocent buyers at judicial sales, that one who has previously claimed the proceeds of the sale is estopped from contesting the validity of the sale. Nor are we unmindful of the decisions of this court holding that one can not by third opposition claim the proceeds of a judicial sale on the ground that the execution is based upon a fraudulent, simulated or extinguished claim. We have no need in this case to pass upon those questions. The only requisites for a decision in this case are the conclusions reached by us that the opponents are not estopped from bringing an action for the annulment of the sale, which they claim has been made to a person cognizant of the fact that the sale is a simulation; and that the action set forth in the amended petitions contains all the elements of a distinct and direct action, and that under the circumstances of this case the amended petitions are to be considered and held as setting forth a direct action.

In the instant case we do not deal in any manner with the merits which were not reached in the court below, and we pass only on the questions presented by the pleadings and record.

It may well be that the allegations of the opponents are entirely unfounded in fact, and that they will fail in their proof. It is not impossible that the action is merely tentative. But with the verity or untruth of the cause of action we are not concerned at the present stage of the case.

It is therefore ordered that this cause be remanded to the lower court to be proceeded with according to law on the demands set forth in the amended and supplemental petitions herein, and that appellees pay the costs of appeal.

Dissenting Opinion.

Breaux, J.

The able and carefully prepared opinion of the court has not convinced me of the error of the judgment of the court a qua.

Before the sale of the property judicial mortgage creditors of the defendant, whose judgments were of record, filed separate petitions of intervention and third opposition, and obtained an order directing the sheriff to hold in his hands, ont of the proceeds of the sale, a sufficient sum to pay their judgments in full, and prayed, after allegations setting forth their claim, that the mortgage under which the property was sold be declared simulated, fraudulent and void, or to have been extinguished, and that their judgment be paid by privilege and preference out of the proceeds of the sale.

I do not controvert the facts stated in the opinion.

It does seem impossible, legally, in one proceeding, to sustain intervenors and third opponents’ contradictory positions not alternatively pleaded.

They seek to have the mortgage declared simulated, fraudulent, void, under which the property was sold, or to have been extinguished ; at the same time they pray to be paid out of the proceeds of the sale.

In other words, under part of the averments, there was no sale possible.

Under the remainder of the averments there was a sale, and they pray to be paid from the proceeds.

The authorities are that a third person in good faith acquires title although the sale be made under an invalid or extinguished mortgage.

Granted, this does not have the effect of lessening the force and effect of judicial allegations.

The intervenors and third opponents are bound by their allegations without regard as to whether there is a title or no.

As to them, in this suit, they are in the attitude of alleging that there was no mortgage and in consequence no sale.

And immediately after that there was a sale, and that they were entitled to the proceeds.

Whatever may be the effect of these allegations and what scope they should be given ultimately, I express no opinion.

Their effct and scope, I will state, however, with great respect, should be considered in other proceedings averring consistent causes of action.

On Application nor Rehearing.

Watkins, J.

An examination of this case has only served to confirm us in the conclusions at which we first arrived — the issues examined and the questions decided being equally applicable to the original and supplemental petitions of intervention; no alteration in the phraseology of the decree is necessary, except to make it applicable to the original as well as the supplemental petitions.

It is therefore ordered, adjudged and decreed that our original decree be so amended as to order the case remanded to the lower court, to be there proceeded with according to law and the views in our opinion expressed on both the original and supplemental petitions.

Rehearing refused.