State ex rel. Truxillo v. Gilbert ( 1930 )

LeBLANC, J.

On March 17, 1930, Caleb C. Weber, applied to and obtained from the district judge an order of executoryprocess on a mortgage note of $700 made and indorsed in blank by Harvey J. Truxillo.

He alleged himself to be the holder and owner thereof for a valuable consideration and before maturity. Three days after the order was issued, Truxillo, through his counsel, obtained from the court a temporary restraining order with a rule nisi directed against Weber, and ordering him to show cause in open court on March 29, 1930, at 10 o’clock a. m. why a preliminary writ of injunction should not issue, without bond, to prevent the sale of his property Under the order of executory process which had issued.

The petition of Truxillo for a temporary restraining order and rule nisi alleged, in substance, - that the note sued on had been executed anil given by him to Weber to secure a surety company against loss for having signed his bond in some previous litigation in which Weber had represented him. That the suit in which the bond had been executed had been dismissed, consequently all liability on the bond had come to an end, and the purpose for which the note was given having been served, it had become extinguished and should have been returned to him by Weber, who, instead had, without warrant or right in law, appropriated it to himself.

The rule was tried on the date it had been made returnable, and, after hearing considerable evidence, the district "judge refused to grant the preliminary injunction. The temporary restraining order by its own terms expired the same day.

Olí'April 4, Í930, Truxillo applied to this court for a writ of mandamus to compel the district judge to grant the injunction pendente lite which he had prayed for in his petition of opposition to the executory process. An order was issued directing the district judge to show cause in this court on April 14, 1930, why the mandamus should not issue, and also staying all proceedings pending the hearing of the application.

In his answer to the rule, the respondent judge details at considerable length all the proceedings in the case, reviews the evidence, and then justifies his action in refusing the injunction after being convinced that the applicant had not supported his allegations with proper' proof, and believing that he was following the established rules of practice and procedure in this state, especially since the enactment of Act No. 29 of 1924, known as the Injunction Law.

Most of the argument on both sides is devoted to a discussion of the effect of the Injunction Law in cases where the injunction is asked for in sales under executory process under article 739 of the Code of Practice. In such cases of course, under the former practice, the injunction issued as a matter of right, and without bond. Much is said also about how far the district judge should go in hearing and passing on the evidence in the trial of a rule nisi under the act, and the effect to be given to his judgment when refusing the injunction. The discussion is interesting and instructive, and might be of great benefit in settling a rather perplexing question which frequently confronts the appellate court in these cases. The condition we referred to is the one brought about, as stated by the Supreme Court, in the case of First National Bank v. Hebert, 182 La. 703, 111 So. 66, 69, “because of the circuitous and anomalous practice that is required by the Act 29 of 1924” which allows evidence to be introduced on the trial of a rule to show cause why a preliminary injunction should not issue, and amounts virtually to a trial and disposition of the case on its merits “although, ostensibly, all that was tried or decided was the rule to show cause why the preliminary injunction should not issue.’’ However, interesting and illuminating though it may be, the discussion does not serve much purpose before this .court, at this time, if we are to follow the ruling made in the case of Wall et al. v. Tangipahoa School Board, 9 La. App. 178, 119 So. 371. By reference to that case it will be observed that the same condition prevailed as exists in this case. Although, on a different cause of action, a rule nisi for a preliminary injunction had been tried and the district judge had refused to grant it. Application was made to this court for writs of certiorari and prohibition, and for a mandamus to force the district judge to issue the injunction. Applying the ruling made by the Supreme Court in the case of T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 1G0 La. 830, 107 So. 593, 596, that if any relief was to be given in cases of this kind it had to be given under its supervisory jurisdiction, we denied the application, as this court has no supervisory jurisdiction. Our right to issue writs of prohibition, certiorari, and mandamus is limited. It is only in aid of our appellate jurisdiction that we have the power to issue them. Riccobono v. Kearney, 164 La. 844, 114 So. 707. ' In this case, as in the Wall v. School Board ease, supra, the applicant has precluded his rights to a suspensive appeal by alleging in his application that no suspensive appeal lies from an order refusing to grant an injunction. As a matter of fact the injunction act, Act No. 29 of 1924, under which he proceeded denies him that appeal. As for a devolutive appeal, the same can be said of it here, as was said by the Supreme Court in the Hofman-Olsen, Inc., v. Lumber Co. case, supra:

“It is obvious that it would not afford adequate relief.”

It is apparent therefore that there will be no appeal, and, in the absence of any, we are without right to entertain the application for the writs.

As we cannot grant the relief demanded, the application for the writ is denied, and the order heretofore granted on April 4, 1930, staying all proceedings in this matter, is hereby recalled.