State ex rel. McGill v. Renshaw , 13 Tiess. 159 ( 1915 )

His Honor, JOHN ST. PAUL,

rendered the opinion and .decree of the Court, as follows:

Relator seeks by mandamus to compel the respondent to allow him an appeal from a judgment condemning him to pay over a certain fund to a certain litigant.

The learned respondent concludes his return as follows:

“The question is not as to the correctness of the decree on the rule, but as to the constable’s right to an appeal.”

And the brief filed in his behalf states the issue in these words:

“It is conceded that the pivotal point on which the case turns is whether or not the constable has an appealable interest.”

Such is our understanding of the matter.

In the case at bar, the constable has, in our opinion, shown such an interest.

He alleges that the fund which he has been condemned to pay over, came into his hands whilst he held two distinct writs against the same defendant, taken out by two distinct parties, in two distinct proceedings, pending before different Judges of the 'Court a qua; that’the tund is not sufficient to satisfy both writs; that the judgment condemning him to pay the fund to one of the parties was not rendered contradictorily with the other, and will not protect him against the subsequent claims .of that other party if well founded.

Under this recital the constable’s appealable interest admits of' no doubt, since, if in fact the proper parties were not before the Court, and there was no laches on his part, the judgment though prejudicial to him will not protect him.

It is therefore ordered that the mandamus herein issued be now made peremptory and accordingly that the respondent be directed to allow relator a suspensive and devolutive appeal from the judgment by him rendered on July 12th, 1915, in the matter entitled F. C. Philippe, Jr., vs. William Weisfeld, No. 70,054 of the docket of his Court; the costs hereof to remain as incurred.

Opinion and decree, December 6th, 1915.

State vs. Recorder, 45 An., 1199.