By the WHOLE COURT. On July 28, 1924, relators applied to this court for a mandamus to compel the judge of the Twenty-First Judicial district court to grant them an injunction, which they claimed of right under the Code of Practice. All this was therefore before Act 29 of 1924 went into effect (July 30, 1924), and accordingly nothing herein must be taken as applicable to the provisions of that act, whatever they may be.
George C. Briscoe sued out an executory process and thereunder seized relators' property. Relators applied for and were allowed suspensive and devolutive appeals. Their devolutive appeal was perfected; but relators were unable to furnish the bond required for a suspensive appeal. Relators then applied for an injunction to restrain the sale; the trial judge issued a rule nisi, and after a hearing refused the injunction.
The grounds for injunction were that the act of mortgage was not authentic; that the notes sued upon were not identified with said mortgage; that said notes and mortgage were obtained from respondents, by said Briscoe, by fraud and misrepresentation.
Pretermitting for the moment the ground of alleged fraud and misrepresentation, it may be said that it was formerly the jurisprudence of this court that an executory process could not be arrested by injunction on the ground of insufficiency of the evidence on which the order of seizure and sale issued, that the sole remedy was by appeal. *Page 29 Durac v. Ferrari, 25 La. Ann. 80, 81; Naughton v. Dinkgrave, 25 La. Ann. 538; Shreveport v. Flournoy, 26 La. Ann. 709. Which jurisprudence was followed up to Buck v. Massie, 109 La. 776, 33 So. 767.
But in Hackemuller v. Figueroa, 125 La. 307, 51 So. 207, where the only question was as to the sufficiency of the evidence on which the order of seizure issued, this court held:
"Though an appeal from an order of seizure and sale may, in a particular case, be an adequate remedy, the seized debtor has also a remedy by injunction; and he may obtain such writ on grounds other than those specified in Code Prac. art. 739, provided he furnish bond and otherwise comply with the law regulating the issuance of the writ of injunction." Syllabus No. 2.
And the court said:
"It is true that the defendant in the seizure might have appealed, the facts relied on being patent on the face of the record; but that an order of seizure and sale `is not a judgment, in the true and legal sense of the term, and possesses none of its features,' has long since been recognized by this court (Harrod v. Voorhies' Adm'x, 16 La. 254), and that an appeal is not the only remedy is evident, since the law provides the remedy by injunction (Code Prac. arts. 303, 304, 740, 741, 742, 749, 750; Calhoun v. Bank, 30 La. An. 780)."
In Bass v. Barthelemy, 134 La. 319, 64 So. 126, where again the question was as to the sufficiency of evidence of which the order of seizure and sale issued, to wit, "that the act sued on was not authentic * * * and that the note sued on was not identified with said act," this court held:
"In such cases where the writ has issued (improvidently), and the property * * * has been seized and sold, the defendant is not confined to the remedy by appeal, but may resort to the remedy by injunction and action in nullity." Citing, inter alia, Hackemuller v. Figueroa, supra.
But in this case before us the injunction was prayed for, not only on the ground that the evidence was not sufficient, but also on *Page 30 the ground that the act containing the mortgage was obtained by fraud, and hence under the very text of C.P. art. 738, and article 739, No. 6, relators were entitled to their injunction of right "on furnishing bond." Hackemuller v. Figueroa, supra.
Of course a devolutive appeal affords no adequate remedy in such a case, and the mere fact that relators first sought that wholly inadequate remedy ought not to prejudice their right to pursue a proper one. Such an appeal would not stop the sale of the property. And, should the sale take place pending the appeal, said appeal would then present only a moot question, since the validity of the order of seizure and sale would again have to be litigated with the purchaser at such sale, and the judgment rendered on such appeal would decide no issue whatever between the main parties, except the single abstract question whether the writ issued properly on the face of the papers; it would decide nothing as to the validity of the debt sued upon. Hence such an appeal could not be entertained after the sale of the property under the writ. Ouachita Nat. Bank v. Shell Beach Const. Co.,154 La. 710, 98 So. 160. And we observe that relators have so far appreciated this that they have not lodged the transcript of appeal in this court. We think relators had the right to abandon their appeal, as they did, and pursue their remedy by injunction.
I. It may be that in this proceeding we might here and now pass upon the question whether the mortgage relied upon is an authentic act, and whether the notes sued upon are sufficiently identified with that act to authorize executory process thereunder, but on consideration we think it inadvisable to do so. For relators have set up other grounds for their injunction, upon which we think they are entitled to the injunction of right, and, since respondent, Briscoe, will doubtless *Page 31 in answer to said injunction reconvene for the amount of his claim, so that the real controversy between the parties will then be fully thrashed out and the question of proceeding via executive or via ordinaria become a mere abstract one, we have concluded not to pass at this time on the right of respondent to proceed via executive. For, accordingly, as plaintiffs in injunction be successful or unsuccessful in their attempt to prove the alleged fraud, it is certain that the final judgment in the case must either reject respondents' claim in toto or give him judgment in full therefor, recognizing his mortgage and entitling him to execute such judgment by writ of fi. fa.
That is to say, we find that relators are entitled of right to their writ of injunction, so as to try their issue of fraud, and we feel that, when that issue is disposed of, the matter of proceeding by seizure and sale or by fi. fa. will be of no further consequence to either party. In any event, we think the whole case should be tried at one time and not piecemeal.
Decree. It is therefore ordered that the rule herein issued be now made absolute, and the respondent judge is now directed to grant relators a preliminary injunction as prayed for, upon their furnishing bond and security in a sum to be fixed by him. The costs hereof to be paid by the respondent Briscoe.
O'NIELL, C.J., concurs in the decree, but not in the obiter dictum to the effect that the defendant in an executory proceeding may obtain an injunction instead of appealing, when his only remedy under the order is a suspensive appeal.
On Rehearing.