The relators in this case were defendants in an executory proceeding, and are plaintiffs in an injunction suit. In their petition for injunction they alleged (1) that the mortgage was obtained by fraud and misrepresentation, and (2) that they had a liquidated claim against the seizing creditor which would compensate or offset the latter's claim against them. They were therefore entitled to a writ of injunction, as a matter of absolute right, and without giving bond. Code of Prac. art. 739, Nos. 6 and 7; and article 740.
Justice ST. PAUL so ruled, in the original opinion which he handed down in this case; but, in his decree, directing the district judge to grant the writ of injunction, the learned justice made the mistake of saying that the plaintiff in the injunction suit should give bond for such sum as the district judge might require. According to article 740 of the Code of Practice, the district judge could not require the plaintiffs to give bond for an injunction obtained on either of the allegations of their petition, viz. either that the mortgage was obtained by fraud or misrepresentation, or that the plaintiffs in the injunction suit had a liquidated claim to plead in compensation.
A rehearing was granted merely to correct the error of saying, in the court's decree, that the plaintiffs in the injunction suit should give bond.
We ought to correct the error by saying, according to articles 739 and 740 of the Code of Practice, that the plaintiffs are not *Page 34 required to give bond. Instead of so saying, the decree written by Justice ROGERS says that the plaintiffs may take their choice of an injunction with or without bond; provided that, if they take the injunction without bond, they must confine their proof to the two material defenses which they have set up in their petition for injunction, whereas, if they give bond for the injunction, they may show also that there was not sufficient authentic evidence presented to the district judge, in the petition for executory proceedings, to warrant the order of seizure and sale.
Justice ST. PAUL had pointed out, in his opinion, that the allegation in plaintiffs' petition for an injunction, that there was not sufficient authentic evidence in the executory proceedings to warrant the order of seizure and sale, presented only a moot question, which the court would never have to decide.
The plaintiffs in this injunction suit, as defendants in the executory proceeding, realized at the outset that the only method by which they could present the question, whether there was sufficient authentic evidence in the executory proceedings to sustain the order of seizure and sale, was by an appeal from the order. Therefore they did obtain an order of appeal. But they realized also that an appeal from an order of seizure and sale was not a substantial defense, but could merely convert the proceeding via executive into a proceeding ordinaria. And they realized that their two substantial defenses — that the mortgage had been obtained by fraud or misrepresentation and that they had a liquidated account to plead in compensation — were defenses which they could urge by way of an injunction without bond, but not by an appeal from the order of seizure and sale. Therefore the defendants in the executory proceeding abandoned their appeal and filed a petition for an injunction without bond, under articles 739 and 740 of the *Page 35 Code of Practice. Having alleged the two causes for which they were entitled to the injunction without bond, under articles 739 and 740 of the Code of Practice, they threw in, for lagniappe, or for good measure, the allegation that the order of seizure and sale had issued without sufficient authentic evidence.
Of course, the plaintiffs in this injunction suit are not going to furnish a bond merely to have the privilege of pointing out — or contending or arguing with the district judge — that his order of seizure and sale was not warranted by sufficient authentic evidence in the executory proceeding. What advantage would that be? Its only purpose would be to convert the proceeding via executive into a proceeding via ordinaria. But the conversion has already been accomplished, in effect, by the granting of the injunction without bond; for the defendants in the executory proceeding have now, as plaintiffs in this injunction suit, the same opportunity for presenting their substantial defenses to the original suit as if it had been commenced via ordinaria. That is what Justice ST. PAUL said, substantially, in the opinion which he handed down, viz.:
"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 [plaintiff in the executory proceeding], will doubtless 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 *Page 36 the case must either reject respondent's 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."
What I desire to register my protest against in this case, however, is the pronouncement made in the opinion of Justice ST. PAUL — which he virtually admitted was only a matter of academic discussion, but which seems to be carried into the decree written finally by Justice ROGERS — that a defendant in an executory proceeding is entitled to a writ of injunction on the allegation merely that there is not sufficient authentic evidence to sustain the order of seizure and sale. Justice ST. PAUL did not quite say that. But he undertook to show that two recent decisions of this court had upset all previous jurisprudence on the subject. He cited Hackemuller v. Figueroa, 125 La. 307, 51 So. 207, and Bass v. Barthelemy, 134 La. 319, 64 So. 126, as if they were the last decisions on the subject. But the learned justice was mistaken. There were many decisions before the ruling in Hackemuller v. Figueroa and Bass v. Barthelemy, and there have been several since, maintaining that a defendant in executory proceedings is not entitled to a writ of injunction on the allegation or showing that the order of seizure and sale was issued without sufficient authentic evidence; the only remedy of the defendant in such case being an appeal from the order of seizure and sale. Here are the decisions which I shall quote from, viz. Durac v. Ferrari, 25 La. Ann. 80; Naughton v. Dinkgrave, 25 La. Ann. 538; City of Shreveport v. Flournoy, Sheriff, et al., 26 La. Ann. 709; Linn v. Dee, 31 La. Ann. 219; Wood Roane v. Wood, 32 La. Ann. 801; Montejo v. Gordy, Sheriff, et al., 33 La. Ann. 1115; Latiolais v. *Page 37 Citizens' Bank, 33 La. Ann. 1453; Carroll v. Chaffe, 35 La. Ann. 86; Chaffe v. Du Bose, 36 La. Ann. 257; Dupre v. Anderson, 45 La. Ann. 1135, 13 So. 743; Buck v. Massie, 109 La. 782, 33 So. 767; State ex rel. Pelletier v. Sommerville, Judge, 112 La. 1099, 36 So. 864; Richardson v. McDonald, 139 La. 651, 71 So. 934; Franek v. Brewster, 141 La. 1044, 76 So. 187.
The case of Bass v. Barthelemy, 134 La. 319, 64 So. 126 cited in the opinion handed down by Justice ST. PAUL is really not in conflict with the decisions which I have cited, because Bass v. Barthelemy was not an injunction suit at all, but an action to annul a sale that had been made in foreclosure of a mortgage against a nonresident of the state.
The other decision cited by Justice ST. PAUL (Hackemuller v. Figueroa, 125 La. 307, 51 So. 207), stands alone in our jurisprudence, and is an erroneous application of a previous decision by the same author. The previous decision (Calhoun v. Bank, 30 La. Ann. 772) was a correct ruling, but was not at all applicable to the case of Hackemuller v. Figueroa. In the former case the defendant in the injunction suit, plaintiff in executory proceedings, contended that the only grounds or causes for which a defendant in executory proceedings could obtain an injunction were those enumerated in article 739 of the Code of Practice, and that, if the defendant had any other complaint, his remedy was to appeal from the order of seizure and sale. The court ruled otherwise, of course, maintaining that the grounds or causes enumerated in article 739 of the Code of Practice were those for which the defendant in executory proceedings might obtain an injunction without giving bond, and that, to obtain an injunction for any other cause, as, for example, for any of the causes specified in article 298 of the Code of Practice, the plaintiff in the injunction suit had to furnish a *Page 38 bond, according to article 304. It was not said, or suggested, that a defendant in executory proceedings could obtain an injunction on the allegation or showing that the order of seizure and sale had issued without sufficient authentic evidence. There was no such question in the case. But in Hackemuller v. Figueroa, where the injunction was improperly obtained on the allegation that the order of seizure and sale had issued without sufficient authentic evidence, the author of the opinion in Calhoun v. Bank misapplied the doctrine of that decision, and ruled that the defendant in executory proceedings, on alleging or showing that the order of seizure and sale had issued without sufficient authentic evidence, might either appeal or obtain an injunction, at his option, viz.:
"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 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. Ann. 780)."
To maintain that a defendant in executory proceedings may obtain an injunction, instead of appealing from the order of seizure and sale, on the allegation or showing that the order of seizure and sale issued without sufficient authentic evidence would bring about anomalous results. The question whether a plaintiff in executory proceedings presents sufficient authentic evidence to entitle him to the order of seizure and sale must be determined from the face of the record, by the judge to whom the petition is addressed. Is it possible that the mere allegation, which would be only the opinion, of the defendant in such case, that there was not sufficient authentic evidence to warrant the order of seizure and sale, should compel the judge to stultify himself by granting an injunction against his flat? If that should ever become the law, no one would ever appeal *Page 39 from an order of seizure and sale, by giving bond for 50 per cent. more than the amount secured by the mortgage. Orders of seizure and sale would then have little or no force or effect, for they would always be subject to the right of the defendant to halt the proceeding via executive, and convert it into a proceeding via ordinaria, by merely disputing the opinion of the judge, with regard to the sufficiency of the evidence before him. That cannot possibly be the law.
On the other hand, if the judge, in such case, may exercise his discretion and either withhold or grant the injunction, according to his judgment as to whether the authentic evidence before him is sufficient or insufficient to sustain his order of seizure and sale, there will be nothing left for the judge to decide after he has granted an injunction on the defendant's allegation that the order of seizure and sale issued without sufficient authentic evidence. In such case, the judge might as well, at once, set aside his order of seizure and sale, instead of granting an injunction against it; for orders of seizure and sale are only ex parte orders, which do not adjudicate upon any issue between the parties.
The final decree written by Justice ROGERS in this case is a splendid exemplification, and a demonstration, of the fallacy of maintaining that a defendant in executory proceedings may arrest the seizure and sale by injunction by allegating merely that there is not sufficient authentic evidence to sustain the order of seizure and sale. The decree, stated broadly, is that the district judge shall grant the preliminary injunction either with or without bond, provided that, if the plaintiffs in the injunction suit do not furnish bond, they shall not be allowed to prove their allegation that there is not sufficient authentic evidence to sustain the order of seizure and sale, and "they shall be confined to the proof of the particular causes *Page 40 in Code Prac. art. 739, which they have alleged and set forth in their petition." Now, how, I ask, can the plaintiffs in this case, defendants in the executory proceedings, be required to prove their allegation that there is not sufficient authentic evidence to sustain the order of seizure and sale? How could they prove it? It is only a matter of opinion — a question of law — to be determined by the court itself, whether the evidence in the case is sufficient to sustain the order of seizure and sale. That is why the question should be propounded by way of an appeal from the order of seizure and sale, and not by a petition for injunction.
My purpose in writing this dissenting opinion is to prevent a muddling of the jurisprudence on the subject. Except for the unfortunate misapplication of the doctrine of Calhoun v. Bank, in the case of Hackemuller v. Figueroa, there would never have been a departure from the rule so firmly established by the long list of decisions which I have cited, maintaining that a defendant in executory proceedings is not entitled to an injunction on the allegation or contention that the order of seizure and sale issued without sufficient authentic evidence.
The supposition in the original opinion handed down in this case, that Hackemuller v. Figueroa and Bass v. Barthelemy were the latest decisions on the subject, and had overturned what was theretofore the settled jurisprudence was a mistake; that is all. And the supposition was not pertinent or necessary to the deciding of this case.
I shall quote now, literally, from the decisions which I have cited; not one of which decisions has ever heretofore been referred to with disapproval. And I do this with the profound hope and purpose of seeing that the unfortunate ruling in this case shall not be regarded by the profession as the undoing of these many years of lawmaking on the subject. *Page 41
From Durac v. Ferrari, 25 La. Ann. 80, I quote:
"An appeal is the proper remedy where a decree of seizure and sale has been obtained on insufficient evidence."
From the City of Shreveport v. Flournoy, Sheriff, et al., 26 La. Ann. 709, I quote:
"The objection that there was not sufficient evidence to authorize the order of executory process cannot be examined on an injunction. The remedy was by appeal."
From Wood v. Wood, 32 La. Ann. 801, I quote:
"The only question before this court in an appeal from an order of seizure and sale is whether there was legal and sufficient evidence before the judge to justify his fiat."
From Montejo v. Gordy, Sheriff, et al., 33 La. Ann. 1115, I quote:
"It is true as contended by counsel of appellee, that the sufficiency of evidence to authorize the order of executory process cannot be examined on an injunction, and the remedy in such cases is by appeal. City of Shreveport v. Flournoy, 26 Ann. 709; Rhea v. Taylor, 8 An. 23; Bloom v. Martin, 20 An. 256; and therefore we can, in that regard, enter upon no such examination."
From Latiolais v. Citizens' Bank, 33 La. Ann. 1453, I quote:
"The question whether there was sufficient authentic evidence to justify the fiat of the district judge, should have been presented on appeal and not on a petition for an injunction."
From Chaffe v. Du Bose, 36 La. Ann. 257, I quote:
"Injunction will not lie to restrain executory process for want of authentic evidence of the indorsement of the notes. The remedy in that case is by appeal from the order of seizure and sale."
From Dupre v. Anderson, 45 La. Ann. 1135, 13 So. 743, I quote:
"The particular ground upon which the injunction is rested is that the order of seizure and sale issued without production of the complete authentic evidence required by law. It has been repeatedly and distinctly held that *Page 42 this affords no ground for injunction in any case, but that the remedy is by appeal. * * * Shreveport v. Flournoy, 26 An. 709." etc.
From State ex rel. Pelletier v. Sommerville, Judge, 112 La. Ann. 1099, 36 So. 867, which was written by the author of both of the opinions cited by Justice ST. PAUL, Hackemuller v. Figueroa and Bass v. Barthelemy, I quote what he quoted from Naughton v. Dinkgrave, 25 La. Ann. 538, and what he added, viz.:
"This court there held (quoting from the syllabus) that: `An order of seizure and sale should not be enjoined for insufficiency of the evidence upon which it was rendered. The remedy is by appeal. * * * A district judge cannot revise his decrees by injunction on the ground of the insufficiency of proof.' * * * The propositions contained in this excerpt are based upon plain provisions of law."
From Richardson v. McDonald, 139 La. 651, 71 So. 943, I quote:
"The only remedy of a defendant in executory proceedings, who complains merely that there was not sufficient authentic evidence before the court to warrant the issuance of the order of seizure and sale, is to appeal from the order."
From Franek v. Brewster, 141 La. 1044, 76 So. 192, I quote:
"The only process afforded a defendant for arresting executory proceedings, on the complaint that there was not sufficient authentic evidence before the judge to authorize the issuance of his fiat, is by an appeal from the order of seizure and sale. And the only remedy for arresting executory proceedings, on grounds not disclosed by the proceedings, is by injunction."
When a court of last resort finds two lines of decisions crossing each other on a point of law, and the court cannot reconcile the conflicting decisions with a reasonable and candid explanation, there is nothing for the court to do but to overrule one and affirm the other line of decisions. Here we find that the court has decided 14 times that a defendant in executory proceedings cannot arrest the seizure and sale by injunction for *Page 43 insufficiency of the authentic evidence on which the order of seizure and sale issued, his remedy being by appeal from the order of seizure and sale, and we find that the court has decided once the other way. The 14 decisions one way are sound in their logic and have never been referred to with disapproval; the one decision the other way (Hackemuller v. Figueroa) is obviously wrong, would lead to anomalous results, and has been virtually overruled by later decisions to the contrary.
For all of which reasons, I respectfully decline to approve the final decree in this case, in so far as it seems to carry out the wrong and unnecessary supposition announced in the original opinion, that a defendant in executory proceedings may arrest the proceedings by a preliminary injunction, instead of appealing from the order of seizure and sale, on the allegation that the order of seizure and sale is not supported by sufficient authentic evidence.