The majority opinion and decree in this case seems to be based upon a doctrine which is not appropriate to the facts of the case. The proposition of law is stated in the opinion and answered thus:
"It will be seen from the foregoing statement of facts that the question presented is, not whether a judicial mortgage takes precedence over an ordinary conventional mortgage recorded subsequent to the recording of the judicial mortgage, for that goes without saying, but whether any judicial mortgage results at all to the prejudice of third parties, from a judgment recorded in the mortgage office during the pendency of a suspensive appeal. * * *
"Our conclusion is that a judgment recorded in the mortgage book, whether before or after a suspensive appeal has been perfected from such judgment, can have no effect as creating a judicial mortgage during the pendency of the suspensive appeal as against third parties who may have acquired rights on the property of the judgment debtor during the pendency of the appeal and before final judgment thereon." (The italics are mine.)
There was no appeal from the judgment condemning the Jefferson Construction Company to pay the First National Bank of Miami $2,730.45. After the judgment had become final and exigible, the Jefferson Construction Company stopped execution of it by means of an injunction. The allegations on which the temporary and ex parte injunction was granted were that the judgment was obtained on a promissory note signed by the Jefferson Construction Company and indorsed by one Manley, that Manley had paid the note for the Jefferson Construction Company, *Page 783 and that the bank had sued and obtained judgment against the Jefferson Construction Company for the use and benefit of Manley, with the purpose and intention of crediting the collection to his account. "Whereupon," said this court in the opinion rendered in that case, "plaintiff admitted (and afterwards proved) that these allegations were true." When the injunction suit was submitted to the district court for decision, the court promptly dissolved the injunction and dismissed the suit, because of the principle of law — which this court affirmed on appeal — that there is always at least an implied contract between the principal debtor and his surety that the principal debtor is obliged to reimburse the surety if the latter pays the debt. The Jefferson Construction Company took a suspensive appeal from the judgment of the district court dissolving the temporary injunction. The effect of the appeal was to keep the temporary injunction in force until this court affirmed the judgment of the district court. See First National Bank of Miami v. Jefferson Construction Co., 162 La. 47, 110 So. 84.
Meanwhile the bank's judgment against the Jefferson Construction Company for $2,730.45, as well as the judgment dissolving the temporary injunction, was recorded in the mortgage office; and, after the judgments were recorded, the Jefferson Construction Company placed two special mortgages on record in favor of third parties. While the appeal from the judgment dissolving the temporary injunction was pending in this court the real estate belonging to the Jefferson Construction Company and affected by the bank's judicial mortgage and by the two special mortgages was seized and sold by the sheriff in the foreclosure of a first mortgage and vendor's lien, which primed the bank's judicial mortgage and the two special mortgages. The surplus of the proceeds of the sale, in the sheriff's hands, after satisfying the first *Page 784 mortgage and vendor's lien, was not enough to pay the bank's judicial mortgage and the two special mortgages recorded subsequent to the judicial mortgage. The question, therefore, is whether the bank's judicial mortgage should be paid in preference to the two special mortgages which were recorded after the bank's judicial mortgage was recorded,
The opinion of the majority of the members of the court seems to be that the registry of the bank's judgment for $2,730.45 was absolutely null, or without effect as a judicial mortgage, as far as third parties were concerned, until this court affirmed the judgment of the district court dissolving the temporary injunction which had been issued ex parte. And the reason for that opinion is that the recording of the bank's judgment for $2,730.45 was a violation of the temporary mandate or injunction which the district judge had granted ex parte, and which he had afterwards revoked, but which was kept in force by an appeal to this court until the judgment dissolving the temporary injunction was affirmed. I do not subscribe to that doctrine.
It is well settled by the decisions of this court that a suspensive appeal from a judgment condemning the defendant to pay a sum of money has the effect of staying execution of the judgment, even to the extent of forbidding a recording of the judgment as a judicial mortgage, pending the appeal. If such a judgment be recorded as a judicial mortgage while a suspensive appeal taken by the defendant is yet pending, or during the time allowed him for taking a suspensive appeal, he may demand that the judicial mortgage be canceled. Dannenmann Charlton v. Charlton, 113 La. 276, 36 So. 965; Cluseau v. Wagner,126 La. 376, 52 So. 547; Daly v. Brock, 133 La. 752, 63 So. 318; State ex rel. Macheca v. Dunn, Recorder, 148 La. 460, 87 So. 236.
The raison d'être of that rule is that the only kind of judgment that can have the effect *Page 785 of a judicial mortgage is a final judgment for a sum of money; and a judgment which is pending on a suspensive appeal taken by the defendant is not a final judgment against him until the judgment is affirmed or the appeal dismissed. It is because of that great effect of a suspensive appeal from a judgment condemning the defendant to pay a sum of money that he is required to give an appeal bond for a sum exceeding by one-half the amount of the judgment against him, with good and solvent surety, to guarantee that he or his surety will pay whatever judgment may be finally rendered against him on appeal.
A judgment for a sum of money should not be executed, either by the issuing of a fi. fa. and levying of a seizure or by the recording of the judgment as a judicial mortgage, within the delay allowed the defendant for taking a suspensive appeal; but such a premature execution of a judgment is not null because of its being premature. It is a valid execution if the defendant does not take a suspensive appeal within the time allowed. Labarre v. Durnford, 10 Mart. (O.S.) 180, 182; Hatch v. English, 12 Rob. 135; Leggett v. Potter, 9 La. Ann. 309; Sowle v. Pollard, 14 La. Ann. 287. And so it has been held that a premature execution of a judgment of the Supreme Court "is a mere irregularity which may be corrected by an application for rehearing, timely made, and which becomes valid after the expiration of the delay." Morgan v. Whiteside, 14 La. 280; Hatch v. City Bank, 1 Rob. 497; Regan v. Washburn, 39 La. Ann. 1071, 3 So. 178.
Accordingly, if the execution of the bank's judgment against the Jefferson Construction Company for $2,730.45 had been stayed by a suspensive appeal from that judgment, on a bond for one-half more than that sum, perhaps the premature registry of the judgment in the mortgage office would not have had the effect of a judicial mortgage, as far as *Page 786 third parties were concerned, until and unless the judgment should have been affirmed on the appeal. But that is not the case. The execution of the judgment was not stayed or suspended by a suspensive appeal; it was forbidden by a temporary injunction, granted ex parte, after the judgment for $2,730.45 had become final and exigible. When the execution of a final judgment is stayed by a temporary injunction, issued ex parte, the effect may be merely to forbid the levying of a seizure or the issuing of a fi. fa., or it may go so far as to forbid also the recording of the judgment — depending altogether upon the language of the temporary mandate or writ of injunction, or its proper interpretation by the court that granted it. The temporary injunction, which was issued at the instance of the Jefferson Construction Company in this case, as I understand, in terms merely forbade the "execution" of the judgment. Perhaps that language would have been construed as forbidding a recording of the judgment in the mortgage office, if the Jefferson Construction Company had raised the question, before the temporary injunction was finally dissolved, by demanding that the bank be ordered to show cause why the inscription of the judgment should not be canceled, for being done in violation of the temporary injunction, and why the bank should not be adjudged guilty of contempt of court and be punished for having violated the temporary mandate of the court. But, without any such complaint being made by the Jefferson Construction Company, at whose instance alone the temporary injunction was issued, the registry of the judgment as a judicial mortgage was not null or without effect as to third parties. They (the two third persons who took special mortgages on the Jefferson Construction Company's property after the bank's judgment was recorded) had no right to contend that the recording of the bank's mortgage was a violation of the temporary *Page 787 injunction which had been issued, not at their instance, but at the instance of the Jefferson Construction Company. That was a matter concerning only the Jefferson Construction Company, and the dignity of the court which had issued the temporary injunction, and the dignity of this court while the injunction suit was pending on appeal, but only so long as the temporary injunction was in force. It is not at all certain that either the district court or this court would have ordered the bank's judgment canceled from the mortgage records, or would have deemed the recording of the judgment a violation of the temporary injunction, or would have adjudged the bank guilty of contempt of court for recording the judgment while the injunction against its "execution" was in force, if the Jefferson Construction Company had complained before the temporary injunction was finally dissolved.
For these reasons, I respectfully dissent from the opinion and decree rendered in this case.