B. Bellocq, Auguste Noblom and Pierre Boy, defendants in execution, in the suit of Mrs. O. Gayarré against them, in the Fourth District Court, state that, on executing the writ of fi. fa., the Sheriff proceeded, at the instance of the plaintiff, to seize property, real and personal, disregarding the debtor’s right to point out property. That a rule was taken upon the Sheriff to restrain him; and that, upon a final trial of said rule on a new trial, the Judge had ordered that the relator’s property, which had been seized, should remain in the custody of the law until the Sheriff should have seized the property, which he refused to levy upon, advertised and proceeded to sell the same. That, from that order, they have applied for a suspensive appeal to this Court, and that the District Judge refused to grant it. They prayed for a writ of mandamus to the Judge to show cause why he should not grant a suspensive appeal. This writ having been issued, directed to the Judge of the Fourth District Court of New Orleans, he has answered in this Court, in substance: That, in the case of Mrs. Gayerré v. Bellocq, Noblom & Co., a judgment was rendered in favor of plaintiff, on the 20th November last, and signed on the 24th of same month.
No appeal having been taken, an execution issued on the. 13th of December, the Sheriff seized the household furniture and real estate of the defendants. That, on a new trial, the following order was rendered:
“It is ordered that the rule be made absolute, with the following' reserve, in favor of plaintiff: That the Sheriff shall seize and sell first the notes pointed out by defendants; and should they prove to be insufficient to pay the claim of plaintiff, with interest and cost, then he, the said Sheriff, shall proceed to satisfy the same out of the property now under seizure, which he shall keep in his possession for that purpose.”
That, from this judgment, the relators have filed a petition, praying for a suspensive appeal, upon furnishing security for cost only.
The Judge continues : The prayer has been refused because the District Court is of opinion that the effect of this appeal, if it were granted, would be to stay the execution of the judgment rendered in the case and that the only proceeding, by which the same can be stayed, is by injunction according to law, and that execution of judgment of Courts cannot be stayed by mere motions and rules. He cites Act of April 9, 1826, amending C. P. Art. 298; Minor v. Bank of United States, 4 R. 490; Clemnet v. Oakey, 2 B. 90.
We are of opinion that the District Judge decided correctly in refusing an appeal.
A final judgment had been rendered, and an execution having issued, the Sheriff seized property, and the defendants in execution pretending that the Sheriff had not proceeded legally, took a rule upon him. If a. *113party pretends that the Sheriff proceeds illegally in the execution oí his office, the remedy is clearly pointed out by law. O. P. Art. 298; Statute 7th April, 1826, p. 170, $ 9. The right of plaintiff to execute the judgment, which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond given for injunction. 9 A. 301.
The rule is dismissed, at the cost of the relators.