dissenting. I concur in the conclusions of Mr. Justice Morgan, but as the question before the court is one, in my opinion, of the most vital importance, I prefer to give my own reasons why I am not able to concur in the views of the majority of the court. I desire, however, not to express any opinion concerning the proper practice of the district courts when application is made to them for relief, except so far as this question arises in the case now before us.
If an ordinary action is instituted against me, and I see proper to file my answer within the legal delays, the court can not order a rule to be taken upon me to show cause why my answer should be stricken out as frivolous and untrue, and afterward decide, upon the trial of this rule, after hearing ex parte affidavits, that the allegations of my answer are, in fact, false, that judgment should be rendered against me, and that execution should issue forthwith. I am entitled in such a case to a trial upon the merits, and to the benefit of the ordinary rules of evidence. In case the plaintiff’s claim against me arises from an act importing a confession of judgment, he may proceed against me “ by causing the 'property subject to his privilege or mortgage to be seized and sold on a simple petition, and without a previous citation.” Code of Practice, art. 734. But the creditor can not proceed as though he had obtained judgment and were entitled to a writ of fieri facias. In obtaining the order he must “ give three days notice to the debtor, counting from that on which the notice is given, if he resides on the spot,.adding a day for every twenty miles between the place of his residence and the residence of the judge to whom the petition has been presented.” Code of Practice, art. 736. “ The delay accorded to the debtor before the issuing of the writ-is to enable the party to apply to the judge for an appeal, or to adopt some other mode of redress in case the proceedings are irregular and unlawful.” Nash vs. Johnson, 9 R. 8.
In certain eases when an order of seizure and sale has been improperly granted the debtor’s remedy is by appeal, in other cases his remedy is by injunction. But, whether the proper remedy be by appeal or by injunction, he has the constitutional right to have his'case passed uppn by the Supreme Court of ■ the State whenever the matter in controversy exceeds five hundred dollars. If I am sued on a promissory note, I can arrest the course of the proceedings against me by answering that I have paid the debt. If I am proceeded against upon an act importing a *914confession of judgment, I can arrest the proceedings by swearing that I have paid the debt. '
“ The debtor against whom an order of seizure and sale has been rendered,” says the Code of Practice, art. 738, “ may obtain an injunction to suspend the sale, if before the time of sale he liles in the court his opposition in writing, alleging some of the reasons contained in the following article, of which he shall swear to the truth.” “ The debtor may arrest the sale of the thing,” continues the Code, “by alleging some of the following reasons:
First — “ That he has paid the debt for which he is sued,” etc. Art. 741. “ The plaintiff against whom the injunction has been obtained, may compel the defendant to prove in a summary manner before the judge the truth of the facts alleged in his opposition.”
It will be observed that the executory process is regarded as a suit against the debtor. “ The debt for which he is sued,” is the language of the Code. It will also be observed that the debtor who flies his opposition in such a case, and thus obtains an injunction, is regarded as a defendant, and not as a plaintiff. Upon what principle, then, can it be urged that the defendant in the suit is not entitled to a trial, upon complying with the requirements of the law ? The Code of Practice declares in express terms that he can arrest the sale of the thing by alleging» under oath, that he has paid the debt. Can the judge of a district court abrogate the law by refusing to permit the sale to be arrested when the defendant flies the opposition required by the Code ? If he can deny the defendant a trial on the merits in a suit of this character, he can equally deny this right in any other case whenever his caprice or prejudice may deem the defense ill-founded. He may decide as he sees fit, but he can only decide after a trial. His duties in a case of executory process are clearly laid down in the Code. They are that “ he shall pronounce summarily on the merits of the opposition.” Art. 740. But this the judge has not done in the present instance. He has, on the contrary, refused to permit the opposition to be made, and has, in effect, stricken it from the record. The effect of his course is that the debtor is denied the very privilege which the law guarantees him. The judge does not proceed according to law, as he is bound to do, but according to his own notions of what is equitable and just in the premises. There is no pretense that the opposition is insufficient in law, but only that it is untrue in fact. In other words, my plea of payment may be entirely formal, and filed at the proper time, but, inasmuch as the judge is satisfied that it is ill-founded, I am not to be allowed a trial upon it, nor is it to be permitted to delay for a moment the judgment by default which it sought to avert. So in a case of executory process, my oath that I have paid the debt is formal and filed in time, but the judge satisfies himself by *915means of ex parte affidavits that the defense is ill-founded, and here, too, refuses me a trial upon the merits, upon which the law commands him to pronounce. Is there any difference in principle between the two cases ? I think not. My rights are as much disregarded and trampled under foot in the one case as in the other. I assume, therefore, that the action of the judge a quo was arbitrary, and in direct defiance of the law; and the question arises whether this court can grant any relief in such a case.
It is admitted that the matter in dispute exceeds five hundred dollars, and that it is, therefore, within our appellate jurisdiction. All that I have said with regard to the right of a party to a trial in the first instance applies with equal force to an appeal whenever the parties are entitled to this privilege. In such a case I would have the right to carry my plea of payment, whether in the case of an ordinary suit or in ease of executory process, before the Supreme Court of the State, and, by tendering the proper bond, to prevent the execution of any judgment against me until my rights in the premises had been finally passed upon by the tribunal of last resort. And any act of the judge a quo■ which deprives me of this privilege in a case in which I am entitled to it is as much an infringement of my rights as it would be to deprive me of any trial whatever.. The application to this court in the present instance is for a writ of mandamus to compel the judge a quo to arrest the sale of the thing; in other words, to compel him to perform that which it is not denied is his manifest duty under the law. “This order,” says the Code of Practice, art. 837, “ may be directed more particularly to judges of inferior courts, commanding them to render justice and to perform the other duties of their office conformably to law.” “In this case,” continues the Code, art. 838, “the order issues not only when the judges of inferior courts are guilty of a denial of justice, unreasonable delay in pronouncing judgment on causes before them, but also if they refuse or neglect to perform any of the duties required of them by law, or which may enable the superior courts to exercise their appellate jurisdiction.” In this case it is, in effect, admitted that the judge a quo has neglected to perform the duty required of him by law, which was to arrest the sale of the thing upon the filing of the proper opposition, and afterward to decide summarily upon the merits of the controversy. Would the writ in this instance enable us to exercise our appellate jurisdiction? Not only would it have this effect, but without the exercise of the writ we are absolutely and irremediably deprived of our jurisdiction. The theory of the law is that no order of seizure and sale for an amount exceeding five hundred dollars shall be carried into effect whenever the required opposition is filed, until the Supreme Court has finally passed upon the suit; provided, of course, that the defendant sees fit to avail himself of *916a suspensive appeal in case he is cast in the court below. But in this case the property is about to be sold without any opportunity being afforded to the defendant to appeal to this court for relief. There can be no appeal from a refusal to grant an injunction, as was decided by this court in the case of State ex rel. Newgass vs. Judge of the Superior District Court, 27 An. 672. Besides, even if an appeal lay, it would not in such a case prevent the sale. If the sale were once arrested, a suspen-sive appeal from the judgment dissolving.the injunction would keep matters in statu quo. But there could no more be a suspensive appeal from a refusal to grant an injunction than there could be a suspensive appeal on the part of a plaintiff from a judgment of nonsuit. The doctrine advanced by the judge a quo, if sustained, leads simply to this: I own, for example, a piece of real estate valued at one hundred thousand dollars. A person styling himself a creditor sues out an order of seizure and sale upon an act importing a confession of judgment for fifty thousand dollars. I file my opposition, under oath, alleging that the act containing the privilege is forged. The judge, as in this instance, refuses to permit the sale of the property to be arrested. I apply to the Supreme Court in vain for the interposition of its appellate powers, and my property is finally sacrificed-, because a single judge has decided my oath to be untrue, and that, too, without ever having granted me a trial on the merits.
The purchaser at the sale would undoubtedly acquire a good title, because he would purchase at a sale ordered by a court of competent jurisdiction, in a case, too, in which this court had decided that the sale could not be arrested. I would thus be deprived of my property by the arbitrary refusal of the courts to grant me a trial in a case in which this privilege was expressly guaranteed to me by the constitution. I should be slow to believe that the law of Louisiana was in such a condition as this. If it is, my homestead may be sold at any moment, by the judge of my domicile without trial and without remedy. It is a principle of law which I fully recognize that the judges of the inferior courts ought not to be interfered with in the exercise of those powers which the law has confided to them; but it is also a principle of law, and one of graver import, that those tribunals can not exercise their powers in such a manner as to deprive this court of its appellate jurisdiction. When two principles come, to some .extent, in conflict, they must, if possible, be reconciled; if this can not be done, one of them must yield. I see no difficulty in reconciling the principles that are presented in this case; if I did, I should maintain the principle of the right of appeal above all others.