On an application for a writ of prohibition.* By the court:
On the 20th of June, 1850, a judgment for $1000 was rendered by the First District Court, against James Cassidy, as the surety of Charles Ford, on a bond conditioned for his appeai'ance before the court to answer a charge of larceny preferred against him by the district attorney, in that court. Ten days’ notice of the judgment was given to him, in pursuance of the act of the 11th of March, 1837 ; he did not cause it to be set aside for any of the reasons or by the means specified in the act, and on the 2d of July, 1850, the judgment was signed. Sometime afterwards, though the date does not appear, execution was issued against him upon the judgment, and the sheriff, under the directions of the district attorney, proceeded to seize his property. On the 28th of April, 1851, and we suppose sometime after the execution was issued, he took an appeal from the judgment.
It appears, moreover, by his petition to this court, for a writ of prohibition against the execution of the judgment, that he obtained an injunction against the further execution of the judgment. The injunction was dissolved, and he took a suspensive appeal from the judgment by which it was dissolved. He then applied to the district court for an order to restrain the sheriff from shutting up the house he had seized, on account of the appeals he had taken in the case. The district court refused to grant the application, on the ground, that the appeal from the judgment of forfeiture of his bond, was a devolutive, and not a suspensive appeal. He now applies to this court for a writ of prohibition, to restrain the district court and sheriff from proceeding under the execution.
The applicant has placed before us, the record of the appeal from the judgment of forfeiture before us, by which the dates appear; and that judgment was rendered the 20th of June, 1850, and that the appeal was taken only on the 28th of April, 1851. The date of the execution does not appear, but we presume it was long after the notice of judgment. The appeal was devolutive, and not suspensive, because taken more than ten days after the judgment and notice of the same.
It is urged, however, by the applicant, that a copy of the judgment, after being signed, should have been served upon him. The third section of the act of the 11th of March, 1837, prescribes, that it shall be the duty of the clerks of the several district courts out of the city of New Orleans, and of the criminal court, to issue notices of such judgments to the parties concerned, as in ordinary civil cases, and on service and return thereof, after the usual delay, to issue executions on all such judgments, which it is made the duty of the several sheriffs throughout the State, to execute without delay.” Bullard and Curry’s Dig. 281-2.
A notice was issued by the clerk, stating that, on a certain day, the party to the appearance bond Was called, but failed to appear; that the surety was called upon to produce him, but failed to do so; that the bond was thereupon forfeited, and judgment entered against the surety for a thousand dollars. This is the
After this notice of the judgment, there were various means and reasons, specified in the 1st and 2d sections of the act, for which it might be set aside, on application within ten days, and if the party was not possessed of any of these means of relief, or did not resort to them, it has been understood, especially since the allowance of appeals in criminal cases, that he might seek relief, within those ten days, by a suspensive appeal; but that if the appeal was not taken within the ten days, it would be only a devolutive appeal. If he had made a formal application to set aside the judgment within the ten days, no doubt ten additional days would have been allowed to appeal, after it was overruled. This is a reasonable construction of the law, especially as promptness in the disposition of criminal eases, and matters cohnected with them, is so indispensable to the welfare of society.
The suit for an injunction, the judgment disallowing it, and the appeal from that judgment, are not before us, and we cannot say, therefore, that those proceedings justify the application for a prohibition. The injunction could only maintain things in statu quo, until its final determination. Now, it does not appear by the petition for a writ of prohibition, that the sheriff was about to sell the property seized before the final disposition of the injunction suit, but merely that he was about to close up the house seized, which he might do for the purpose of keeping and preserving it under his seizure, until the injunction suit should be finally terminated. We could not legally restrain him from doing so, as he is accountable for the proper preservation of the things seized by him.
In the record of appeal from the judgment of forfeiture, we have examined the assignments of errors, and, as at present advised, do not think them well founded. This is an additional reason for refusing to grant a writ of prohibition, though we will not express a positive opinion on the appeal, until it is regularly tried.
The application for a writ of prohibition, is therefore dismissed, at the costs of the applicant.
*.
Eustis, C. J., was absent when the application for a writ of prohibition was before the court.