Hiriart v. Ballon — 34 U.S. 156

Majority — Story J.

p. 156

Sebastian Hiriart, plaintiff in error v. Jean Gassies Ballon.

Syllabus

Louisiana. The district court of the-United States for the eastern district of Louisiana, in conformity with the provisions of the act of congress of the 26th of May 3824, adopted, as a rule of practice in that court, the regulations established by* a law of Louisiana, by which, on appeal bonds, when the appellants failed ip their appeal, on the coming in of the decree or judgment' of the appellate court, a summary judgment on motion should be entered against principal and securities in the appeal bonds.

Under this rule, after the affirmance of a decree Of the district court by the supreme court of the United States, and thejillng of the mandate of the . supreme court; the district court, on a motidii for a rule on the security in an appeal bond to show cause why judgment should not be entered against him on the first day of the next term, and no cause being shown, entered a judgment against thé.seourity.

The party against whom the judgment was entered, afterwards came into court, and prayed a trial by jury, which was refused ; and he prosecuted this writ of erro> to reverse the judgment of the district court refusing the said triah

By the Court. The rule of the district court of Louisiana follows the analogy of the laws of- Louisiana, being modifiéd only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The sunimary judgment is therefore strictly authorized, and the party had no right”toatrial by jury. In becoming a security he submitted himself to be governed by the fixed rules which regulate the practice of the court. An appeal was taken in the same case to a decree of the district court dissolving an injunction. Although this appeal jvas riot before the court, the court said: the decree being only interlocutory, and not final, is not the subject of an appeal.

General rules for the government of the United' States court in the eastern district of Lousiana, in suit4 in. that court. [See note (a).1

IN error to the. district court of the United States for the eastern district of Louisiana,^[1]

p. 157

This case was submitted to the court by Mr Benton, for the .appellee, on a printed statement.

The appelleeinthiscase,whowas the plaintiff in the courtbe-low, instituted his suit in the district court of the United States for the eastern district of Louisiana, against one Pierre Oassies, and obtained a judgment, against him in the due course of law,

p. 158

for the sum of 3100-dollars, with interest at the rate of five per cent, from the 1st of December 1829, until paid, and costs of suit; from which judgment an appeal was taken to this court by said Pierre Gassies, who gave, as security to the appeal bond, the present appellant, in the penalty'of 4500 dollars, which appeal was h£ard in this court at January term 1832.

p. 159

6 Peters 761 . A judgment confirming the judgment below was rendered ; and upon said judgment and. mandate of this court in due course of proceeding, an execution issued against the property of said Pierre G assies. After various proceedings liad relative thereto, the marshal of the said district made his return in said case, that the sum of 375 dollars and 50 cents.

p. 160

alone had been made from the property and estate of said Pierre Gassies; for which sum a credit was given upon the execution the 31st of January 1833.

Upon the 13th of April .1833, a motion was made in the district court, that Sebastian Hiriart,. the appellant, show cause on-the first day of' next term, why judgment should not *be

p. 161

entered against him, for the amount of the judgment, damages, interest and costs ; and why execution should not issue against him. At the proper time the said appellant filed, his answer; and after argument, &c., judgment was given .against the-appellant, upon said appeal bond; and the appellant prosecuted this appeal. Execution issued upon this judgment on the 1st

p. 162

of.July 1833, and was levied upon bis property,, but the sale of it was stayed by an injunction issued by the judge of said district court, upon the 27th of July 1833. On the 28th of December 1.833, the said injunction was dissolved, from which dissolution of the injunction the appellant prayed an appeal to thi's court.

The district judge refused to allow this writ of error, assigning for-the same the. following íeasons.

p. 163

“ The act of congress forbids any writ of error or to be taken, except from a final judgment. The supreme court of the United States, in the case of Western et al. v. The City Council of Charleston, % Peters- 449, have given a judicial definition of this word c final,’ It is there said ‘ the word- final must be understood,,in the section undér .consideration, as applying to all judgments and decrees which determine the particular causé.’ That is, as I understand it, only such judgments as conclude the rights of the party can be considered final in the sense of the law.

p. 164

“In the.cáse under consideration, the rights of the party-complainant, as to his liability to pay this debt (for that was his own' stipulation in case the principal did not), were passed upon at- the time the judgment below was affirmed, and at all events, when judgment was given against him on the rule to show cause as above referred to, then perhaps he might have de- - feáted the obligation by the plea ‘ non est factum’ or some other ; but the dispute now is merely as to the remedy sought - to enforce a right already determined by both courts.

“ In the case of Young v. ‘Grundy, 6 Cranch 51 , it is said, ‘an appeal does not lie from an interlocutory decree dissolving an injunction.’ And in • Gibbons v. Ogden, 6 Wheaton 448 , the court say, ‘ nor from a decree affirming a decretal order of an inferior court refusing to dissolve an injunction.’

“I am aware that the technical expression, ‘interlocutory judgment,’ is usually applied to incidental orders, made in the progress of a cause, not affecting the main question to be aftér- . wards determined by the court; but all incidental orders are ‘interlocutory,’ whether they be made pending or after the determination of the main question, and these orders may be made so long as the case is within the control of the court, and all cases are within the control of the court until its judgment is fully executed. When an injunction is obtained suspending an execution, the object is not to bring the judgment itself into' review, but to inquire whether an improper attempt is made to enforce it.

“ Injunctions are grantable at chambers. Now it will not be preteudéd that a verbal refusal of a judge to grant an injunction would sustain an.appeal; but if he should, through inadvertence, grant it, when no equity appeared on. the face of the petition, or on further examination it should be found to be unfounded, and he should then refuse to perpetuate'it, what difference is there in reason, why a refusal to make it operative, after a full investigation of its merits, should give the party any more right to appeal, thaii his refusal in the first instance 1

“It may be said that when a dispute arises as to the right of .a party to appeal, the case ought to be sent up to the appellate , court for its determination as to that right. To this there are two answers : 4. Where the law itself has fixed the amount from, which an appeal can be taken, and that amount is palpa

p. 165

bly below the sum so fixed; or when the appellate court lias given a construction to the law embracing the. right of a party to appeal, in a given case, as .1 conceive has been done in cases similar to this, it would be treating the court with disrespect to send to it a case, of which, according to settled law, it could not take cognizance. ■ “ 2. However much I am disposed to have my decisions reviewed, yet I am as much bound to guard the rights of one party, as the other; and when my judgment is convinced that the law does not authorise an appeal,.and which if granted would operate injuriously to the other party, I feel bound to refuse it. Besides if this party has a right to appeal upon the ground stated, his security in the appeal bond, in .case of his insolvency, would'have the same right, on mak- • ■ing a sufficient oath, to obtain an injunction, and so on ad infinitum.”

After the order to dissolve the injunction, the plaintiff below took out an alias execution against the property of Sebastian. Hiriart, the prior execution having been returned into court.

On the 12th.of April .1834, Mr Slidell, counsel for Hiriart, obtained, on motion* añ order that the defendant, Jean Gassies Ballon, show cause, on Monday, the 14th iiistant, at 11 o’clock, A. M., why the execution issued in this case should not be 'quashed, and all further proceedings on the judgment, rendered in this case, suspended on the ground that the supreme court lias .accorded a writ of error which had been refused by this court before the execiition issued.

And ou the 14th of the same month, the following order was made. The rule taken by the plaintiff on the defendant came on this day before the court, when, no opposition being made by the counsel for the defendant, it is ordered that the same be made absolute, on condition that’the plaintiff .enter into bond, with good and sufficient sureties, to respond to the judgment enjoined against.by the plaintiff.

The questions submitted to the court, on the part of the defendant in error,'are: whether there be error in the proceedings of the district court of Lousiana in the refusal of the writ of error; and whether the judgment and decree of the said court, ought not to be confirmed with damages; the present application being madé for delay only.

delivered the opinion of the Court.

This is a writ of error to the district court Of the eastern district ofLouisian a. The plaintiff in error was surety in an appeal bond given upon a writ of error to a.judgment of the district court of Louisiana, rendered in 1830, in the suit of Jean Gassies ‘Ballon v. Pierre Gassies ¡’which judgment was affirmed in the supreme court of the United States in 1832. Upon the cause coming back to the district court, upon the mandate of the supreme court, execution issued against the judgment debtor, Pierre Gassies, and was returned satisfied in part. Upon motion afterwards made, and due notice to Hiriart, a summary judgment was entered against him upon the appeal bond ; in pursuance of a rule of the district court. The rule is in the following. wTords : “ in all cases of affirmance of judgment, on writs of error, from judgments pronounced in this court; a rule may be taken on.the principal, and his sureties in the appeal bond, returnable ten days after recording the mandate of the supreme court,, to show cause why execution should not issue against them; and no cause being shown, judgment shall be entered against them and the principal, and execution issue accordingly.” Hiriart showed for cause, (among other tilings, •not necessary to be stated, as they are not cognizable on a writ of error) that the proceeding was irregular, and that if liable' on the bond, his liability must be established by an ordinary action, before a competent tribunal. The district court, notwithstanding, entered the sunynary judgment; and the.-writ' of error is taken to this judgment.

Theprincioal point relied oirseems to be-that the party was entitled to a trial by jury; and that no such summary judgment is authorized by law. Whether this objection is well founded depends upon the act of congress of the 26th of May 1824, for the regulation-of (lie practice of the district court of Louisiana. That act declares, that the mode of proceeding in civil causes in the courts of the United States in Louisiana, shall be conformable to the laws directing the mode of practice in the district courts of the states; with a power in the judge, to make rules to adapt such laws of-procedure to the organization of the courts of the United States. The laws of Louisiana allow appeals from the district courts of the state, to the supreme court, upon givingan appeal bond with seeuri

p. 167

ty; and' authorize a summary judgment upon such appeal bond, upon mere motion in the court from whence the appeal was taken, in execution of the judgment of the appellate court,^[1] The rule of the district court of Louisiana, therefore, follows the analogy of the laws of Louisiana, being modified only so far as is proper to suit the organization of the courts of the United States, and to conform to the laws thereof. The summary'judgment, therefore, was strictly authorized; and the party appellant had no right to a trial by jury. ’ In becoming a security he submitted himself to be governed by the fixeid rules which regulate the practice of the court. The judgment is affirmed with damages at the rate of six per-cent, and costs.

It may be added, to prevent misapprehension; that there is also in the same record, an appeal taken to a decree of the district court, dissolving an injunction to the judgment granted upon a petition in .the nature of a bill in equity. This appeal is not before us : and the decree being only interlocutory, and not a final decree, it is not the subject, of an appeal.

.This cause came on to be heard- on the transcript of the record from the district court of the United States, for the eastern district of Louisiana, and was argued by counsel; on consideration whereof, it is adjudged and ordered by this court, that the judgment of the said district court in-this cause be, and the same is hereby affirmed with costs and damages at the rate of six per centum per annum. •

(a) (a) See Code of Procedure of Louisiana, art, 570, 573,575, 579, 596, 597.

Cases cited

Young v. Grundy 6 Cranch 51 SCOTUS p. 164