State ex rel. Honey Island Land & Timber Co. v. King

Citations

• 110 La. 961
• 35 So. 181
• 1903 La. LEXIS 732

Syllabus

<p>SEQUESTRATION — POSSESSION OF SHERIFF-OCCUPATION BY THIRD PARTY — INJUNCTION — SUSPENSIVE APPEAL.</p> <p>1. Certain real estate was in possession of a sheriff under an order of sequestration. During the temporary absence of the sheriff therefrom, a person entered upon and took physical occupancy of the premises. The sheriff, returning, ordered him to vacate, whereupon he obtained a preliminary injunction commanding the sheriff not to interfere with his possession. The party in whose behalf the order of sequestration had issued not being made a party to the proceedings by the plaintiff in injunction, he, with leave of court, made himself a party, and prayed for the dissolution of the injunction. The plaintiff excepted to this action, but the court overruled the exception, and dissolved the preliminary injunction on the ground that the plaintiff’s occupancy was subsequent to that of the sheriff, and had not lasted for a year, and that the title upon which the right of occupancy was predicated was also of a date later than the order of sequestration. Code Prac. art. 298, par. 5.</p> <p>Plaintiff applied for a suspensive appeal from this judgment, which being refused he applied to the Supreme Court to mandamus the district judge to grant such appeal.</p> <p>The judge properly refused the suspensive appeal, the effect of granting which would have been to oust the sheriff from his custody of the property and to change the possession of the same during the suit. The party in whose behalf the order of sequestration issued should have been made a codefendant in injunction “ab initio,” and he had a legal right, on being ignored, to make himself a party defendant, and pray for the dissolution of the injunction. In doing so his position was not aggressive, but defensive. See Lake Bisteneau Lumber Co. v. Sheriff, 22 South. 730, 49 La. Ann. 1291.</p> <p>2. “Physical occupancy” of property and “legal possession” of the same are not necessarily identical. A person may be in lega