HIRIART v. BALLON

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

The appellee in this case, who was the plaintiff in the court below, instituted his suit in the district court of the United States for the eastern district of Louisiana, against one Pierre Gassies, and obtained a judgment against him in the due course of law, 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 heard in this court at January term 1832. 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 Gassies. After various proceedings had relative thereto, the marshal of the said district made his return in said case, that the sum of 375 dollars and 50 cents 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 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 of July 1833, and was levied upon his 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 1833, the said injunction was dissolved, from which dissolution of the injunction the appellant prayed an appeal to this court.

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

"The act of congress forbids any writ of error or appeal 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, 2 Peters 449, have given a judicial definition of this word `final.' It is there said `the word final must be understood, in the section under consideration, as applying to all judgments and decrees which determine the particular cause.' 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.

"In the case 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 defeated 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 afterwards 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 pretended 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, than his refusal in the first instance?

"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: 1. Where the law itself has fixed the amount from which an appeal can be taken, and that amount is palpably below the sum so fixed; or when the appellate court has given a construction to the law embracing the right of a party to appeal, in a given case, as I 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 making 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, an order that the defendant, Jean Gassies Ballon, show cause, on Monday, the 14th instant, 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 has accorded a writ of error which had been refused by this court before the execution issued.

And on 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 Louisiana 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 made for delay only.