Sebastian Hiriart, Plaintiff In Error v. Jean Gassies Ballon

• Decision Date: 01 January 1835
• Citation: 9 Pet. 156,34 U.S. 156,9 L.Ed. 85
• Parties: SEBASTIAN HIRIART, PLAINTIFF IN ERROR v. JEAN GASSIES BALLON
• Court: U.S. Supreme Court

34 U.S. 156

9 Pet. 156

9 L.Ed. 85

SEBASTIAN HIRIART, PLAINTIFF IN ERROR v. JEAN GASSIES BALLON.

January Term, 1835

IN error to the district court of the United States for the eastern district of Louisiana. (^a) 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.

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'Rule 10. If any docketed cause shall be called at two courts and not tried, the plaintiff shall be called, and if he does not immediately go to trial he shall be non suited, unless it shall appear that it had been continued at defendant's motion, or other satisfactory cause shall be shown to the court, on oath, to prove it was not postponed on account of the plaintiff's neglect, or unless the defendant, at such second calling, shall obtain a further continuance; but nothing in this rule shall be construed to prejudice defendant's right of calling for a non suit, at any previous court.

'Rule 11. If a cause is at issue, and either party move for a continuance of it on account of the absence of witness, such motion must be on oath or affirmation of the party, his agent or attorney, in writing, subscribed by him, stating that some witness, residing within the reach of the process of the court, (who shall be named and the place of his residence mentioned) is wanting; that he believes that such witness is a material and competent witness in the cause; and, to satisfy the court of his materiality, shall state what fact or facts it is expected or believed the witness will prove on the trial; that all reasonable endeavours have been used to procure his attendance at the term; that he cannot safely go to trial without the benefit of his testimony; and that a continuance is not prayed for the purpose of delay.

'If an application be made for a continuance, and also for a commission to procure evidence, (the other party not consenting thereto) the affidavit must state what fact or facts it is believe will be proven on the trial of the cause, that the testimony sought is competent and material, that he cannot safely go to trial without the benefit of it, that he believes it can be procured in a certain time, which shall be specified, and that the application is not made for

delay. If a commission issue, interrogatories must be filed, as directed in the following rule.

'Rule 12. The clerk is authorized, in vacation, on the written application of the plaintiff or his attorney, to enter the discontinuance of a cause, and with consent of counsel, written, signed, and put on file, to enter on the minutes, rules and orders, preparatory to trial of causes pending therein, and to issue commissions to take testimony in all cases, at the instance of either party, and if it be not the intention of the party taking out the commission to take testimony de bene esse under the thirtieth section of the judiciary act of 1789, he shall file interrogatories and serve a copy thereof on the opposite party or counsel, who may, if he thinks proper, add cross interrogatories, and return the whole to the other within three days, or, in default thereof, the commission may be executed without the cross interrogatories.

'Rule 13. No amendment shall be made to any petition or answer, unless it be made previous to setting the cause for trial (except as to mere matters of form, which may be made at any time before trial) and no amendment shall be made at any time, tending wholly to alter the nature of the action or defence. 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 and 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...