Opinion
No. 31952.
February 26, 1934. Rehearing Denied March 26, 1934.
Appeal from Twenty-Fifth Judicial District Court, Parish of St. Bernard; J.C. Meraux, Judge.
Suit by Alexandro Palama against Philip R. Livaudais and another, wherein Harvey E. Roberts intervened. From a judgment, on a rule nisi, in favor of the intervener, making the rule absolute and granting the intervener a preliminary injunction, the plaintiff appeals devolutively.
Judgment affirmed.
Charles A. Palermo, George J. Gulotta, and Arthur Landry, all of New Orleans, for appellant Palama.
Prowell, McBride Ray, of New Orleans, and Welton P. Mouton, of Lafayette, for appellee Roberts.
This is a devolutive appeal, by the plaintiff, taken under the provisions of section 5 of Act No. 29 of 1924, from a judgment, on a rule nisi, in favor of the intervener, making the rule absolute and granting the intervener a preliminary injunction, enjoining the sale, under foreclosure proceedings, of lots 6 to 15, both inclusive, of square 57, Paris Court subdivision, in the parish of St. Bernard, La.
The sole question at issue on the trial of the rule was whether or not a preliminary injunction should issue. It is the approved rule that the granting or refusing of a preliminary injunction is merely an interlocutory judgment designed to preserve the existing status pending a trial of the issues on the merits of the case, and therefore the question is one which is addressed to the sound discretion of the trial judge. The facts disclosed by the pleadings, the evidence, and the admissions of record are correctly stated in appellee's brief, as follows:
"Prior to March 16th, 1929, Alexandro Palama was the record owner of a real estate subdivision in the Parish of St. Bernard, in close proximity to the City of New Orleans, known as `Battle Ground Subdivision.' or `Paris Court Subdivision.' * * * On March 16th, 1929, Palama sold * * * the said subdivision comprising ten (10) acres to Philip R. Livaudais and Daniel Cazzetta for the sum of $31,500.00, $7,500.00 cash, and for the remainder of the purchase price, Livaudais and Cazzetta subscribed three (3) promissory notes, each in the sum of $8,000.00 payable on or before one, two and three years after date. Harvey E. Roberts, * * * under the `bond for deed' arrangement, * * * agreed to purchase * * * fourteen (14) lots numbered 6 to 19, both inclusive, of the property facing Paris Road, in the Parish of St. Bernard, then known as the `Palama property,' for the sum of Five Thousand Two Hundred Dollars ($5,200.00), $2,500.00 cash, and the balance of $2,700.00 in three equal annual installments on or before one, two and three years. * * *
"Roberts paid Livaudais and Cazzetta the full amount of the purchase price of his lots with interest, with the exception of the last payment totalling $900.00, paid by Roberts direct to A. Palama on November 19th, 1931," etc.
It is shown that the plaintiff had knowledge of all of the details of the purchase by Roberts from Livaudais and Cazzetta, and that he received the full purchase price, for the fourteen lots described in the bond for deed, including the accrued interest on the credit portion of the purchase price of said lots. It is shown that Livaudais and Cazzetta, by act passed before George J. Cullotta, conveyed to Roberts four of said lots, numbered 16, 17, 18, and 19, and that plaintiff joined in said act for the purpose of releasing these lots from the effects of his general mortgage on the entire subdivision. It is shown that the plaintiff refused to release the ten lots involved in this proceeding from the effects of said general mortgage; that intervener is without remedy at law; and that a preliminary injunction is necessary to protect his rights in the premises pending a hearing of this case on the merits.
We think the equities are so strongly in favor of intervener that the trial judge exercised his judicial discretion wisely and in the interest of justice.
For these reasons, the judgment appealed from is affirmed, at appellant's cost.
ST. PAUL, J., absent.