(99 South. 411)
No. 26218.
BARKETT v. BOOTH et al. In re BOOTH.
(Jan. 7, 1924.
Rehearing Denied by the Whole Court March 3, 1924.)
(Syllabus by Editorial Staff.)
Certiorari &wkey;>5(l) — Proceeding by certiorari or writ of review not intended to serve as remedy by appeal.
Where, in a suit to enjoin a sale of plaintiff’s property on execution of a judgment recovered against a third person, plaintiff proved that he was not the individual who had been cited in the original suit and against whom judgment had been obtained, and there was no question of law nor irregularity in the proceedings, defendant could not maintain certiorari, or writ of review, since such proceedings were not intended to serve as a remedy by appeal.
Certiorari’ to Court of Appeal, Parish of Caddo.
Suit by Willie Barkett against Harry Y. Booth and others. Decree for plaintiff was affirmed by the Court of Appeal, and defendants apply for writs of certiorari and review.
Writ x’eealled, and relief denied.
Caffery & Dorman, of Shreveport, for applicants.
Edw. Barnett, of Shreveport, for respondent.
By Division A, composed of O’NIELL, C. J., and ROGERS and BRUNOT, JJ.
O’NIELL, C. J.
The question decided by the district court and by the Court of Appeal, • in this case, was a question of fact. Therefore it was a mistake on our part to order the case up. It is an injunction suit, in which the plaintiff, Willie Barkett, prevented a sale of his property seized in execution of a judgment that had been rendered by default against one William E. Barkett. Willie Barkett contended, and proved to the satisfaction of both courts, that he was not the individual who had been cited in the original suit, and against whom the judgment had been obtained by default. There is no question of law in the case, no irregularity in the proceedings, and no rea-' son for our taking issue with the two courts that have decided the question of fact. The proceeding by certiorari or writ of x’eview to the Court of Appeal was not intended to serve as a remedy 'by appeal.
The writ issued herein Is recalled, and the relief sought is denied, at applicant’s cost.
Rehearing refused by the WHOLE COURT.