delivered the opinion of the court.

This is an hypothecary action, in which the plaintiff was required to discuss property previously liable to his mortgage, in the possession of Dumartrait. A judgement in favor of Dumartrait by the District Court, in the case just acted on, proceedings were had in the present suit, the property seized in the possession of the defendant was ordered to be sold, and he appealed.

As the plaintiff did not acquiesce in the judgement of the District Court in favor of Dumartrait, but insisted on his right to have the property in the possession of the latter sold, ° i his proceedings in the present suit were premature.

*374Ife is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed; and the case remanded, with directions to the judge, not to proceed thereon until after the discussion of the property in the possession of Dumartrait, the appellee paying costs in this suit.