Jarreau v. Choppin

6 La. 130 | La. | 1834

Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from the refusal of the district eourt, who iefused, on his suggestion, that the judge of the court, and that of the parish in which it was holden, had been employed as counsel in the case, to order a trial of it by the judge of one of the adjoining districts.

in caso the whom the cause is pending, is incompetent to try it, and the right t0 ,trial. a$e”™dánappeaí taken?0"1mayh°

The defendant and appellee has prayed for the dismissal of the appeal, because the decision appealed from, is not a definitive judgment but a mere interlocutory one, which works no injury irreparable by appeal from the final judgment.

It is clear, that as the district judge before whom the the action is pending, cannot give a final judgment in this case, if the plaintiff has the right to have it tried by another judge , , 5 and that right is erroneously denied him, this denial works ° J , 7 against him an injury which no final judgment in the cause can repair, since no final judgment can be given therein, till the decision of the district court be revoked by this. We, therefore, think the appeal was properly taken.

On the merits, the appellant has relied on several acts of the legislature, viz. 1813,34; 1814, 74; 1817,42; 1822,84; 1824, 8; 1825, 12; 1831, 100; extra sessions of that year, 12; 1833, 93; and the Code of Practice, 128 and 342; and Code, 17 and 18.

The sole question presented for solution to this court, is whether the district court erred in overruling the motion of the plaihtiff’s counsel, for an order of reference of the case to the jud^e of one of the adjoining districts, it appearing that both the district judge before whom the case was pending, and the judge of the parish in which the court was sitting, had been employed and consulted therein.

This motion was grounded on the first section of an act passed in 1822, page 84. This motion was opposed on the ground that the provision in this section had been repealed, a different one having been made by the first section of the act of 1824, page 122, which orders a reference of the case to the parish judge.

The counsel of the appellant relies on our Ciml Code, 17 and 18, which provides that “ laws in pari materia, or upon the same subject, must be construed with a reference to each other. What is clear in one statute, may be called Jn aid, to explain what is doubtful in another;” and that, “ the most universal and the most effectual way of discover-the true meaning of a law, where its expressions are dubious, is by considering the reason and spirit of it or the cause which induced the legislature to enact it.”

the judges1are're-repeals “he Both section of the act of 1813, which dircctedthe transwhicifthe district iUadcfted'toStry,Ctó ndghSingdistnot' Tho 1st section of the act of1824, gisiuture ‘'order trtodCbySthe°par! the^lsumction'of amending tho set veral acts to or-granite tho courts,

This part of the Code would be applicable, if the expressions of the act of 1824 were dubious, or did not present the true meaning of the legislature: but this is not pretended.

If there was a need of construction in order to ascertain whether the act of 1824 was intended to present a cumulative, rather than a new provision, we would think that the mischief was, that a district judge under the act of 1822, was compelled to travel to another parish, while his services were required by suitors in that of his own district; that a choice was to be made between two distinct judges, whether the selection might offer a cause of complaint to one of the litigants; the legislature, therefore, applied a remedy to this mischief, by exempting district judges from being called on to travel out of their districts, and abolishing the selection.

A law must be expressly or impliedly repealed. Civil Code, 23. It is impliedly so, when the new law contains provisions contrary to, or irreconcilable with the former one.

^hus the act 1824, was a repeal of the thirtieth section °f the act of 1813, which directed the transfer of a cause which a district judge was incapacitated to try, to the court ™ .... , , oi a neighboring district. Ihe new act requiring that the 1 ° ju<^Se °t a neighboring district should come and try the cause in the court in which it had been instituted. The provision that the judge should come into the district being contrary to, and irreconcilable with the former, which required the transfer of the cause to the district of the judge who was to try it. The new provision being imperative, could not be said to be cumulative only, soas to authorise a transfer, ad libitum, to it or to the former. 7 7

So the provision of the act of 1822 being inconsistent, contrary to, and irreconcilable with that of the act of 1824, in which the legislature orders the cause to be tried by the parish judge, the provisions of the former act, must be considered as _ repealed.

jnlge8” "legally called on to try a cause in the district C0Uft, lie is a district judge, ad hoc, and exei'. cises the power-of a district court. ofThe 342cWrh Practice, »pth^ck/of tfew0rleans‘ The law of 1822, as to the trial of causes, cd^io^rovTnt tS wiS'Linappuca- The judgo boÍZI originated! t“hed both^incapacitat- “ casus «missus, & remediable by %¡¡¡y Hilatura

Expressio unius est exclusio alterius. When the legisla1 a ture expresses its will, that a cause shall be tried by a parish judge, it intimates forcibly its will, that its former provision that the district judge shall try it is to be superseded.

It would have been different if the latter act had merely authorised or permitted the parish judge to try the cause; thus he and the district judge would have had concurrent powers. But the last act is imperious and requires the cause to be tried by the parish judge.

Lastly, the counsel of the appellant has referred us to the Code of Practice, 128, 342.

The 128th article contains the jurisdiction of parish . . _ courts, but where a parish íudge is legally called on to try a 5 r J o o J J cause in the district court, he is a district íudge ad hoc, and ' ** ° exercises the power of a district court.

The article 342 is applicable only to courts sitting in the city of New-Orleans, where the district and parish courts have in several cases, concurrent jurisdiction. It is not pretended that in the parish of Point Coupée, in which the present action originated, there are courts of concurrent jurisdiction.

The Code of Practice, as to the disposal of causes, in which the judge is recused refers us to anterior laws.

In the acts of the legislature posterior to that code, the provision which appears is applicable to the present case.

As we are of opinion that the act of 1824 repeals that of 1822, it follows that the latter cannot be referred to in order to prevent a failure, or rather delay of justice, in cases in which the act of 1824, cannot be referred to. The judge before whom the cause originated, and that whom the law calls in his stead, being both incapacitated from acting, the appellant is precisely in the same situation, in which a suitor would have been, under the act of 1822, if the judge of his own and that of the two neighboring districts, had been incapacitated.' His would then be a casus omissus in the law and remediable by the legislature only.

It . is therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.