6 Rob. 92 | La. | 1843
This court, at its last October term, rendered a final judgment, affirming, with five per cent damages, one taken from the Seventh District, in a suit No. 495, of Taylor, Gardiner & Co. v. George W. Lovelace & Co. The heading of the opinion is : “ Appeal from the Court of the Ninth Judicial District, the.Judge of the Fifth presiding.” When this decree was presented to be recorded below, and a motion made in open court to have its execution ordered, it appears that the counsel for G. W. Lovelace & Co., opposed the motion, on the ground that this decree, purporting on its face to be rendered on an appeal from the Ninth District, could not be acted on by the court below, and rendered executory. The Judge
■ The Judge below properly disregarded the erroneous statement heading the decree of this court. It was not required by law, made no part of the judgment, and might have been omitted ; but after making an order for the execution of the decree of this court, he was clearly without any right or power to allow an appeal from it. In 11 La. 369, we said, that “ the functions of the District Court in relation to a mandate which has issued from this court to have a judgment executed, are merely ministerial. It cannot render any new judgment which would authorize, ór render an appeal necessary. Its duty is to obey the mandate. If it does not, the party obtaining the judgment, must seek its enforcement by an application for a mandamus; and the party against whom the judgment was rendered, if he thinks himself injured by the manner in which the execution is ordered, must seek relief by a supersedeas.” The Judge below, it is true, heard evidence fully to satisfy himself of the error, before he would make the mandate executory, but he had no judgment to render. The judgment of this court had settled all the controversy between the parlies, and his only province was to order the decree of the appellate court to be recorded on the minutes of his court, that it might be legally executed. Code of Practice, art. 619. As soon as this was done, the party in whose favor the judgment was rendered, had
It is, therefore, ordered that the appeal taken from the order of the Judge below, rendering the judgment of this court executory, be dismissed with costs ; and it is further ordered, that the judgment dissolving the injunction be affirmed, with costs in both courts.
Willson, J,, presided at this term of the District Court. The injunction was also granted by him. It was subsequently dissolved by C%rry, J., from whose decision this appeal was taken.