89 So. 882 | La. | 1921
Statement of the Case.
Relator is the proprietor of a public dance hall at Milneburg, in the city of New Orleans. The city council passed an ordinance, Commission Council Series No.
“Let the city of New Orleans, Hon. Andrew McShane, mayor of the city of New Orleans, Hon. Stanley Wray, commissioner, and 1-Ion. ■Guy Maloney, chief of police of the city of New Orleans, show cause, if any they have, on the 17th day of August, 1921, at 10:30 a. m., why the writs of injunction should not issue in accordance with law, and in the meantime let the city of New Orleans, 1-Ion. Andrew McShane, mayor of the city of New Orleans, 1-Ion. Stanley Wray, commissioner, and Hon. Guy Maloney, chief of police of the city of New Orleans, or any of their agents or employees, be restrained from in any way interfering or molesting the plaintiff herein in conducting or operating a public dance hall at Milneburg, in this.city.”
The rule nisi came up for trial before the .judge of division D of the civil district court, and upon motion of defendants, suggesting that the temporary restraining order was unauthorized by the laws of the state of Louisiana, and contrary to' law, the judge below annulled and recalled the same.
After the signing of the order recalling the temporary restraining order, the defendants filed an exception of no cause of action, directed against the petition, praying for the preliminary injunction. The judge a quo maintained this exception, and dismissed the application for the injunction. Relator then filed a petition, praying for a suspensive appeal. This appeal, he alleges, was refused by the trial judge. The trial judge, by -way of answer to this allegation, avers that he was willing to grant an appeal from the judgment maintaining the exception of no cause of action, but that relator desired a- suspensive appeal from the. order above quoted, recalling and annulling the restraining order, and that it was this petition of appeal which was denied.
Opinion.
Relator cites in support of his position, the case of State ex rel. Behan v. Judge Sixth District Court, 32 La. Ann. 1276. That was a case in which a writ of prohibition issued
For the reasons assigned, it is ordered, adjudged, and decreed that the rule nisi that issued herein be recalled, at the cost of relator.