Mora v. Kuzac

21 La. Ann. 754 | La. | 1869

Taliaferro, J.

For an alleged illegal and vexatious seizure and advertisement of sale of the plaintiff's stock of merchandise by the defendant, acting as constable of the Second Justice of the Peace of New Orleans, and under color of a fieri facias issued on a judgment rendered by said second justice in a suit entitled H. Blaize & Co. v. Canales, the plaintiff sued out a writ of injunction staying the proceedings complained of, and praying against the seizing creditors, Maize & Co., judgment for one thousand dollars as damages. This injunction suit of the plaintiff was brought iu the Fourth District Court, the petitiou being filed on the tenth of February, 1868. The defendants excepted to the jurisdiction of the court, and the exception was sustained, the injunction dissolved and the suit dismissed.

From this judgment the plaintiff appeals.

This suit was commenced prior to the adoption of the present Constitution, and by the law in force at that time the Third District Court of New Orleans had exclusive jurisdiction of cases of this kind. For by the act approved March 29, 1865 (Acts of 1864 and 1865, p. 84, sec. 10), it was provided that in all cases where a party shall have cause to complain of any judgment by a justice of the peace, or act of any constable of a justice of the peace or his deputies, and shall think proper to apply to a higher court for relief, by writs of injunction, mandamus, sequestration, action of nullity, or otherwise, it shall, he to this court only that"he shall apply for relief.”

But it is contended on tbe part of tbe appellant that since tbe trial of tbe case in tbe court below, that court or its successor, tbe present Fourth District Court, has become vested with jurisdiction of tbe case, and tbe Third District Court or its successor deprived of all jurisdiction except that of appeals from justices of tbe peace, and therefore it would be vain to dismiss this suit.

We do not concur in this view of tbe case. Tbe institution of a suit in a court without jurisdiction is null, and tbe investiture of that court with jurisdiction at a subsequent period has no effect to cure that nullity. We think tbe suit was properly dismissed.

It is therefore ordered, adjudged and decreed that tbe judgment of tbe District Court be* affirmed, tbe appellant paying costs in both courts.