Osgood v. Black

33 La. Ann. 493 | La. | 1881

Lead Opinion

On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The defendants and appellees claim that the appeal herein taken should be dismissed for the following reasons :

First — This Court has no jurisdiction over the case;

Second — The appeal was not made returnable within ten days as it should have been, the suit involving a right of office;

Third — The order appealed from does not work an irreparable injury.

The plaintiff asserts the valuable privilege of exercising, under a commission from the Executive, the functions of a branch pilot of the port of New Orleans; that the defendants exercise similar functions without authority and in violation of penal laws; that they have already inflicted severe damages upon him, which he estimates at $1500; and that they will continue to injure him unless they be enjoined. .He accordingly prays for a money judgment, for a preliminary, and in due course for a perpetual, injunction. On a bond of $500 furnished by the plaintiff, a preliminary injunction was by order of the court duly issued and served. Subsequently, on motion of the defendants, the injunction was ordered to be dissolved, on taeir furnishing a bond for $1500. Before the bond was given, the plaintiff sought and obtained a suspensive appeal from the dissolving order.

The caséis appealable. We therefore have jurisdiction over it.

The main issue which the motion to dismiss presents simply is: Whether an appeal lies from the dissolving order. To solve the question we must test the validity of the order.

From whatever standpoint the matter be viewed, it is manifest that the motion must prevail.

In the first place the plaintiff has no standing in court, solitary and alone as he is, to inquire into the rights and pretensions of the defendants, whom he formally charges with usurpation of, and intrusion into, a public office.

If such be the fact, it is a matter in which the community, the State, is concerned, and which can be brought to the knowledge and attention of courts by the State only; either in a civil action, on her own motion, or at the instance of a party interested, or in a criminal proceeding on the complaint of some citizen.

R. S. 2593, 2595, 2596, 2597; Act of 1877, No. 63, p. 103; State ex rel. Ford vs. Miltenberger.

The State is no party plaintiff in any shape in this suit. What, then, is the authority of the plaintiff to prefer the charges which he has propounded and to demand the relief which he seeks ?

Commissioned officers of the class to which plaintiff claims to belong, have no warrant on their own suggestion, themselves to draw in question the rights or pretensions oí parties represented as claiming to be like officers and charged with usurpation of and intrusion into office. The law provides for the mode in which such matters can be investigated and affords adequate remedy.

The unwarranted use of the exclusive prerogatvies of the State by individuals for their personal benefit, cannot be tolerated in any form. 8 An. 388; 5 Kans. 518. In the next place, the plaintiff has not averred a state of facts from which it can be inferred that he will sustain irreparable injury in case the defendants be not enjoined from continuing, and do persist, in their alleged wrongful acts. Had he done so, however, the averment would not have been binding on the court. O. B. 53, 394, 546. It would not have been entitled to any consideration, for the obvious reason that the plaintiff has himself placed an evaluation of $1500 on the damages, or inj ury, said to have been occasioned by the defendants and sustained by him at the filing of the petition. If the acts apprehended be committed, they would be similar to those already assessed by the plaintiff, and likewise would be susceptible of appreciation and atonement, in dollars and cents. The injury then would be reparable.

As the plaintiff has no standing in court for an injunction, none should have issued.

The case is one in which the defendants might, on the face of the petition, have successfully asked for an unconditional dissolution of the writ. The court, therefore, could have set the remedy aside without requiring a bond as a condition precedent. It did not, therefore, err in dissolving it as was done. If it did, it was an error of which the defendants, but not the plaintiff, could have complained. 2 An. 321; 4 An. 147; 14 An. 57; 28 An. 649; O. B. 53, f. 394, 546, and case No. 8111 in this Court.

As the dissolving order was valid, no appeal could be taken from it

It is, therefore, ordered that the motion be sustained, and that the appeal be dismissed with costs.

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Rehearing

On the Application sob a Rehearing.

Todd, J.

By our former decree the appeal, which was taken from an order authorizing the dissolution of the injunction sued out by the plaintiff, on bond, was dismissed.

The motion for dismissal was on the ground that the interlocutory order appealed from did not work an irreparable injury, and that, therefore, no appeal would lie from 'it. We held that the dissolving the injunction on bond would not work an irreparable injury, and dismissed the appeal. We adhere to our former decree, but, inasmuch as the appellant’s counsel contends that in our reasons for the decree, we prematurely decided questions pertaining to the merits of the ease and to his right of action, we take occasion to sa# that in reviewing our previous opinion, we want it understood that we rest our dismissal of the appeal solely on the ground that the order appealed from could not work an irreparable injury, and if anything in that opinion goes beyond this and would seem to deny or question the appellant’s right of action or standing in court, or to pass upon anything pertaining to the merits of the case, the same may be considered as obiter, and the case goes back to the lower court with every issue presented by the petition or pleadings still open for determination therein.

Rehearing refused.