38 La. Ann. 499 | La. | 1886
The opinion of the Court was delivered by
This is an application for a mandamus to compel the district judge to try summarily a suit brought by the relatrix bank to eject a tenant from a plantation.
The judge returns, admitting his refusal to proceed in a summary manner, for the reason that the relatrix has resorted to the ordinary process and that the defendant, even then, was entitled to the usual delays before the case could legally be fixed, which delays were not given before the fixing.
The plaintiff in the ejectment suit prayed that the defendant, Lid-dell, be cited. The citation issued on the 2d of March, ult, allowing eleven days to defend. It was served on the following day. On the 11th, the court fixed the case for trial on the 15th, at a stated hour.
The defendant then opposed the trial because the proceeding was one via ordinaria, and because the case was prematurely fixed.
It cannot be claimed that the plaintiff converted this case (which the law declares shall bo tried in a summary way) into an ordinary one, because she aslced for citation against the defendant.
The very law which provides for a summary trial, directs that the defendant shall be cited. R. S. 2155, 2156; see also, R. C. C. 2718. .
It was in strict compliance with that law that citation was asked and issued.
We have no concern with the correctness of the proceeding in fixing the case before the expiration of the delay allowed by the citation to appear and defend the suit.
The judge refused to try the suit as a summary case, because it had been converted into an ordinary one, and the object of the present proceeding is to compel him to try it summarily.
Having reached the conclusion that the plaintiff, by asking that the defendant be cited, has not altered the character of the suit, it is the clear dutv of the district judge to hear and determine it as eueh.
The remedy sought is appropriate. 34 Ann. 1178; 32 Ann. 543, 597, 774; High on Ex. Rem. §§ 151, 250.
It is therefore ordered that the alternative mandamus herein issued be made peremptory, as prayed for.
