49 La. Ann. 1612 | La. | 1897
The opinion of the court was delivered by
The suit of Wirth vs. Jules Simno et al. is an ordinary suit upon a moneyed demand against the present relator for forty-four dollars. It is accompanied by no attachment or seizure and presents no feature of hardship calling for exceptional action at the present time in order to afford immediate needed relief with remedies which no court other than the Sup'reme Court could supply. The-suit is appealable to the District Court, and in due time the questions which relator seeks to have presently passed on through a writ, of prohibition from us can be reached and passed on by the District Court on appeal. There will be ample time and opportunity to have-recourse to this court against illegal action or usurpation (should such there will have been in the case) after the District Court shall have passed upon the issues sought to be now raised before us.
Relator, having excepted to the capacity of the acting judge and been overruled, can proceed with safety and without waiver under the benefit of that exception to take out all necessary commissions and go to trial.
The application falls under the rule announced in State ex rel. Keplinger vs. Justice, 48 An. 1348, and State ex rel. Rudy vs. Justice, 49 An. 1165.
For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the order which has heretofore been granted in this case be and the same is set aside, and it is now ordered, adjudged and decreed that the application of the relator for a writ of prohibition be and the same is hereby refused.