50 La. Ann. 409 | La. | 1897
On Rehearing.
The opinion of the court was delivered by
The relator applies for the writs of certiorari and prohibition to protect his asserted right to the judgment in his favor, rendered by the Circuit Court of Appeals for the Second Circuit, which he claims had become final and was illegally set aside by the subsequent judgment of that court.
It appears that at the term of the Court ol Appeals for Second Circuit, of January, 1897, judgment was rendered in relator’s favor on his appeal from the judgment of the District Court in favor of the Alexandria & St. Louis Railway Company; that in due time the Company applied for a rehearing, on which the court took no action before the expiration of the term; thereupon the parties to the suit through their counsel agreed that the court might pass on the rehearing within fifteen days thereafter; the judges failed to agree, and on the 16th February, the sixteenth day from the date of the agreement, the judges made the order that being unable to agree, the application for the rehearing be continued to the next regular term, beginning third Monday of May, 1897, at which term the judges designated an attorney to aid them in the decision, and, thereafter, the court thus constituted rendered judgment reversing that previously rendered.
In this condition, the relator, plaintiff in the suit, made the present application to this court for relief against that which he conceives to be the illegal action of the Circuit Court in reversing its first judgment. His contention is, that the first judgment became final in ten days after the adjournment of the court, notwithstanding the application for the rehearing then pending, and the relator supposes his contention supported by the Act No. 100 of 1896, which makes judgments in the Courts of Appeal final from and after adjournment of the term at which they are rendered,
In our view, no such construction can be placed on the Act No. 100 of 1896. It did not intend to inflict the penalty on the litigant of deprivation of any rehearing because the judges failed to act on his application. They should act within ten days from the adjournment, but if they do not, or, as in this case, are unable to agree, the litigant’s application for a rehearing must be disposed of at the ensuing term. No action upon his application for a rehearing, instead of defeating it, in our view, action on the appiication could be enforced by mandamus. In our view, the decision of our predecessors that the litigant was not deprived of the benefit of his rule for new trial, seasonably taken, because of the adjournment of the court without acting on the rule, is quite applicable here. Under the Code of Practice the litigant is allowed his rule for new trial, if taken within three judicial days from the rendition of the judgment. Another article requires all judgments to be signed at the expiration of three days from the rendition, and, by an amendment, applications for new trial were required to be determined and all judgments to be signed before the adjournment of the court; whether or not three judicial days had elapsed. It was held under these articles of the Code of Practice, as amended, the litigant’s rule for anew trial was not defeated by the adjournment of the court without determining the rule. State ex rel. Allen & Syme vs. Judge, 35 An. 1104. Obviously, on principle and authority the litigant
It is therefore ordered, adjudged and. decreed that our previous order on this application for the writ? of certiorari and prohibition be set aside and annulled, and it is now ordered and adjudged that the relator’s application be refused at his cost.
