State ex rel. Marks v. Judge of the Third District Court, No. 7840

No. 7840 | La. | Mar 15, 1880

The opinion of the court was delivered by

Spencer, J.

John Marks, the relator, brought suit in the Third District Court of Orleans to compel L. B. Cain, his agent, to render an account, and to compel him to surrender relator’s property held as agent, and to enjoin him from longer acting as agent, his power of attorney having been revoked.

Marks alleges that he is a citizen and resident of Frankfort on the Main, in the Empire of Germany. Cain filed a rule to dissolve an exception to this suit of Marks, setting forth in substance that prior to the filing thereof he, Cain, and two cousins of Marks, had taken proceedings in the Second District Court of Orleans, for the interdiction of said Marks, on account of imbecility and insanity; and tiiat said court had appointed Cain provisional administrator pending said interdiction proceedings, and that he had given bond and qualified as such. It is, therefore, alleged that Marks is without capacity to bring the said suit against Cain, who is himself the only legal representative of Marks; wherefore it is prayed that said suit be dismissed. The facts appear to be as stated. Cain had been the agent of Marks for many years, during which time, it seems, Marks has been in Germany. Cain applied to the Second District Court of Orleans for Marks’ interdiction, alleging that he was temporarily residing in Germany, and asked that he be served with citation through the American Consul at Frankfort, and that a commission issue to have Marks there subjected to medical examination, etc. This petition, for interdiction, was filed on the 13th October, 1879, and on the next day, without any hearing of Marks, or of any one in his interest, an order was rendered turning over his entire estate to Cain, as provisional administrator.

It was argued by Marks’ counsel in the Third District Court, that this proceeding was absolutely void for want of jurisdiction in the Second District Court, Marks not being within the State, and beyond the jurisdiction of its courts.

The Judge of the Third District Court rendered an order, under this state of facts, staying all proceedings in the suit of Marks vs. Cain until a final decision had been had in the Second District Court upon the demand for interdiction, thereby declining to proceed with the case, or to pass upon the exceptions interposed by Cain. Marks complains that this is a denial of justice ; that it is the manifest duty of the judge to pass upon the issues raised, and he applies to this court for mandamus to compel him to do so. It is manifest that the district judge has rendered no judgment on the case ; he simply declines to do so, and stays proceedings. It was clearly his duty to decide the issue made, to sustain or overrule the exceptions, to maintain or dismiss the suit. Until this is done, Marks is remediless. He is entitled to have a decision, to the end that he may appeal and have the action of the court reviewed by this court.

This court, under the constitution of 1868, and all prior constitutions, had the power to issue the writ of mandamus in aid of its. appellate jurisdiction, and therefore to compel an inferior court to try a cause, to the end that its appellate jurisdiction might be exercised. By article 90 of the constitution of 1879, its powers are still more extensive, and it is given control and supervision over all the courts of the State.

We entertain no doubt of the power of this court to grant the writ in this case. See O. P. 829, 830, 837, 838, and 839.

Of course, it is not for us to say what judgment the court below ¡shall render. Our duty, at present, is terminated, when we order him ■to decide and render judgment on the issues presented. Whether the .judgment he will render will b$ right or wrong, is no present concern of this court. That question must be presented by appeal from the .judgment.

It is therefore ordered and decreed that the mandamus heretofore ■granted be made peremptory, at respondent’s costs.