37 La. Ann. 285 | La. | 1885
The opinion of the Court was delivered by
This is an application for a certiorari.
The complaint is that the city judge, after dissolving- an injunction on bond, has, proprio motu, and without hearing the defendant in the case, rescinded the decree; that in thus acting ex parte, he has disregarded the form prescribed by law and the practice in such oases;, that his action is illegal and that the rescinding order is a nullity.
' Prayer is accordingly made that the rescinding order he annulled.
Tiie city judge makes return, excepting to the jurisdiction of this-Court over this matter which grows out of a case which he says is appealable from his court to the Civil District Court.
The city judge does not insist upon the validity of the proceeding -complained of. So that the only question submitted strictly is, whether this Court has or not jurisdiction over the case now pre••sented.
When we originally had occasion to consider the meaning, purport ■ and extent of the plenary powers of “ control and general supervision” vested for the first time in this Court by the Constitution, Article 90, 'we concluded that the object of this provision was to fill a gap which had been long felt and deprecated in the administration of justice, in .a number of cases, in which the appellate court had often acicnowledged its impotence, its want of right to issue the writs, its authority being restricted to cases in which the same were necessary and invoked in aid of their appellate jurisdiction, we declared that Article ■90 had emancipated this Court from all previous restraints.
We formally announced that, although the Court of Practice confined the power to issue the writs against inferior judges, to courts .having immediate jurisdiction over such judges, we were not bound by the restriction, removed, as it was, by the constitutional provision, 'to say nothing of an article of the C.P., on the subject of certiorari, which declares that the mandate is only granted where there lies no appeal. Art. 857.
We therefore held that we would exercise that supervisory juris•■diction, through the remedial writs under Article 90, whether the cases before the inferior courts -were or not appealable. We said substantially:
The use of this power must be regulated by the discretion of the court, which should be most carefully administered and exercised only in cases where there is a flagrant usurpation of authority, or where •serious injury may accrue to the parties to whom no other remedies are afforded, or where the intermediate courts are without power to grant relief. 32 Ann. 552, 555. We have since uniformly been accordingly governed. State ex rel. Murray vs. Judge, 30 Ann. 580-1.
It therefore becomes needless to determine of the character of the ■case before the city court, in point of importance, which the relator represents as being unappealable, while the city judge declares it to be appealable.
It is worthy of note that the original and amended Articles 95, 104 •and 128 of the Constitution, confer on courts of appeal the right to
It is clear that neither the courts of appeal, nor the district court, which are necessarily vested with all incidental powers required for the exercise of their jurisdiction, although the same be not expressly reserved or delegated, C. P. 130, 877, could not issue the writs, when not invoked in aid of théir appellate jurisdiction. The case now before us is not one in which, in its present stage, the district court ■could thus interfere. The interference would not be justified, as needed in aid of, that is to enforce their appellate jurisdiction.
We doubt very much, to say the least, whether, on appeal, the appellate court could question and passupon the correctness of the rulings of ■this Court on an issue presented and determined by it in the exercise of the powers conferred on it by Article 90. The final decrees of this Court could not be permitted to be thus thwarted by an inferior court. Manning’s Unrep. Cases, p. 388. Were it otherwise, the decrees and judgments of this Court, might eventually be upturned by an inferior court, an event which jrablic order demands, should not and therefore must not happen.
Although the city judge has not returned, maintaining the validity, of the decree'eomplained of, and might be considered as admitting its irregularity and nullity, we think we are authorized to say, that it appears to have been made in disregard of the well settled rule that, as decrees and judgments are the property of those in whose favor the same have been rendered, proceedings to annul them and divest such ownership are necessary and that they should be carried on contradictorily; that therefore, such decrees and judgments'should not be revoked and set aside proprio motu, or ex parte by the court in which they were made, where the contradictory proceeding is not an absolute impossibility. State ex rel. Moore vs. Judge 22d Judicial District, 37 Ann. p. —.
For those reasons the relator is entitled to the relief sought.
Tt is, therefore, ordered and adjudged that the order made by the city judge, rescinding- that which dissolved the injunction issued in .the case, described in the petition herein, be annulled, avoided and set Aside and that said city judge be perpetually enjoined from giving any ■effect which would otherwise result therefrom.
