37 La. Ann. 827 | La. | 1885
On Application for Prohibition.
The opinion of the Court was delivered by
The relator represents that he was tried before the' re-spondent for keeping a private market in violation of City Ordinance No. 4798, A. S., and was found guilty and sentenced to pay a fine of twenty-five dollars, and in default of payment to be imprisoned thirty ■days.
That he applied for and obtained a suspensive appeal from said sentence to this Court, and perfected the appeal by executing the required bond; that notwithstanding said appeal, the said recorder (respon■dent) is arbitrarily attempting to execute said sentence by the forcible collection of said fine or by his (relator’s) imprisonment; and he asks for a writ of prohibition to restrain the recorder from further proceedings in the premises.
An alternative writ was granted and the recorder required to show -cause why the same should not be perpetuated..
This answer does not justify the action of the recorder complained of. Though the sentence in question may, in his opinion, have been entirely correct, yet the relator, from the character of his defense, had the right to appeal therefrom. This right was conceded by tbe recorder who granted the appeal; and the appeal when perfected, as stated, suspended the execution of the sentence and deprived the recorder of all jurisdiction over the matter. His attempt therefore, notwithstanding the appeal, to execute the sentence appealed from, by coercing tlie payment of tbe fine or tlie imprisonment of the relator, was wholly unwarranted. It may be that upon tbe trial of tbe appeal tlie sentence-complained of may be found correct and affirmed by this Court, but this has nothing to do with the issue now before the Court. Whether the sentence bo right or wrong, so soon as the appeal therefrom was-taken and consummated, the recorder lost all jurisdiction and control over it.
The prohibition asked for is therefore made peremptory.