41 La. Ann. 951 | La. | 1889
The opinion of the Court was delivered by
The relator applies for a mandamus to compel the district judge to grant him an injunction, which the latter lias declined to allow.
The return is substantially that, under the showing made, the petitioner does not come within the purview of the provisions of the law Contained in the Code of Practice, by which, no discretion existing in the judge, he is bound to allow the relief, and further, that the aver meats are insufficient and do not justify the issuance of the writ.
The pith of the lengthy petition presented to the district judge, and which forms part of that for a mandamus here, is simply that, for certain reasons, the petitioner has been illegally deprived of the collections of the revenues of the Second Street Market, in the city, by one Billgery and his heirs, who are in possession of the market, and who for many years have been and are collecting the revenues thereof, to the injury of the petitioner.
The district judge, after hearing the parties, ou a rule nisi, refused the writ.
We cannot say that he erred. It is evident that the suit is one for money, and that the purpose of the writ sought is to oust the defendants from the possession of the market, and the collection of the revenues-which it yields.
The ease does not come as one of those in which the judge is hound to grant an injunction, but it ranks clearly among those in which the writ may or not issue, as he may, in the exercise of his legal discretion, primarily determine.
It has been repeatedly held that, although a preliminary injunction niay issue to maintain a plaintiff in possession, it should not he allowed to oust one in possession of property.
Had the injunction asked been allowed, the defendants would have been turned away and the plaintiffs restored, or put in possession of the market and enabled to collect the revenues previous to final judgment on the merits. The following authorities are in point: N. O. & N. E. R. R. Co., vs. Miss., etc., R. R. Co., 36 Ann. 561; State ex. rel Sigur vs. Judge, 33 Ann. 133; Torres vs. Faljoust, Ib. 560; City of New Orleans vs. Great Southern Telephone Co., 37 Ann. 571. See also Healey vs. Allen, 38 Ann, 867.
We must not be understood as at all trenching upon the merits of the case,' as, it may be, as a possibility, that, under the allegation said to he made for the first time, of the discovery of a counter-letter between the relator Raymond and Billgery, the plaintiff may obtain the relief sought.
We only hold that the case presented to the district judge is not one of those in which ho was bound to allow the preliminary injunction asked, and that, in the exercise of our supervisory jurisdiction and control- over inferior courts, we have no reason to order him to do that which he has declined doing.
The application for a mandamus is therefore refused with costs.
