State ex rel. Shakespeare v. Duffel

41 La. Ann. 557 | La. | 1889

The opinion of the Court was delivered by

Fenner, J.

The proceedings of the respondent judge, which are assailed in this action as exceeding the bounds of Ms jurisdiction, and as null and void for irregularity, may be briefly stated as follows: On the 6th of March, 1889, the commissioners of the first drainage district of Ascension, joined by various land-owners, alleging that Win. J. Kelley and others, owners and occupants of Bocage plantation, liad obstructed and were obstructing a certain public canal which had existed and served as a common drain for the district for more than thirty years, and had, by threats and violence, prevented the said commissioners from discharging their legal duty to clean out said canal and remove all obstructions therein, to the great detriment and injury of the property of the inhabitants of the district, applied for and obtained an injunction restraining said parties from further obstructing said canal or from interfering with the commissioners in removing or causing to he removed existing obstructions, and prayed for a final judgment recognizing the rights claimed by petitioners and perpetuating the injunction.

To this suit, the parties defendant appeared and filed several exceptions which were regularly tried and overruled. They then joined issiie by general denial, and the case was fixed for trial on the 30th of March; bat, when called, on the application of defendants, was continued until the next term of court.

On the 5th of April, the plaintiffs filed a supplemental petition, alleging that, notwithstanding the injunction, the defendants persisten in maintaining obstructions to the said canal and threatened to kill the said commissioners or other persons who should attempt to remove them, and setting forth the great injury and damage thereby occasioned to the district, and prayed for an order on the defendants to show canse on- a day fixed why an order should not he granted authorizing and directing said commissioners or the sheriff to remove said obstructions and to keep said banal clear until the further order of the court.

On this petition the judge granted his order directing the defendants to show cause on the 12th of April, why the relief prayed for should not be granted.

On the 12th of April, at the hour fixed, the plaintiffs appeared with their witnesses, but the defendants made no appearance and filed no pleading. After waiting a reasonable time, the judge took up the rule and proceeded to hear witnesses, and it was only after progress had been made that a verbal message was received from one of the counsel for defendants stating that he could not be present and requesting a continuance till the following Monday, when, the judge says, he was to open court in another parish.. He refused the request, and, after hearing- witnesses, granted the order prayed fox.

The defendants, who are the relators here, invoke the exercise of our supervisory jurisdiction, through writs of certiorcvri and prohibition, to declare the absolute nullity of both the original injunction and of the order to remove existing obstructions, and to prohibit the respondent judge from executing them.

The case presented is utterly barren of any foundation for the exercise of our supervisory power.

The relief by certiorari is inapplicable, because the proceedings are perfectly regular in all respects., The only point on which their regularity is assailed is that the judge was without power to hear or grant the order removing the obstructions in vacation or at chambers; but this is answered by the express x>rovision of Art. 1746 R. S., which declares “ the district judges shall have authority, at chambers, to grant * * orders of arrest, attachment, provisional seizure and injunction and all orders relating thereto.”

Indeed, these summary and conservative remedies would be shorn of their intended efficacy if the opportunity of invoking or enforcing them were suspended during thfe long and frequent vacations of the courts.

The writ of prohibition raises questions of jurisdiction and of judicial power. So far as the jurisdiction of the court is concerned, it is patent on the face of the x>apers. The court presided over by the respondent, and no other, has jurisdiction over the xmrties and subject-matter.

The orders granted lie unquestionably within the judicial power.

So far as that xmrt of the original injunction sx>ecially comxffained of is concerned, viz : the prohibiting defendants from interferring with the commissioners in removing obstructions — the allegations of the x>etition bring it distinctly within the x>rovision of paragraph 4 of Art. 298 of the Code of Practice, as one of the cases in which, says the article, “ the injunction must bo granted,” viz: “ When the defendant opposes the execution of works necessary for the repairs of irablic levees, dikes, roads, bridges, canals, d/rains and the like.”

This is alleged to be a public canal and drain, and certainly the clearing out of obstructions therein is a necessary work of repair, without which its whole usefulness would be destroyed. It is alleged and, indeed, admitted, that the defendants are interfering with the execution of this work. It is vain for them to deny that the canal is x>ublic, or to assert tlieir legal right to maintain obstructions and to x»revent their removal. Those issues go to the merits of the case and must await determination by the Anal decree. If they shall be decided in their favor, the bond of plaintiffs will be answerable for the expense of restoring their dams and for all other damages they may suffer.

Nor can the power of the court to order the removal admit of quostion. The power to grant such orders, in certain exceptional oases, lias been affirmed by this court in decisions entirely applicable here. McDonough vs. Calloway, 7 Rob. 442; State ex rel Yale vs. Judge, 41 Ann. 516.

This case, on its face, falls within the exceptional authority thus recognized, tlie order having been made in aid and enforcement of a valid prohibitory injunction.

The contention that these orders operate, in effect, a final decision on the merits of tlie case, in advance of trial, is unfounded. The orders are manifestly interlocutory and only serve to regulate the conduct of the parties pendente Ute. When the case shall be finally decided, the legal status of the parties will be declared and enforced, and whatever wrongful interference therewith lias happened in the meanwhile will bo repaired under the security of the injunction bond.

It is, therefore, ordered and decreed that the writs applied for be denied at relators’ costs.