State v. Bermudez, 14 La. 478

State v. Bermudez

14 La. 478 | La. | 1840

Bullard, J.,

delivered the opinion of the court.

We have given to the question presented by this application, no ordinary share of attention and consideration. It is one which concerns the constitutional limits of our jurisdiction, and involves the inquiry, how far we are bound to exercise *482those powers expressly given to us by the Code of Practice, of issuing certain writs, addressed to inferior courts “ for the purpose of insuring a better administration of justice,” and particularly the writ of mandamus, as provided by article 838, of the Code of Practice, “where the judges of inferior courts are guilty of a denial of justice, or unreasonable delay in pronouncing judgment on causes before them, but also if they refuse or neglect to perform any of the duties required of them by law, or which may enable the superior courts ty exercise their appellate jurisdiction.” If the exercise of these powers be not forbidden by the constitution, we are bound to obey.

Our jurisdiction is declared to be appellate only. The essential correlative, in matters of appellate jurisdiction, is original. The constitution forbids, undoubtedly, the cognizance, by this court, of any pase in the first instance. It pre-supposes the action of some other court, and the revision, by this, of its proceedings ; or, at least, the application to some other tribunal for its judicial action, and a refusal to act. To adopt the language of chief justice Marshall, “it is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings, in a cause already instituted, and does not create that cause.” 1st Cranch, 175.

We do not doubt the authority of the legislature to regulate the exercise of this appellate power, in all civil cases in which the matter in controversy exceeds three hundred dollars. It is competent to introduce new forms of proceedings, by which the judicial acts of other courts, in such cases, may be revised in this, and is not restricted to an appeal, technically so called, as the exclusive form. Cases may well be supposed, in which a formal appeal could not be taken, and the judgment of the appellate court pronounced, after hearing both parties, from the impossibility of making an appellee. Suppose an application to a judge for an order of seizure and sale, in cases where the law allows it in the first instance, and he declines to act at all. Our judicial system would be imperfect, if the errors of a judge, in such a case, could not .be corrected. Yet the remedy, by appeal, in the form *483now prescribed, might not be applicable, as Ihe case presupposes that no final judgment has been rendered. Such an application is essentially a suit on a case, in which the party seeks a remedy in a court of justice, which the law affords him.

The Supreme Court disclaims a general superintending control over the inferior jurisdictions; hut it will exercise every power incident to its appellate jurisdiction as defined by the constitution, and in the forms prescribed and established by the legislature. of the legislature must, however, be considered in relation to the constitution, which allows this court appellate jurisdiction only, and in matters which have a tendency to aid this jurisdiction. This court cannot direct inferior courts what judgments they are to render, but in cases in which it is their duty to proceed and take cognizance they ^nay be so directed, and their judgments appealed from, as in other cases. It is only in relation to courts actingjudicially, and in cases in which an appeal might be prosecuted to this court after final judgment, that it ■will issue ■writ» ofprocedendo, or mandamus.

*483Among the first judgments pronounced by this court, was that by which it disclaimed a general, superintending control over the inferior jurisdictions. Laverty vs. Duplessis, 3 Martin, 42 and 54. We still disclaim such authority, but we are bound to exercise every power incident to our appellate jurisdiction, as defined by the constitution, and in the forms and manner established by legislative authority. The right to issue a mandamus to courts of inferior jurisdiction, has always been asserted, whenever such mandate became necessary for the exercise of the appellate jurisdiction of this court.

In the case of Winn vs. Scott, this court said that the expressions of the Code of Practice seem to embrace all possible cases, but the authority there granted, must be considered in relation to the Constitution, which allows this court appellate jurisdiction only, and its mandates must be confined to matters which have a tendency to aid that jurisdiction. 2 Louisiana Reports, 38.

We certainly cannot, in any case, direct the inferior courts to render a particular judgment., or what judgments they shall render. But in cases in which, in our opinion, it is their duty to proceed, and take cognizance of a case, we may so direct; and if the judgment afterwards rendered, or order given, be appealed from, we have a right to render such judgment ourselves, as the justice of the case may require ; and if the order be a preliminary one, and necessarily ex parte, we see no good reason why the appeal should not be of the same character. It is only in this way, we can give effect to the provisions of the code in question, and proceed to settle questions of jurisdiction without a formal appeal in the forms now established by other provisions of the code'. But it is only in relation to courts, acting judicially, and in cases in which an appeal might be prosecuted to this court, *484after final judgment, that we feel ourselves authorized to issue writs of procedendo, or mandamus.

So, on a refusal ofthejudge of probates, on the application of the tutrix, to appoint an under tutor to her minor children, and order a family meeting, with a view to relieve her property from a general • mortgage and give a special one, a peremptory wan* damns will be awarded, requiring him to proceed. It is the duty of the judge of the parish where the minor has his domicil, to appoint an under tutor as soon asa vacancy occurs.

In the case which now presents itself, the judge of probates declines to take cognizance of an application, by a tutrix, for the appointment of an under-tutor to her minor children, and for the convocation of a family meeting, with a view to relieve her property from the general legal mortgage in favor of the minors, on offering other adequate security. The grounds stated by the judge, in his answers to the rule, are, in substance, that, although the domicil of the minors may have been changed since the confirmation of the tutrix, yet the judge of probates of the parish, by whom the appointment was made, and the security was received, still retains exclusive jurisdiction in relation to any change in the security, or the convocation of a family meeting; that the jurisdiction of this judge lasts as long as the tutorship, and cannot be avoided by the change of domicil.

It appears 'to us, the principal and material inquiry is, whether the judge of probates of the parish of Orleans is bound to appoint an under-tutor to minors whose domicil is in his parish. That is the first step to be taken, for the proceedings, in relation to the security to be given by the tutors, and must be carried on contradictorily with the under-tutor.

We have no doubt that the judge is bound to proceed and appoint an under-tutor, as soon as a vacancy occurs. It is the judge of the parish where the minor has his domicil, who is to make the appointment. Louisiana Code, 289.

The code appears to contemplate cases in which the general legal mortgage on the property of the tutor, may be restricted, even during the tutorship, and where such restriction did not take place at the time of the'appointment. Louisiana Code, 3308, 3309.

It is, therefore, ordered, adjudged and decreed, that the judge of the Court of Probates proceed to take cognizance of the plaintiff’s petition, and to make an appointment of under-tutor, according to law.