19 La. 174 | La. | 1841
delivered the opinion of the court on this application.
This case is brought before us on a rule obtained by the defendants, requiring the judge of the district court, the sheriff
It appears from the record, that on the 28th of April, 1841, a printed appeal bond, containing several blanks, was filed by the appellants, after having been signed by them and their security ; that when said bond was filed, the sum of $1000 was filled up in the blank as the amount thereof, and that all the other blanks in the bond, including the name of the appellee, were not filled up until the 28th of May following, when they were so filled Up by the clerk of the district court, with whom the bond ,had been left by the appellants, at which time the transcript of the record for the supreme court was completed, including the appeal bond. In the mean time, the appellee obtained from the court below a rule on the appellants, to show cause, why the appeal should riot be dismissed on the grounds, that no appeal bond had been executed according to law, and that the security tendered in the instrument, purporting to be an appeal bond, was insufficient. This rule was discharged by the district judge, without prejudicing the rights of the plain* tiff to issue execution.
The lower judge has shown for cause: 1. That the petition filed herein is not sworn to according to law. Code of Pract, art. 848, and French text.
2. That if there is any ground for prohibition, under the allegations of the petition, said writ should not issue against the undersigned, but against the party prosecuting the execution, and the sheriff of the district court. C. Pr. 850, 853.
3. That the petition shows no legal ground for the writ of prohibition.
4. That the petitioner has mistaken his remedy, which was by injunction or appeal.
The appellee and the sheriff have not answered, but their counsel having agreed to adopt the answers of the judge as their own, we shall proceed to examine the above grounds relied on by them, in the order in which they have been set up ; after having bestowed on the questions therein presented, all the attention which their importance requires.
I. The article 848 of the Code of Practice provides, that “ the court, to which this petition (for a writ of prohibition) is offered, shall require the oath of the petitioner to the truth of the facts stated in it, unless these facts be proved by the mere L J examination of the prayer or of the proceedings which took place before the inferior court.” In French it says : “ La cour devra éxiger le serment du pétitionnaire, at d moins que ces faits ne soient prouvés par Vinspection seule, §-c.” It does not appear to us, that it was necessary in this case to require the oath of the petitioner, as the facts, on which the application is made, are sufficiently proved by an inspection of the record of the proceedings had before the inferior court. We understand the law to mean, that we should require the allegations contained in the petition to be sworn to, only in case of our not being satisfied of their existence, after an examination of the prayer or of the proceedings, and that such an oath •is not to be taken, unless we require it. C. of Pr. 849.
II. It is true, that the inferior judge has nothing to do with the issuing of the execution of a judgment; this proceeding generally takes place at the request of the party who instructs the clerk accordingly, and when put in the hands of the sheriff, it is carried into effect without the interference or interposition of the judge ; but in this case, the execution was issued in consequence of a special order of the court, that the appeal should not operate as a suspensive one, the rule being discharged, without prejudicing the rights of the plaintiff to
We are not rea¿y to deny to the district court the power of j j x trying, on motion, the sufficiency of the security furnished on ‘ the appeal bond ; indeed, this was not controverted and was . . , , , , even indirectly recognized as the proper course to be pursued, *n case xePorted 13 La. Rep. 574; but we think, that if an error be committed by the court below, by refusing to give to . . . the appeal the effect of a suspensive one, and by authorizing-
III. The petition and the record show, that the appellants 1, . . . . had caused their security to sign a printed appeal bond, one of the blanks of which was filled up at the time with the amount fixed by the judge, and that said bond was filed with the clerk within the ten days allowed by law. In „our opinion, this bond was sufficient to bind the security. In the case of Breedlove vs. Johnston, 2 Martin, N. S., 517, this court held in substance, that the obligor who gives his signature in blank, is bound by the obligation which may be written above it; in the present . , . , ... case, as m the one just quoted, it is clear that the security left his signature with the proper officer, for the purpose of filling up over it, the blanks of an instrument, which was to be used as an appeal bond; he intended to be bound in the sum of one thousand dollars, and we cannot see any good reason, why he should not be held responsible in the manner, in which he consented to bind himself. This bond then was sufficient to make the appeal suspensive; and if so, the jurisdiction of the district court being suspended, the judge, after finding that the security was good and solvent, 'could not legally take any further step in the cause, by ordering an execution to issue ; the plaintiff was precluded from taking it out, and the sheriff from carrying it into effect. We think therefore, that the grounds set forth in the applicants’ petition are sufficiently legal for obtaining a writ of prohibition.
IV. It has been strenuously urged that the appellants have mistaken their remedy which was by injunction or by appeal; and we must confess that our opinion was, in a great extent, shaken by the plausibility of the able and ingenious arguments of the district judge who appeared before us in propria persona; but on a closer examination of the subject, we have not been able to come to a different conclusion. This court has repeatedly disclaimed a general superintending control over the inferior jurisdictions, and when called atpon to exercise
It has also been insisted that the object and effect of the writ of prohibition is to preclude the lower court forever from acting
We are therefore of opinion that the application of the appellants ought to be sustained, and that a writ of prohibition should issue directed to the judge a quo, to the appellee and to the sheriff.
Our learned brother of the District Court has endeavored, in his arguments, to controvert the opinion of this court lately delivered in the case of D. T. Walden vs. the City Bank, 17 La. Rep. 511. tie has attempted to convince us that the remedy in that case was by appeal only, and not by a writ of prohibi-tionthat our decision was inconsistent with our first decree in the same cause : ante 167—and that we had assumed original jurisdiction in a manner contrary to the constitution of the State.
We have already expressed our views with regard to the
R has been also contended that our first decree in the case of Walden vs. the City Bank, is inconsistent with the second": the former was rendered under very different circumstances ; the application there was made for the purpose of preventing the District judge from trying a cause on its merits, whilst an
But it has been maintained that by granting the writ of prohibition sub modo, and by requiring the applicant to furnish a bond with security for seventy-five thousand dollars, for the purposes set forth in our decision, our decree was a violation of the constitution of the State. The writ of prohibition, the power to grant which, is specially allowed by the code of practice to appellate courts of competent jurisdicion, is not a writ of right; it is within the sound discretion of the tribunal to which the application is made, and the party who resorts to it, is hound to establish such facts as to convince the appellate court that the remedy applied for is necessary, not only for the protection of the legal rights of the party, hut also and principally for the constitutional exercise of our appellate jurisdiction. We understand therefore that the authority thus granted, being- ...... ... ° sidered in relation to the constitution which allows to this court appellate jurisdiction only, is to he confined to matters which have a tendency to aid that jurisdiction, and that the issuing of the writ of prohibition, under the circumstances shown, may he 1 J constitutionally ordered upon such conditions as, in our legal ... ... . , ° discretion, we may think proper to impose on the applicant for the protection and benefit of his adversary, the exercise of whose rights, during the appeal, is to be suspended by such, writ. In the case in question, the relief sought for, among
It is therefore ordered, adjudged and decreed that the rule be made absolute.