Teacle v. Hughes

83 So. 457 | La. | 1919

PR-OVOSTY, J.

A suit was brought against T. C. Barrett by a neighbor for fixing the boundary between their lands. In his answer to the suit he conceded the necessity of the boundary line being established, but alleged that whatever land the line thus to be fixed might take from him he would be entitled to a like quantity from his neighbor on the other side, Mrs, Teacle and her children, the relators in the instant proceeding, and he asked that the line be at the same time fixed as between him and them, and that they be cited. They joined in the suit; their defenses being: First, that the line between Barrett and them was already established, and hence did not need to be established anew; and, secondly, the prescription of 30 years acquirandi causa. These issues, so far as appears from the present record, were tried, and were determined by final judgment against the present relators. A writ of possession then issued at the instance of Barrett for putting him in possession of that part of the land on his side of the line as established in said suit between him and re-lators. Against this writ the relators applied to the learned respondent judge for an injunction, alleging that there had been no judgment, and that they were being illegally ousted of their possession. The respondent judge granted the injunction. Then Barrett took a rule on tie relators to show cause why the injunction should not he dissolved, for the reason that there had been a final judgment already rendered on the issues sought to be raised by the injunction. This rule was thus taken in vacation time, and it was fixed for a hearing in vacation time; and, over the objection of relators, to the effect that an injunction could not be thus dissolved by summary process, but had to be tried in due course of ordinary proceedings, and especially could not be tried in vacation, the rule was tried, and the injunction was dissolved. The relators thereupon applied to this court to compel the reinstatement of the injunction.

[1] Except by consent a case cannot be tried out of term time. State v. Colbert, 129 La. 326, 56 South. 273; State v. Hincey, 129 La. 636, 56 South. 620; Page v. Pinckard, 140 La. 254, 72 South. 955; Baltimore & Ohio Telegraph Co. v. La. W. R. R., 39 La. Ann. 659, 2 South. 67. In this last case the court said:

“The full and complete organization of the courts and the terms thereof are provided and fixed by law. These terms are thus fixed for the trial of all cases and suits instituted before the court. They cannot under the elementary and positive provisions of the law be tried at any other than the regular term of the court, except in special instances expressly declared.”

The trial out of term time was therefore no trial; and, as a consequence, the legal situation is as if the injunction had been dissolved without a trial, or hearing, or, in other words, ex parte.

[2] An injunction granted inadvertently, or improvidently, may be dissolved ex parte, but only “in extreme eases” (State ex rel. Lehman v. Judge, 46 La. Ann. 173, 15 South. 283), by which is meant only in cases where the injunction was manifestly granted improperly and the continuation of it until a hearing of it could be had in due course might cause great injury. Except in such “extreme” cases the rule is that an injunction cannot be dissolved ex parte. See same case of Lehman v. Judge and Department of Conservation v. La. Gas & Fuel Co., 144 La. 962, 81 South. 454.

While, possibly, in this case the injunction should not have been granted, there is no showing made that any great injury would or might result to the defendant Barrett in allowing things to take their due course.

[3] Whether the proceeding by rule instead of by the usual motion to dissolve in a proper mode of proceeding is a matter which can be determined on appeal, should there ever be one in the case, and which therefore will not be considered on the present application.

It is therefore ordered that a writ of mandamus issue to the trial judge, Hon. John R. Land, judge of the district court of the parish of Caddo, ordering and directing him to reinstate the injunction herein, and that the defendant T. C. Barrett pay the costs of the present application to this court.

O’NIELL, J., concurs in the decree, but not in the idea that there is' or can be a difference between proceeding by motion and proceeding by rule tb dissolve an injunction.