Winn v. Scott

2 La. 88 | La. | 1830

Mathews J.

delivered the opinion of the Court.

When a Prohate Judge proceeds to a public sale of property under his own order of Court he assumes the character of an Auctioneer, and as such, is not answerable for his conduct, except under ordinary pro ceedings established by law.' • • The article 790 of the Code of Practice, does not embrace the issuing a mandamus to compel an Auctioneer to do his duty — it only applies to cases which have a tendency to aid the jurisdiction Western District. October, 1830.

This is an application to the Court to issue a mandamus to the Judge of probates for the Parish of Rapides to compel him to convey to the plaintiff a certain tract of land which he alledges he purchased at a sale of the succession of a certain Mrs. Jett.

The article 790 of the Code of Practice is relied on as authorising and requiring the Court of Appeals to issue the process now demanded.

We do not believe this article to be applicable to a case like the present. When a Probate Judge proceeds to a public sale of property under his own order of Court, he assumes the character of a Auctioneer, and as such, is not answerable for his conduct, except under ordinary proceedings, established by law.

It is true, that the expressions of the Code of Practice on this subject seems to embrace all possible cases. But the auAtoity there granted,must be considered in relation to the constitution which allows to this Court appellate jurisdiction only : and its mandates should be confined to matters which have , a tendency to aid that jurisdiction.

It is therefore ordered, that the plaintiff take nothing by his motion.