The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-06-23
FIFTEEN CENTS A WEE
Supreme Court OF Louisiana.
Condensed Decisions--NEw ORLEANS. June 6,

oath, with having made nie surender, by withhold
ing part of his and he arrested and PLACED
in confinement and afterwards set at liberty by the
lower Court which granted dec0tnfire appeal only IL
the complaining creditors! hetd. that maadamu,
could be allowed to compel the Judge below to grant
saspensire appeal the Judges of the Supreme Cour
being equally divided in opinion.
THE STATE OF LOUISIANA, on the relation Of
ABRAHAM EMANUEL and others, praying for writ
of mandamus, u.s. A. Nj. BUCHANAN, Judge of the
Fifth District Court of New Orleans. .EUsrIs, G..
and RosT, For the reasons assigned by the Dis
trict Judge, we of opinion that the judgment OF
the Court below should be affirmed.
Judge BUCHANAN's answer 10 tn. mandamus:
The defendant comes into ou and with respect shows
n this tbs this respondent tons de I'D 10 be his du,
o 81 the e 1 e
Charles Patterson praying for the writ of ha6eas
n bus
the Court issuing the writ The oody Of his prisoner together
of the case upon the Of the writ the Court issuing
the same be OF opinion that the imprisonment cannot ally
only issue is the right of the petitioner his liberty and the
Judgment carried into effect witlou, delay either by d.
respondents 9ie0 OF Aabcas corpus act and such
been the unom pafce s for may ears sf the Go. oveI
Patterson for habeaS notified TO the who
s2 of the c. P And that party (he relation in the pre-
cae) was present IN Cop upon The ta OF the habea
in oppoon the discharge PatteI and the udgmenr
pronounced in his And this RESPONDENT here
Charlie, Patterson Us lis irediio and that OF Charles Pat
himself TO the judgment OF the Court in The premises
SLIDELL, J. RING, J. concuring.l Charles
Patterson filed IN the Fifth District Court of New
Orleans, his petition as an insolvent debtor. Eman,
uel and others, his creditors, made a charge OF
fraud, obtained an order Of arrest. The terms of
the writ, which followed the order, were that the
sheriff should arrest Patterson and confne him
until he shall give bond with good and sufficient
security in the sum of 500 600 conditioned that
he will not leave the limits of the jurisdiction of
this court, until after the surrender Of his properly
shal have been accepted by his creditors, or duly
hnmologaied and the property surrendered by him
duly delivered. Patterson being unable TO give
bail remained in custody. Subsequently meet
ing of his creditors took place, and their proceed
ings were homologated. Patterson then presented
petition for a writ of habeds corpus praying for
his discharge on two grounds: lst That his arrest
was Illegal, there being no law TO authorize the
same. ID. Because the term of his Imprisonment
had expired and the conditions upon which it was
to continue had been fully accomplished, because
the property by him surrendered had been delivered
to his creditors; they had accepted the surrender
and their proceedings had been homologated. No
tice of this application was given to The creditors
and after hearing, the district judge rendered the
following judgement: The court having taken this
case under consideration, considering that the
period fixed by the order of Judge Mcienry, acting
as Judge of this court on the 9th ult., for the
Imprisonment of the petitioner, has by the terms
thereof, and by the terms of The art. 233 of the
Code of Practice, expired Ii is decreed that the
prisoner, Chas. Patterson, be discharged from GUS
tody forthwith
The creditors whose charge of fraud was still
untried, then prayed for suspensive appeal from
this order of discharge which the court refused;
whereupon they applied TO this court for a manda-
mus compel the district Judge 10 grant them such
appeal. rule to show cause having been granted,
the district Judge answered as follows: THE
answer is given above.l
Some remarks have been made in argument as
to the correctness of the opinion and judgment by
which Patterson was set at liberty. This is a sub
ject which is not now before us. Our inquiry is
not whether the judgement is erroneous, but
whether the creditors had right TO a suspensive
appeal from that judgment. The right of appeal
is not dependent upon the correctness or error OF
the Judgment. Until the judgment is before us by
appeal, we cannot pronounce 1t right or wrong
The question is one of the, appellate power and
jurisdiction of this court; and for its solution our
first resort must be TO the constitution under which
this court has its being.
The 63d article of the constitution declares
" that the Supreme Court except in cases herein
after provided, shall have appellate jurisdiction
only, which jurisdiction shall extend to all cases
when the matter in dispute shall exceed $500, and
TO all cases in which the constitutionality or
legality of any tax, toll or impost of any
kind or nature soever shall be in coniesia-
ton, whatever may be the amount thereof; and
likewise to all fines, forfeilures and penalties i'm
posed by municipal corporations; and in criminal
cases questions OF law alone, whenever the
punishment of death or hard labor may be inflicted,
or when fine exceeding $500 is actually i'm
posed.'
The article 9th declares "that the Supreme
Court, and each Of the judges thereof, shall have
power 10 writs of hobeds corpus al the instance
of all persons in actual custody under process in
all cases i'll which they may have appellate juris
diction.''
We will first inquire into the appellate jurisdic.
ton of the court in this case, controlled by the
63d article, and as though that article stood alone
reserving for subsequent consideration the effect of
the 9th article upon the grant OF jurisdiction ante
ceden,ly made. And here the consideration which
first presents itself is the identity of the appellate
jurisdiction of this court in civil cases, with that OF
our predecessors, under our former constitution
adopted in 1872, and under which the Stale was
governed for more than thirty years. The I'd see
ton of the 4th article of that constitution ordained
IS that the Supreme Court shall have appellate inris-
lcton only, which jurisdiction shall extend to all
civil cases when the matter in dispute shall exceed
The sum of $780, Ii is true that i'm the present
constitution, the word "civil' is not expressly
used the language of the first clause of the OBI
article being, " all cases when the mrtter in dis
,ute shall exceed $500; but its insertion would
have been surplusage, that civil cases and none
others, were contemplated in that clause, is obvious
rom The subsequent provision with regard to the
appellate jurisdiction in criminal cases-a iurisdic
ion OF restricted character and unlike that con-
lerred in civil cases, limited to questions of law
alone"
In copying the constitution of 1872 we are bound,
Is We said in Mckee Ellis, ID Annual l67 |
o presume that the convention was aware of the
construction which the said grant of jurisdiction
lad received from the former Supreme Court, and
nlended that in the new constitution it should |
nave the same meaning. 81 de interpretations lgis |
'u9rantur IN Pr'ms inspiciendum est quo jure Gin,
as retro IN ejusmodi cdsibus asa tuissef What |
vas held therefore by our predecessors upon the |
resent question, has the authority of precedent;
nd the force of that authority is certainly much |
if it be found upon examination of their
decisions that they We're uniform and repeated |
'ide Cd Annual Rep 979.
We will proceed, therefore, to brief review of |
he jurisprudence on this subject, indispensa-
lie duty in The solution of the present question.
The first case 10 which our attention has been |
allied, is Laverty US. Duplessis, decided in 1913.
Fhat was an application for a mandamHs TO the |
district Court 10 allow appea! from an order on
habeas corpus discharging Laverty. He had been
rrssted by the Marshal of the Inited States "a an