Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-01-20
A PARTY PROTESTS AGAINST 4
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"A PARTY PROTESTS AGAINST a
ORDER OF COURT
Itfsa well settled rule tina. the writ of man
/ damus never issues where the relltoF mas al
| adequate remedy by appeal
] perintending control over the district courts
! and limits summary actions 10 lto~r case
] where Us interpoSition is necessary Tor tht
/ maintenance ofiIS appellate lurisdleilon-
/ Before a nandaInus viii issue II must oe SHOWN
/ the relator has in vain applied to the inferior
I tribunal for relief
! district judges, but viii not compel them n9
| mandanus TO decide according 10 the dc
] fates OF any Judgment but their own.
Mr.. Justice Ilsley rendered the opinion
Of the court:
The state OF Louisiana, eX-relatiOne
Lucien Harris, vs.. the Judge OF the
! Thirteenth Judicial District, parish OF
! MadisOn-No ll07. Lucien Harris, the
relator, sets out in his petition that on
] the 25th October, 1866, as assignee Of W.
! H. Harris, lessor Of two large plantations
! to Theodore \. Boss. lessee, he sued out
a writ of provisional seizure before the
/ Hon. F.. ID. FarTsr, judge Of the thir-
! teenth judicial district for the parish OF
/ Madison. to secure the sum of S25, 600,
/ the price of the rent for the said prem
| ises leased to the said Boss, said suit be-
| ing STYLED Lucien Harris VS.. I. n. Boss,
/ No. 2ll, on the docket of the said court I;
/ that in pursuance thereof, the sheriff Of
| the said parish was proceeding to exc
cute the said writ Of provisional SEIZURE
! by seizing and taking into his possession
| the products and mOveables on the plant
! ati0ns leased, when be was arrested iTom
! further proceedings by an eX parte order
/ of the said Judge, not made in open
court directing the said sheriff Of Madi-
son parish to release the property pro-
| visionally seized in this case, on defend
ants bond, with security; and he prays
! for q mandamus, to compel the district
| Judge 10 set aside, avoid and annul his
ex parte order prohibiting the sheriff
! from executing the writ OF provisional
| seizure according to law.
The district Judge, by his answer, ad-
mits the facts recited, and says among
other things, that the plaintiff has mis-
taken his remedy that If the order to
bond was wrongfully granted, it should
! be corrected on appeal.
The only question we have to solve Is
| not as TO whether the proceeding com
planned of wasimp prOvidmerand Irregular,
! but whether the case before US is one in
which a mandamus ought to issue, and
we are all OF the opinion that this Is not
such q case.
well and definitely established, il is that
the writ of mandamus never issues where
the applicant has an adequate remedy by
appeal. See the cases reported in the 2d
ami, 279, an, 7l6 S an 81 ; 8 an, $50,
10 an, 420.
In the csse of the state TO the judges Of
the fourth district of New Orleans, the
court sets the question at rest. 1t says,
considering the Importance of the sub
iect, and the frequency Of such applIca-
ton, we have taken pains long since to
define the powers Of this court touching
the writ of mandamus, and explains the
circumstances under which it would be
issued.
II seems surprising, then, at this late
day, any miscOustTuction on the subject
should exist. It is .abuudauuy settled
that this court disclaims any general su-
perintending control over the district
courts, and limits its summary actions to
those cases where its interpretations Is
necessary for the maintenance OF its APP
pellate Jurisdiction.
These principles were repeatedly re-
cogniZed by our predecessors, and we
consider them as resting upon a wise
policv, and a sound exposition Of the
constitution under which our state has
been governed. From those principles
was naturally deduced the well settled
rule that q mandamus will not be issued
where the applicant has an ample rem
edv bv appeal. The order, as the relatOr
declares, would cause him irreparable
injury, and. as the case is an applicable
one, a direct appeal from the ORDER
which Is and intercnlutory Judgment
would lie Seghers vs. Antleman. J \.
;. 93. Newell vs.. Morton. 3 Rob, lUS.
Duplesses VS.. lastrappes. NJ. Rob, 4j5.
The two cases cited by the relatOr in
support Of his application, have no bear
ing IN a case like the present one, which
we consider very analogous 20 the one
decided by us in the case Of the state on
the relation Of Alter vs.. the judge OF the
fourth district court of New Orleans, re-
ported in XVII. An, At page 2a2. FOR
the case Of the state VS.. the Judge oil the
commercial court of New Orleans, one of
the cases relied on by the TelatOri the
mandamus was not granted, the court
observing that 10 is an extraordinary
writ and should only be issued in a case
Of great necessity, when clearly shewn,
and before We will issue It, itmpst appear
that the appellant has applied in vain to
the inferior Judge for relief No such
showing is made in this case.
In the other case, the State vs.. the
Judge OF the SECOND district court of
New Orleens, XIII, An, 4sl, the other
case cited, the court said, and emphat-
callv, " il il clear that this court cannot
in a proceeding by mandamus, revise
the action of the district Judge" The
relief prayed for in that case was for a
rule nisi directing the district judge to
show cause why he should not make the
necessary order appointing Fonda and
ROdd, tutor and under tutor 10 the said
minor, on the terms recommended by
the family meeting, or that he reject the
same, and proceed on his own response
bility to appoint a tutor or an under
tutor according to law, and in that
case, whether properly or not, the
rule was discharged. Whatever
remedy the relatOr may have, it
il not that of a masdamus. We
will review the decisions Of district
Judges when properly presented to u,
hut we will not, by mandamUs, compel
them TO decide according TO the dictates
Of any Judgment but their own. The
COMPLAINT OF the relaJor must be dis
missed. Art. S42, code Of practice.
II Is therefore ordered, adjudged and
decreed, that the complaint Of the re-
lator, Lucien Harris, be, and the same
is hereby dismissed, and that be pay all
costs.
+ w. Huntington, for appellee; Geo.
I. Bright for appellant; B. l.. Lynch,
for state.