New Orleans Republican., 1873-08-10
COURT RECORD.
Third District Court.

The following decision has been rendered
A. K. Gaspari et 81. VS.. Third
Justice OF tie Peace. = Application
for writ OF prohibition. The realtors
oe.it:on represents that on the eigntn OF
Jnly last, Judgment having been rendered
agains. them for the sum Of forty dollars,
in favor OF John A. BcrnOs. by the third
Justice OF the peace tor the parish o. Or.
loans. No. S7S of the docket OF the Third
Justice Court. they filed N due time, before
said Justice court, a bond conditioned as
the law requires it tor a suspensive appeal,
which appeal was granted oy the juuge.
That on the sixteenth o. July folio Wing.
rhe;. were served with the copy OF
a rule taken by John A. Bernos. to show
cause WIZ the suspensivs appeal oy them
obtained should not be set aside on various
rounds, among which there are some, ac-
cord:ng to said rule, that are no longer under
tne cognizance of TIE said TLrd Justice
Court. The REALTORS petition further rep
reser-s thai on the trial o! the rule, on the
nineteenth Of July last, said John bernos
brought to the knowledge OF the lower
court grounds not set forth n the rule
served on the REALTORS, and over which said
co, : had no longer any jurisdiction, ana
that the third justice OF the peace dld II,
legally dismiss the appeal granted to sa!o
re!ators on grounds not notified TO them,
and which said Justice of the peace had no
power OF jurisdiction to pass upon. Inc re-
sDondent AYERS IL his answer that the )Idg'
ment intended to be appealed from py re,
lators being for $40. with interest ana
costs, aud the costs at the time
OF the appeai-s7 5c-torniag part
| of the Judgment, and the law
| recurring for suspenslve appeal
! bond tor a sum double the amount OF the
! Judgment The bond fled before the lower
court by the relators. for the sum OF $50, IS
| Insufficient in amount and not condltioheo
! as required by law. And the respondent
esrecially denies that the matter PASSED
| mon by him the ;nautticiency of the appeal
| bond was no logger within the competency
! o. the Third Justice Court: he also denies
| having dismissed the suspersIve appea.
| taken by the relato-s on grounds nc. set
| forth in the rule ''to set aside" The grounds
| assigned in the mo.on to dismiss the suit
are the following: First. the appeal bonu IS
not IA the form as directed by law. nor
| for amount sufficient: second, the secUr.-
on said appeal bond is not good and
solvent. In the copy of tn. motion
! served upon REALTORS the aforementioned
| grounds il is :rue,are no. Sc. forth reraatiih;
| ou. :he REALTORS are plainly referred = ,lt:
| grounds on .i.e-tLat is. 20 the grounds as.
| signed il the origina, motion ITO dismiss.
| This is a sufficient notification il the con.
temptation OF tire law. and i sAe REALTORS
took no notice CT the grounds especially as
signed in the pleadiags they can NO: com
| rIa;n. .Iegligsntinhl sn0in Gileynns fsMh
| Cudiinr. Whether the costs must be Sc
| cured bv the appeal bond. as well as :he
principal sum for which the Judgment has
| been rendered. "a matter which can not
! he in CURED int, under this present form OF
action. The only question which this couc:
is called upon 10 examine Is this: Is OF
rather was. tie :hird Justice OF tAs
peace vested with the power OF lIqulr
iny into the su.ficieney OF the aopea
| bond riven BY the realtors Was ne com
r,etent 70 decide on that matter. Iae "a
1irmative | think. Is no: susceptible OF
| Gouj.: K flows from the act relative TO the
| Justice. of the peace in the parish OF u"
| leans. enacted March Il. 1870. and re-en
acted in 1870. Section pos. Of the K. ;
DEGREES. as follows: - Whenever an az
peal shall be taken after the delay men
| toned in section POSI- three judicial days..
or when on account OF tie insufticlencv o.
! The appeal bond or some other irregularlty
the Judge, after hearing the parties, sha!
be of opinion that the appeal must be SCI
| aside then he will reserve-to the appel
lant-the right @. renewing his appeal
provided that the appea. so renewed
shall not prevent the other ,partT
in whose favor the judgmen
| was rendered, from enforcing the execution
thereof etc. By passing on the question o
the sutfciency Of the appeal bond filed hy
the REALTORS herein. the Justice OF the peace
has violated no Law. nor has ne committed
any usurpation OF power: but he has ac:ee
\ IN the limits Of the authority conferred
upon him by the law above quoted: Moth
Ing short OF a clear usurpation OF Iurlsdlc
ton will authorize the issuing OF the writ
prohibit. and tina. wri. vii. not lie %
prohibit tie judge OF an inferior tribnna
from proceeding turther in the cause wher'
il :s shown that he is vested with iurisdlc
| .;o, over the case" c. p. art. i66: 20 a
r.. IL: - A. L.. 81. For these reason:
lc. the @r:. o: prohibition herein prayed .o'
| oe refused.