New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-01-19

made at the instance of the State is not
such judgment as will authorize motion
for q new trial. This motion, however,
was made, considered by the gentleman
acting as the judge of the court, and the
new trial was granted. In the course of
my argument | shall consider this motion
for a new trial. and the subsequent motion
for the dismissal of the case, as simply a
motion for the dissolution of the
Injunction which was granted after
the hearing of the rule nisi, and
which was as if it had been granted sr
parte by the judge when the petition was
first presented to him. The motion was
granted, and the judge dissolved the in
junction and dismissed the case. 1t has
been long settled in the practice in this
State that if, after an injunction has been
granted by the court below, the judge dis
solve it upon the motion of the defendant
and such order of dissolution is calculated
to work an irreparable injury to the party
plaintiff or to any other person, the PLAN
tiff or such third person having an appeal
able interest may take an appeal On me
appeal, the court above considers the
prOpriety of the rendition Of this order DIS
solving the injunction, and If, after consid-
ering the facts that may be presented by
the record taken up, che superios court
ton is calculated to work such person an
irreparable injury, the court renders its
Judgment reyOkine such order, the effect OF
which is to Feinstate the injunction In Che
court below, and the case goes on until ito
final determination, when an appeal may
be taken from the final judgment made in
the cause. ] now insist, nay ID please the
court, that if the appeal is properly before
the court, the court must either maintain or
reverse the order dissolving the injunction
and dismissing the case. If the appeal il
sustained, and the order of the judge below
in dissolving the injunction is aunulled, the
effect will be to reinstate the in junction.
In order to arrive at this conclusion, the
court must pass upon two questions-frst,
that the injunction was properly issued
second, that there was no cause for dis
missing the suit. If, on the other hand,
the court should decide in favor of the ap-
pellees, then the suit is out of court end the
litigation is ended.
Ishall first address myself, may it please
the court, to the consideration of the points
made by the counsel for appellees in his
motion to dismiss this appeal But 1 will
remark upon the discrepancy which seems
to appear between the record as brought
up and the record of the court below. Your
honors will remember that when the case
was called for argument yesterday. counsel
for the appellees presented to the court
motion, and we consented that this judg-
ment, or what purports to be sjudgment,
which seems to have been signed, should be
filed in the record. The record, as pre-
sented to the counsel for the appellants by
the clerk of the court below, does not show
that this document was signed by Judge
ElmOre. That fact can not be imputed to
sny neglect upon the part of the appellants,
and it can not work to our injury, as this
court has frequently decided; but ! doubt
very much. if the court please, whether this
instrument car be considered as ajudgment
signed by the court below. 1t is motion
presented by the counsel for the respond
ents in the lower court for the dismissal of
the action, and the judge seems to have af
fixed his signature to it. The counsel, at
the request of Chief Justice Luelng, here
read to the court the document referred to-
Your honors will perceive, as l said before,
that this is motion to dismiss presented
by counsel for the respondents, to which
the Judge seems to have affixed his sigma
ture. But your honors will take judicial
cOgpiZance of the practice and the customs
obtaining in the courts of this State, and
one of those customs is that when judy
ment is to be signed it shall be drawn up
by the clerk, either upon the petition or
upon piece of paper annexed thereto, and
shall be entered of record as a signed iudg
ment. Most of the courts have o judgment
book. The Eighth District Court had =
judgment book, and the entry should have
been made upon the docket of the court
that the Judgment had been signed by the
Judge. 1t seems from this record that no
such entry was made, and in making up
the record the clerk seems to have copied
the motion from the minutes of the court.
shall not, therefore, consider this as
Judgment signed by the gentleman then
presiding in the Eighth District Court, and
indeed the learned counsel for the appellees
did not seem to so consider it in his argu-
ment yesterday, for much of his learned
was addressed to showing that
the judge, who signed the judgment at our
and from which we have taken an
appeal, had no authority to act in the
promises. shall therefore discuss, may it
please the court, the points made in this
motion to dismiss. as if this discovery had
not been made.
The first ground urged by the counsel is,
that this judg is not such a iudgm ent
as Is required to be signed by the judge.
In answer, simply call your honors' atten-
ton to the decision of this court in the case
of Collerton ct ais. VS.. McCleary ct ais, re-
ported in Louisiana, $40. in which it was
said that an order dismissing q suit WHICH
would in effect operate as final Judgment
oOO"SSh WIZ psAUAoo ASiuA 10 phO
Of the judge.
The second ground is, that no Judgment
rendered by the late Eighth District Court
tor the parish of Orleans could be signed
by the judge of the newly created Superior
District Court for the parish of Orleans.
But, may it please the court, Judgments are
signed by judicial officers by virtue of some
provision of the law. Every Judge, under
the Code of Practice, is required to sign
dor nf nkn
dered by him; but if this provision were
not found in the Code of Practice, the fail |
ure to sign Judgment would not be fatal |
The law creating the Superior District |
Court for the parish of Orleans abolished
the Eighth District Court for the parish of |
Orleans, and declared that all the suits of a |
certain character then pending in the |
Eighth District Court should be considered |
as pending in the newly created court The |
Judge of the new court was authorized, en- |
powered and directed to 20 on with such |
causes as il they had been originally brought |
n this newly created district court; and the |
new Judge is authorized under that law to |
10 in IA case whatever "a judge of the court, |
rom which Il case may have been trans |
erred could have done in the premises. The |
udge of the Eighth District Court could |
lave signed this judgment, therefore the |
Judge OF the Superior District Court could |
ign it; or he, being recused under the |
'ales, another district judge called in could |
perform that function.
The third ground urged upon the atten-
ion of the court, at great length and with |
much ability, is that that portion of the act |
If tho Legislature creating the Superior
District Court, which authorizes the ap-
continent of the Judge, is unconstitutional
lull and void, and therefore b. l.. Lynch
lad no authority. acting in the place of
Jacob Hawkins, Reused, to sign such judg
nent. If the premises are correct, of
course the conclusion follows. l was in
crested in the discussion by the learned
counsel of the question as to what consti.
utes an officer de factO, and | must say to
he court that ! do not greatly ditfeg with