New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-08-05
Third District Court.

| LIE lOiiGWlng Important judgment las
been rendered in the Third District Court,
the Hon. Edward Meunier, Jr.. presiding
| State Of Louisiana ex rel. ?. F. Kendall
| VS.. the Fourth Justice OF the Peace for the
! parish of Orleans-Application for writ OF
prohibition.-ln his petition the relator al
leges that on the fifteenth Of June last, he
! applied to the honorable the Sixth District
| Court for the parish Of Orleans for respite
| and has filed his schedule as required by
| law, on which schedule the names of Bree-
| dow & Fry, a commercial firm at New Or
| leans. have been placed among those of his
| creditors. that by order OF said hOnorab bIe
| the Sixth District Court his creditors have
been convened before a notary public, anG
all proceedings against his person and
property have been stayed. Relator fur
ther alleges that said Breed0w 4, Fry have,
in violation and disregard OF the order OF
the Sixth District Court, instituted a suit
for the sum Of 500 against him before the
Sixth Justice Court for the parish Of Or
leans. and caused to be saqueslered a lot Of
bricks making part OF the assets men
toned, and described on his clan: and the
said relatOr pr2ys that writ Of prohibition
issue forbidding said sixth justice Of the
peace to proceed any further with the suit
instituted against him by said Breedow &
Fry.
The respondent alleges. as a matter Of
defense to this action, tnat the Sixth JUS
tice Court has acted within the extent. and
not beyond, of its jurlsGIctlor: that Bree-
dow & Fry are the relator's creditors with
a privilege of vendors ON the property Sc.
suestered, and can not, as such, be CON-
PEELED to grant any respite, nor can they be
controlled in the exercise of their legal
rights by the relator's proceedings for re-
spite.
This case presents two questions for the
consideration of this court. Flrst-Is the
order Of the honorable the Sixth District
Court, staying all proceedings against the
person and property of the relator. binding
upon his privileged creditors! Second-In
case Of affirmative, is the writ of prohibit
ton herein prayed for the remedy pointed
out by law in this controversy!
]. The order for stay of proceedings
against the person and property Of debtor
who has applied tor a respite is binding
upon all his creditors, as well privileged
and mortgage creditors as ordinary credi-
tors, and that order ceases but with the
granting of the respite. Therefore, the
privileged creditors, althoug not bound to
abide by the terms of the respite agreed to
by the majority Of the creditors in number
and amount (unless said privileged credi-
tors have voted in the affirmative) can not
iudicialiy enforce their rights against their
debtor and seize, under article 1856. r. C.
c., the property affected to their privilege
until after the respite Is tinall y granted. If 1
the respite is refused, then the cisSio bono
ram, or rather the proceedings in bank
ruptcy ensue, and all the claims, whether !
privileged or ordinary, must be cumulated
and settled contradictorily among the
creditors before the court sitting in bank.
ruptcy. l. N. S. 24O, "a A. r. 359, etc.
,. The writ of prohibition is not one of
right, but within the sound discretion Of
the court vested with appellate Jurisdiction;
and to authorize that writ there must be
clear usurpatiOn Of jurisdiction. Code Of
Practice, article S46; A. r., volume twelve,
page 5l3.
In the proceedings complained OF by the
relatOr, and instituted against him by Bree-
dow Il Fry before the Sixth Justices Court,
tk justice Of the peace has committed no
dSdrpatiOn of power. At the time of the
institution of the suit by Breedow & Fry
against the relator, the justice of the peace
was and is still now vested with jurisdiction
over the case, as we'll ratiOne n0te,f0 as
rationc personoe and domiccIt;, and the
order of the honorable Sixth District
Court staying all proceedings against the
person and property of said relator does
not nor can not divest the Sixth Justices
Court OF its Jurisdiction in the premises;
bat said order merely suspended the exer-
else of that jurisdiction till the granting of
the respite. mo writ of prohibition will
issue to prohibit the judges of an inferior
tribunal from proceeding further in the
cause where it is shown that he is vested
with jurisdiction over the case. 80 A. f.,
III; 20 A., 81. l am, therefore OF opinion
that the writ of prohibition herein prayed
for by the relator can not issue. The order
Of the honorable Sixth District Court must
be respected and obeyed by the respondent
herein, and respect and obedience to the
same shall be enforced by this court upon
the relator resorting to the remedy pointed
out to him by the law, which is an applica-
ton by way of iniunc.ion.-24 A. r., $50.
Writ OF prohibition refused