The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-30
TIE COURTS.
SUPREME COURT DECISIONS.
wednesday. May 20, 1873.
the Justices.

By CHIEF JUSTICE MANNING.
No. 1923. Paet, Yale X Bowling vs.. Male
Cammack.-Rehearing refused.
No. 6o53 James Sharkey tutor, vs. Leslie
Notwithstanding refused
No. 4021 S. J. Font VS.. Jose Domingo
The petition for TeheariDg is written, winch
Ia permissible but rule nine requires that Ilie
statement of the points and authorities upon
which the applicant relies to support his peIi-
ton shall be printed.
complied with. and. therefore, the rehearlng
is refused.
No. 68ts. Succession of r. FL. Woods.-Rnle
Q of this court requires that printed state
Inents Of the points ana authorities upon
which the applicant for rehearing relies
shall be filed in support Of his written or
printed petition for rehearing This rule
has not been complied with, and, therefore,
the rehearing is refused.
No. 1853 State of Louisiana ex rel W. f.
Schwing. District Attorney, pro tenn. VS.. the
sheriff of the parish of Iberia ct ais.
On the fourteenth Of March 1873, petition
to test the eligibility of L. Fontelieu to hold
the office of district Judge. on the relation OF
w. f. Schwing, district attorney pro tenn,
ct al, in the absence Of the district attorney,
was deposited in the clerks office in the
the clerk deferred issuing citations, on the
pretext that Etc, the acting deputy, was 40,
sent, etc. On the sixteenth he stated he could
not issue citations, because the district attor,,
flPT nnl l1lSUEuCLbu MN Iob w Wv oc, hIh iitiA
withdrawn the papers from the Office,
y The district attorney himself. on same
day, admitted he was in possession OF the
papers and refused to restore them to the
clerks office, and subsequently sued out q
rule to discontinue the suits, which was made
absolute by the parish Judge, the district
Judge having refused himself. This rule was
&c parte and remains in his Office. 10 TINS
date these papers remain in his law office I'M
served.
Contemporaneously with depositing that pc
tition In the clerk s Office, a rule to recuSe the
district judge and the parish judge OF Iberia
was sued out before the Judge of the sixteenth
judicial district, and to transfer the case.
Service Of that rule was made on Fontelieu, In
the parish OF st. Mary and on the twenty,
third and twenty-fifth of March a partial trial
of 1t was had before the Judge Of the sixteenth
district No service having been made on the
parish Judge, an order was granted cont1nu.
ing the case to the fifteenth day Of April, and
commanding w. b. Merchant district attor-
ney, who had made himself party to the
rule by appearing and filing motion to dis
miss it, to restore the petition to the clerk s
tions thereon, and the sheriff to serve the
same, as well as the citations in the rule on
the different parties. From this order, in SO
far as it affects the district attorney, he and
FOnteleu have appealed. All the foregoing
facts appear from the transcript OF the rule
on file.
1t is also proved that Fonteeu, the parish
Judge, the sheriff and his deputy and Etc,
of r. S. Perry.l
Threats of the most lawless character, not
denied by respondents, have been made. (See
Cafferys and Perry's af1idavits9 The dis
trct attorney has on demand refused to re-
store'the petition to the clerk 8 office: (See
his answer, his testimony in the rule and
Perry's afIidavit) The clerk has refused and
omitted to issue citations, the sheriff has
omitted to serve papers deposited in his office
lSee Perry's affidavit)
Merchant has declared that he retained the
petition because he thereby gained an advan-
tage for Fontelieu. (See his answer and
Perry's affidavit and testimony in the rule)
He gave written instructions to the clerk not
, to issue any papers In any suit OF the State
VS.. FOntelieu, unless signed by him. (See his
answer and his evidence in the rule) He and
Fontelieu occupied the same Office (See his
testimony in rule)
It also appears that Etc was in the habit of
acting and signing as deputy Etc cr; swfar5
two other deputies Fontelieu, In the rule
page 20, says positively that Segura did not
have any deputy or other person than Etc IL
the office.
Under this extraordinary condition OF
things this mandamuS has been sued out
under the apprehension that otherwise the
appellate jurisdiction OF this court would bt
defeated by an unlawful combination.
The existence of an unlawful combination
between the officials Of the parish of Iberit
is expressly charged, and its object and ,pur
pose is averred to be to defeat and frustrat
the main suit The petition charges that the
ordinary forms and process Of law are of NJ
avail against this combination and conspira
cyrthat practical denial OF justice IS effect
the administration OF the law is brought int
contempt.
writ of mandamus was hence prayed to
be directed to the sheriff commanding him tC
serve the process upon the parish Judge anC
the clerk and other parties, which had been
] prayed in the suit of the State er relation
4 Schwing, district attorney pro tenn, VS.. Theo
dore FonteIieu, commanding the clerk of the
court OF Iberia to prepare all copies, cita-
tions, or other process in that case that We're
prayed for, and deliver them to the sheriff
for service-commanding the district attor
ney to deposit in the hands and custody o
the clerk of the iberia court the original pc
tition in that suit. The writ issued pro
vsionally, and now comes up on the answer
of the parties for hearing.
The whole question resolves itself into one
of jurisdiction. We have no original juris
dction, save in certain cases of habeas cor
pus. We issue the writ Of mandamus in ad
only of our appellate jurisdiction, and 1t il
urged that the writ is invoked here only il
aid of that jurisdiction, because Ii the diStric
attorney is not compelled by our writ to fill
the petition, and the clerk compelled by tn
same process to prepare and issue the neces
sary citations. copies, ETC. and the sheriff
likewise compelled to serve them-the suit
never can be tried, and an appeal can there
fore never be taken. The writ must there
lore DC issued, III Is argued, 10 ala InlS c0ur
in exercising jurisdiction over an appeal t.
be obtained IN future in a case, the issue o
which might be such that these relator
would not desire an appeal.
We have come to the conclusion that w
have no power to issue such writ of man
damus as is prayed; that it would be exercs
ing original jurisdiction, for which we hav
no constitutional warrant that the writ, Is
sued under such circumstances and for sue
purposes as is indicated in the petition, is no
in aid of an appellate jurisdiction, and 1t i
only when in aid Of that we can lawfully in
terpose to compel subordinate officials to per
form legal duties.
On the whole, we think it unfortunate tina
we are debarred from issuing the writ in thi