The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-08-06
THE NEW CANAL CASE.
Justice Mari Refuses TO Issue Writs
OF Mandamus and Prohibition.

Fifth District Court-On petition for man
damus and prohibition.
The original suit was brought to have an
nulled the lease Of the New Canal, the shell
road on It's border. and the appurtenances,
and to recover possession of the property.
The lease was granted by the State to Rich
ard Taylor, now deceased. for the term Of lif-
teen years, of which some twenty months re-
main.
In accordance with the prayer of the pc
tition the sequestration Of the property was
ordered, and the testamentary executor or
Taylor moved to have the order set aside on
giving bond In such amount as might be fixed
by the court.
The suit was against the succession of Tay-
Tor alone. No money Judgment was demand
ed, and there Is nothing in the petition upon
which the Judge could estimate the amount
Or the bond. He, therefore, referred the esti-
nation to experts, one selected by tho State
and one by the executor.
The expert selected by the State made his
estimation on the basis Of the revenues to be
realized and the injury to the property from
dilapidation, assuming that defendant would
continue In possession for the remainder Of
the term and would endeavor to derive the
largest possible revenues from the property
with the least expenditure OF money, and
would, therefore, fail To keep 1t In repair
The expert chosen BY the executor protested
that the estimation to cover possible diapida-
ton was excessive, but he assented to the
amount fixed In order to avoid further ex-
pense, delay and loss to the succession.
On the coming In OF this report the Judge
tion be set aside on the defendant giving bond
I'm the sum Of $lO2 All CD, the amount thus
fixed hy the experts.
On the eighteenth Of July, two days after
the granting OF this order, the State took u
rule Oh defendant to show cause why 1t should
not BIZ vacated and the bond rendered by de-
PENDANT be rejected. and the amount of the
security to be given by defendant to be fixed
Mt $25o.O00, on the ground that the amount
required, Slo2, 43i go, is utterly inadequate TO
protect plaintiff; that the bond Is informal
Irregular, insufficient and not such as the law
requires "and that the delivery Of the prop
erty to defendant under bond such as is re-
quired by said order and such Us is rendered
will work irreparable damage and injury to
plaintiff.
By Judgment Of twenty fourth of July tho
court refused to vacate tine order OF the six
teenth, and dismissed the rule of the
eighteenth of July. Thereupon the State
filed petition alleging that The amount OF
the bond required Is utterly inadequate to
protect petitioner against the losses which |
may arise from q misrepresentation OF the
revenues OF the property stquesterad
and from the ruin and dilapidatiOn which |
may ensne from neglect on the part OF de
PENDANT and that said order or
Judgment will work irreparabIe injury or
damage TO petitioner. Wherefore suspen-
siye appeal ~ prayed for.
The court refused to grant the appeal, and
plaintiff applied for mandumns to compel the
granting of the appeal, and Tor prohibition to
frF hnr b.,r
of sixteenth Of July.
On such an application rs this, which must, |
In vacation, be passed upon by one Of the jus
tices alone, and not BY the court, the question
Is not whether the court Of original iurisdic-
ton erred In its appreciation ct the facts, or
lii applying the law. but whether the case
presented IL such as requires and authorizes
the granting OF the wrts demanded, IN order
to prevent any wrong and Injustice.
may premise that the appeal seems to
me by the terms of the petition to be de- |
manded from the Judgment or order OF the
twenty fourth OF July, refusing TO vacate the
"petitioner Is aggrieved BY the interlueutory
order or Judgment Of this court, rendered iii |
this cause On the twenty-iourth day or July, |
1879, by virtue Of which the defendant, ~ B. |
Trist, testamentary executor of II. Taylor, Is |
or the other defendants are allowed aud per-
mitted To dissolve the sequestration herein |
issued on giving bond la the sum of $l02-
AL Co." "A court might well hesitate to sus~ |
another or or of subsequent date, hut the
petition In this case compeis me to inquire
whether the enforcement Of the order OF the
sixteenth Of July shall be prohibited. and | |
must consider this question upon the facts as
presented by the record, without attempting
TO review, or revise, or affirm the orders OF
the District Court.
The right Ut defendant In sequeetration to
have the mandate or order OF seauestration
oct aside on giving bond In such sum as the
judge may determine and fix Is absolute. 1t
cannot be denied; and 1t Ii not questioned ia
this case. The only complaint Is that the
amount of the bond required is not sufficient.
As u general rule an appeal lies from final
Judgments Gully. Where the matter IN cOntro-
versy falls within the jurisdiction Of the ap
pellate,, tribunal the right t., appeal from
a any na o. uPPf%s 3d. Z ths may swss
appeal from all iuterlocutory judgments
arhsn such judgments mag cause him
an irTepdr0bte ayry." .. p. 5G6 The
right to appeal FROM an interlocntory judy
ment Is, therefore, not absolute; it depends
In every case upon the condition that such
Judgment may cause an lrreparable injury to
the party seeking lief BY appeal. The
Judge of original jurisdiction is compelled TO
inquire, whenever an appeal is demanded
from an interlocutory judgment, whether
from the nature of the Judgment ana the
facts Of the case 1t may cause an lTreparableI
injury g the party complaining. Before one
OF the Justices of the Supreme Court inter-
feres with the interlocutory orders of a Dis {
trict Court. he must determine, on the record {
presented. on the case made. whether, in his
Judgment. the order or judgment complained
OF may cause All lrreparable injury.
On the twelfth OF July, pending the appli- s
cation of defendant to bond, the State ''eug-
costing that tue decision to be rendered IN |
this cause must depend on the condition OF
the said property at the date Of the institl- I
tion Of the suit and on showing that the |
defendants o. some Other parties are daily ed {
gagged in digging. dredging, repairing and
retaining the SAID canal, ANA other property, I
thus rendering it difficult if not impossible to
ascertain the exact state and condition OF the {
same at the date of the inception OF this suit" i,
moved for anu obtained an order appointing
a Commission Of three civil engineers to (
serve as experts to examine aud ascertain and |
report, at as early day as possible, the exact
state and condition of SAID canal and Other
property, and especially such condition as I,
compared with the condition In which the