Gleason v. Wisdom

• Decision Date: 25 January 1908
• Docket Number: 16,968
• Citation: 120 La. 632,45 So. 530
• Court: Louisiana Supreme Court
• Parties: GLEASON v. WISDOM. In re WISDOM

45 So. 530

120 La. 632

GLEASON v. WISDOM.

In re WISDOM

No. 16,968

Supreme Court of Louisiana

January 25, 1908

Action by Jeremiah M. Gleason against Mortimer N. Wisdom. Judgment for defendant, and plaintiff, having been denied a suspensive appeal, applied to the Court of Appeal for writ of mandamus. Application by defendant for writ of prohibition. Application denied.

See 45 So. 282, ante, p. 374.

Charles Joseph Theard, Charles Payne Fenner, and Horace Generes Dufour, for relator.

Dinkelspiel Hart & Davey, Cage, Baldwin & Crabites, James Clarke Henriques, McCloskey & Benedict, and John Patrick Sullivan for respondent Gleason.

MONROE J. NICHOLLS, J., dissents.

OPINION

MONROE J.

Statement of the Case.

The case here presented by the petition and return is as follows, to wit:

Relator was appointed by the Governor to the office of supervisor of registration for the parish of Orleans, "vice Jeremiah M. Gleason [plaintiff herein] removed for cause," and plaintiff, alleging under oath that he had not been, and could not lawfully be, removed (there being no just cause shown or existing), and upon his giving bond as ordered, obtained from the district court a writ of injunction restraining relator from assuming and from interfering with him in the discharge of the duties of the office. Thereafter, at the instance of relator, the district court gave judgment setting aside the injunction as having been improvidently granted, and plaintiff, having been denied a suspensive appeal from the judgment so rendered, applied to the Court of Appeal for a writ of mandamus to compel the granting of the same. Thereupon relator applied to this court for a writ of prohibition, alleging that the appellate jurisdiction in the case was to be determined by the amount of the salary at stake, and that the annual salary of the office in dispute being $ 3,600, and plaintiff having been appointed in July, 1906, for four years, the Court of Appeal was without jurisdiction. Plaintiff urged that the question of jurisdiction had not been presented to, or passed on by, the Court of Appeal, and that its decision on that point would not be anticipated by this court; and, further, that he had been appointed for an unexpired term which will end in May, 1908; that the amount of salary involved is less that $ 2,000, and (being more than $ 100) that the case is within the appellate jurisdiction of the Court of Appeal. The prohibition having been denied by this court on the ground first stated, the Court of Appeal, after hearing the parties, made the mandamus peremptory; and, after praying for, and being denied, a rehearing, relator made the application now under consideration, being an application to this court to exercise its supervisory jurisdiction to review and annul the judgment so rendered by the Court of Appeal and to prohibit that tribunal from further acting in the case. The ground originally relied on, to wit, that the amount of the salary involved in the controversy exceeds $ 2,000, appears to have been abandoned, was not passed on by the Court of Appeal, and is not urged here; the ground upon which relator now relies being that a suspensive appeal does not, and will not, lie from the order of a district judge annulling and vacating an order of injunction which he believes was improvidently and illegally issued in the first instance; and that the action of the Court of Appeal in directing the said writ of mandamus to issue is contrary to, and in the teeth of, the decisions of this court in the following cases: Koehl v. Judge, 45 La.Ann. 1492, 14 So. 352; State ex rel. Lehman v. Judge, 46 La.Ann. 163, 15 So. 283; State ex rel. Kuhlman v. Judge, 47 La.Ann. 60, 16 So. 776; State ex rel. Keller v. Judge, 47 La.Ann. 61, 16 So. 663; State ex rel. Saizan v. Judge, 48 La.Ann. 1501, 21 So. 94.

Plaintiff (as respondent herein) refers the court to its decisions in the cases of State ex rel. Behan v. Judge, 32 La.Ann. 1276, State ex rel. Williamson v. Judge, 30 La.Ann. 314, State ex rel. Stackhouse v. Judge, 21 La.Ann. 152, State v. Judge, 19 La. 167, and other authorities, in support of the proposition that a suspensive appeal does lie from an order dissolving an injunction. He insists that the present application is premature; and he suggests that, if relator is entitled to any relief with respect to an erroneous judgment of the Court of Appeal, he should seek it under article 101, and not under article 94, of the Constitution. He further, and, in the event that the inquiry should proceed thus far, refers the court to several decisions as supporting his right to an injunction pending a judicial determination of the question of his right to the office in dispute, notably to the cases of Guillotte v. Poincy, 41 La.Ann. 333, 6 So. 507, 5 L.R.A. 403; Goldman v. Gillespie, 43 La.Ann. 83, 8 So. 880; Wheeler v. Fire Board, 46 La.Ann. 735, 15 So. 179; Sanders v. Emmer, 115 La. 590, 39 So. 631.

Opinion.

It will be seen from the foregoing statement that the question presented by relator's previous application was whether this court would prohibit the Court of Appeal from acting upon an application for a mandamus to the district court to compel the granting of an appeal in a case, which, upon the face of the application, appeared to be within its appellate jurisdiction; the objection (suggested in this court) to such action being that the case in question was not appealable to the Court of Appeal, because the amount involved exceeded $ 2,000. And the question so presented was decided in the negative, on the ground, substantially, that the power is inherent in every court to determine in any given case the question of its own jurisdiction, and that no court can be prohibited from acting upon a question which it is authorized by law to consider and decide. The Court of Appeal thereupon heard argument from opposing counsel, and, reaching the conclusion that it was possessed of the necessary jurisdiction, ordered that the district court grant the appeal, which is the subject of the controversy. Relator now urges that the conclusion so reached was erroneous; not because the amount involved exceeds the limit of the appellate jurisdiction of the Court of Appeal, but because (as it is alleged) "a suspensive appeal does not, and will not, lie from the order of a district judge annulling and vacating an order of injunction which he believes was improvidently and illegally issued in the first instance," from which premise it is deduced, logically enough, that the respondent court is without jurisdiction to consider and decide a case in which it has erroneously ordered that such an appeal be granted, and that it should be prohibited from so doing.

The trouble, however, lies in the premise. The Code of Practice provides that "one may appeal from all final judgments rendered in causes in which an appeal is given by law," etc., and that "one may likewise appeal from all interlocutory judgments, when such judgments may cause him an irreparable injury." And the Constitution confers on this court appellate jurisdiction in "all cases where the matter in dispute * * * shall exceed $ 2,000, exclusive of interest," and upon the Courts of Appeal similar jurisdiction in "all cases, civil or probate, when the matter in dispute * * * shall exceed $ 100, exclusive of interest, and shall not exceed $ 2,000, exclusive of interest." Code Prac. arts. 565, 566; Const. arts. 85, 98.

In a case recently decided it was said:

"It has many times been held by this court that its appellate jurisdiction, in a suit between contestants for public office, was and is based upon the salary or pecuniary perquisites attached to such office." State ex rel. Rogers v. Parsons, 120 La. 263, 45 So. 125.

In the instant case, relator having abandoned his original objection to the jurisdiction of the Court of Appeal, we take it that, as to the amount involved, the jurisdiction of that tribunal is conceded. We have, then, a suit between contestants for a public office, the whole purpose of which, so far as the plaintiff is concerned, is to secure him in the possession and enjoyment of the office until the question whether he or the relator has the better right to it shall have been finally decided by a competent court.

And, as that purpose will be defeated by the enforcement of the judgment dissolving the preliminary injunction obtained by him, the injury to result from such judgment will be irreparable, from which it follows that, according to the plain letter of the law, and whether such judgment be considered interlocutory or final, he is entitled to an appeal.

In the case of State v. Judge, 19 La. 167, 171, 172, it appeared that an injunction issued restraining the suing out of executory process on mortgage notes to the amount of $ 200,000; that the writ was dissolved on motion, with damages and that an appeal was allowed; that the suit was subsequently dismissed as in case of nonsuit, and that another appeal was taken on a bond for costs; that the district court thereupon ordered the seizure and sale of the mortgaged property; and that the plaintiff in...