Keiffe v. La Salle Realty Co.

• Decision Date: 25 April 1927
• Docket Number: 28567
• Court: Louisiana Supreme Court
• Parties: KEIFFE v. LA SALLE REALTY CO. In re ITEM CO., Limited

112 So. 799

163 La. 824

KEIFFE v. LA SALLE REALTY CO.

In re ITEM CO., Limited

No. 28567

Supreme Court of Louisiana

April 25, 1927

Writ perpetuated and made peremptory.

Deutsch & Kerrigan, of New Orleans, for Item Co., Limited.

Theo. Cotonio, of New Orleans, for La Salle Realty Co.

OPINION

BRUNOT, J.

This is an application for a writ of prohibition to restrain the judge of Division E of the civil district court of New Orleans from enforcing a subpoena duces tecum which was directed to, and served upon, relator, upon the motion of the defendant in the above numbered and entitled suit. This motion and the court's order thereon are as follows:

"On motion of defendant, Theodore Cotonio, of counsel, and on suggesting to the court that on the trial of this cause certain books and papers in the possession of the Item Co Limited, publishers of the Daily Item, in the city of New Orleans, said books and papers consisting of the advertisement for delinquent state taxes for the year 1922 published in said newspapers in the months of August and September, 1923, are material and necessary to mover; and that the owners of said newspapers should be required to produce same in court.

"It is ordered by the court that the Item Co., Limited, of the city of New Orleans, do produce in open court on Thursday March 31, 1927, at 10:30 a. m., and on such other day or days that this case may be continued to, its files showing the advertisements by the state tax collector for delinquent taxes of 1922; said publications having been made in the months of August and September, 1923."

The service of the court's order upon relator was followed by the application to this court for a writ of prohibition and for an order directing the judge to show cause why the writ should not be perpetuated. Relator based its application upon four grounds, the substance of which are: That relator is a corporation, and a subpoena duces tecum must be directed to some officer, agent, or servant of the corporation; that the motion for the subpoena duces tecum does not set forth the necessity for the order; that the motion and order show that other adequate sources for obtaining the information sought were open to mover; and that relator is ordered to produce printed copies of newspapers which cannot lawfully be the object of a subpoena duces tecum.

Upon considering the application, this court granted the writ of prohibition, as prayed for by relator, and ordered Hon William H. Byrnes, Jr., judge of division E of the civil district court of New Orleans, to show cause on April 7, 1927, why the writ of prohibition should not be perpetuated and made peremptory.

The learned judge did not file a return herein, but the La Salle Realty Company, for exception and return, says that this court is not vested with jurisdiction to determine relator's application, for the reason that relator is not a party to the suit out of which this application grew; that relator has no interest in, and cannot be affected by, any judgment that may be rendered in said suit; that the application does not contain any substantial averment of injury or damage to relator in excess of $ 2,000; and that relator has not exhausted all efforts for redress in the court a quo.

On the issues stated, the matter is submitted for final consideration. We will first dispose of the contentions of respondent La Salle Realty Company. The respondent has evidently confused the general supervisory powers of this court with its appellate jurisdiction in civil suits. This court has consistently held that its supervisory powers must not be confounded with its appellate jurisdiction. In the exercise of its supervisory powers, the court is concerned in the prevention of abuses or illegal acts, regardless of the amount involved, and its jurisdiction must be tested from that standpoint alone.

With reference to the question of prematurity which is urged by respondent, it is the general rule that applications for writs of prohibition will not be entertained, unless the appropriate method to obtain relief is first resorted to in the lower court. Exceptional cases, however, have been presented, in which this court ex rei necessitate has refused to apply the rule.

In this application it is interesting to note that, in so far as our research has disclosed, this is the first time an application for a writ of prohibition has been presented to this court by a relator who is a wholly disinterested and perfect stranger to the litigation which gave rise to it. Under these circumstances relator has no alternative. It must comply with the order or subject itself to contempt proceedings, from which there is no appeal. Therefore, if we find that the order complained of was illegally and improvidently issued as contended by relator, we think this is an additional reason for reaffirming the recent ruling of this court...