Michigan Wisconsin Pipe Line Co. v. Fruge

• Decision Date: 29 June 1967
• Docket Number: No. 2139,2139
• Parties: MICHIGAN WISCONSIN PIPE LINE COMPANY, Plaintiff-Relator, v. Eula Mae FRUGE et al., Defendants-Respondents.
• Court: Court of Appeal of Louisiana — District of US

Page 672

201 So.2d 672

MICHIGAN WISCONSIN PIPE LINE COMPANY, Plaintiff-Relator, v. Eula Mae FRUGE et al., Defendants-Respondents.

No. 2139.

Court of Appeal of Louisiana, Third Circuit.

June 29, 1967.

Writ Granted June 30, 1967.

Shotwell & Brown, by Burt W. Sperry, Monroe, Edwards, Edwards & Broadhurst, by William C. Broadhurst, Crowley, for plaintiff-relator.

Pugh, Buatt, Landry & Pugh, Aaron & Aaron, by J. Donald Aaron, Jr., Reggie & Harrington, by T. Barrett Harrington, Crowley, for defendants-respondents.

EN BANC.

PER CURIAM.

This matter is before us on the plaintiff's application for supervisory relief.

The plaintiff, a natural gas company, filed some ten expropriation suits in connection with the construction of a pipe line planned to be placed in service by September 1, 1967. The trial court denied the plaintiff's motion to fix these cases for trial during July and August of 1967.

The plaintiff applies to this court for supervisory relief, urging the necessity for immediate trial of the suits and further contending that the trial court abused its discretion by refusing to hear the expropriation cases until September. In so arguing, the plaintiff pipe line company relies upon the statutory provision set forth at LSA-R.S. 19:8: 'Expropriation suits shall be tried in term time or in vacation and shall be conducted with the greatest possible dispatch. Judgments rendered in vacation shall have the same force and effect as those rendered in open court.'

Succinctly, the plaintiff-relator applies to supervisory powers relating to the power of the appellate court to require performance of some duty plainly imposed by law, in the absence of any other adequate remedy. See Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 427 (1964).

We have ultimately concluded that we will deny the application upon the following principle: This court will not exercise its supervisory jurisdiction when, due to the element of time, any judgment which might be rendered by it could not become effective to afford relator the relief sought.

In this connection, we note that the application was filed in this court on June 28, 1967. We are disposing of it, after full study, on the following day, June 29. Nevertheless, we think it to be virtually impossible, if we Do grant supervisory writs, for a judgment of this court, if opposed, to become effective prior to September, even if we Do order trial to be fixed at available dates during July and August.

Until recently, a judgment of an appellate court under its supervisory jurisdiction was (in the absence of a stay order) regarded as executory immediately and without any delay to apply for rehearing, since the judgment was rendered under supervisory jurisdiction conferred plenarily by the state constitution, not under appellate jurisdiction regulated by any statute. Davis v. LeBlanc, 139 So.2d 224 (La.App. 1962); 23 La.L.Rev. 390 (1963); 38 Tul.L.Rev. 442--443 (1964). Cf. also: In re Lindner, 122 La. 683, 48 So. 150 (1909); 34 Tul.L.Rev. 165, 169 (footnote 27); Reporter's Comment, Article 2201, Louisiana Code of Civil Procedure.

However, in several per curiam opinions our state Supreme Court has recently indicated that the exclusive remedy for review of court of appeal judgments rendered by exercise of the supervisory jurisdiction is provided by Section 11 of Article VII of the Constitution (formerly thought applicable only to review of appellate-jurisdiction judgments). Pelloat v. Greater New Orleans Expressway Commission, 248 La. 122, 176 So.2d 452 (1965); ASP, Incorporated v. Capital Bank...