State ex rel. Broussard v. Voorhies

• Decision Date: 15 November 1897
• Docket Number: 12,595
• Citation: 22 So. 880,49 La.Ann. 1562
• Court: Louisiana Supreme Court
• Parties: STATE EX REL. OSCAR BROUSSARD v. FELIX VOORHIES, JUDGE, AND J. H. GARY

22 So. 880

49 La.Ann. 1562

STATE EX REL. OSCAR BROUSSARD v. FELIX VOORHIES, JUDGE, AND J. H. GARY

No. 12,595

Supreme Court of Louisiana

November 15, 1897

Submitted November 2, 1897

ON APPLICATION for Writs of Certiorari and Mandamus.

ON APPLICATION FOR A WRIT OF CERTIORARI AND MANDAMUS.

The defendant, Gary, brought suit against the relator in the Second Justice's Court for the parish of Iberia, and on the 24th of May, 1897, obtained judgment in his favor for the sum of ninety dollars, with five per cent. per annum interest from the date of judgment until paid and costs.

On the 25th of May defendant, having furnished a bond for one hundred and thirty-five dollars, obtained a suspensive appeal from the judgment.

The record sent up recites, that "thereupon a notice and citation of appeal, of which the following is a copy, was issued:

NOTICE AND CITATION OF APPEAL.

J. H GARY

vs.

OSCAR BROUSSARD.

Second Ward Justice Court for the Parish of Iberia, State of Louisiana.

To J. H. Gary: Please take notice that the defendant, Oscar Broussard, in the above entitled action, appeals from the judgment therein made and entered in the Second Justice Court for the parish of Iberia on the 24th day of May, 1897, in favor of the plaintiff, for ninety dollars and costs, to the Nineteenth Judicial District Ward of this State, and that said appeal will come up for hearing and trial in said court at the next term thereof, to be held at New Iberia in the parish of Iberia.

This notice was served personally upon the plaintiff Gary on the 31st of May.

On the 16th of August a transcript in the case was filed in the District Court.

The first regular term of the District Court after the appeal was to commence on the 20th of September, 1897, and the appeal taken was returnable at that term.

It appears, however, that a special term of the District Court for the transaction of the civil business was ordered by the judge to commence on the 19th of August, and that the court opened upon that day under the order.

Upon that day (the 19th of August) the following agreement was signed and filed:

"Joseph H. Gary vs. Oscar Broussard.

"We the undersigned counsel, agree and consent to try the above entitled cause at the term of court now in session."

On the 20th of August the following motion was made: "Now into court comes the appellee and moves to dismiss the appeal herein because no legal citation or notice of appeal had been served on him, nor had there been any legal return of any such citation or notice of appeal." Whereupon he prayed for the dismissal of appeal at appellant's costs."

On the 14th of August appellant (relator), suggesting that the justice of the peace before whom said cause was tried, making said appeal returnable to the next regular term yet to be held, had issued a notice of appeal unaccompanied by the citation prescribed, and that it was necessary that the transcript be returned to his court to allow the making of the proper citation and service thereof, and that all necessary time therefor should be granted, moved the court for the return of said transcript to said justice's court to allow proper citation to issue, and for general relief.

The motion to dismiss the appeal, and that to return the transcript, having been argued and submitted and taken under advisement together, the court, on the 30th of August, made the following ruling:

"The agreement of counsel dated August 19, 1897, the court does not look upon as an appearance or a waiver of any rights by either party. Had the motion to correct the transcript been filed before the motion to dismiss, and within three days after the opening of the court, the demand of appellant would have been granted. As it was, it came too late. All rights are reserved to appellant for an appeal in accordance with law. On the same the minutes show that the motion to send back the transcript was overruled and the appeal dismissed at appellant's costs. Appellant applied for a rehearing, but his application having been refused, he applied to this court for relief under its supervisory powers, claiming that the action of the District Court was illegal and worked a denial of justice. He, in his petition, prays that writs of certiorari and mandamus and such other writs issue from this court as may be necessary to protect his rights, and that there be judgment annulling the ruling and decrees of the District Court, and that the District Judge be ordered to place the case on the trial docket for trial regularly as upon an appearance made by the appellees or in default of this that the District Court be ordered to grant further time to have the citation in such manner as may be ordered, the case being considered as properly on appeal suspensively.

The District Judge in his answer denied the right of relator to the relief sought. He called the attention of the court to the fact that the judgment had been appealed from suspensively. He declared that the right to appeal was not denied relator, but on the contrary, was specially reserved that he was not without a remedy in law, and that he could not with any color of reason charge the presiding...