State ex rel. Henderson v. McCrea

• Decision Date: 01 January 1888
• Docket Number: 10091
• Citation: 3 So. 380,40 La.Ann. 20
• Court: Louisiana Supreme Court
• Parties: THE STATE EX REL. THOMAS HENDERSON v. JOHN McCREA, JUSTICE OF THE PEACE FOR THE SEVENTH WARD, PARISH OF ST. BERNARD

3 So. 380

40 La.Ann. 20

THE STATE EX REL. THOMAS HENDERSON v. JOHN McCREA, JUSTICE OF THE PEACE FOR THE SEVENTH WARD, PARISH OF ST. BERNARD

No. 10091

Supreme Court of Louisiana

January 1, 1888

APPLICATION for Certiorari and Prohibition.

Sam. Henderson, Jr., for the Relator.

OPINION

BERMUDEZ, C.J.

This is an application for a certiorari and for a prohibition.

The complaint is that the justice of the peace has illegally set aside two final judgments in favor of the relator, on which executions had issued and seizure effected; that, in the absence of the plaintiff, he has, on a new trial granted rendered a judgment on evidence heard in favor of defendant and by default against plaintiff, for the costs, liquidated at $ 20 thereby, and that on this last judgment execution has issued; under which, property of plaintiff has been levied upon and advertised for sale.

The charge is, therefore, that the proceedings are irregular and that the justice has exceeded the bounds of his jurisdiction.

In the return, it is urged, that the remedy sought cannot be allowed in an appealable case and that the justice had a right to grant a new trial, which was asked seasonably.

The first objection is obsolete and utterly groundless. Under Article 90 of the Constitution, this Court can exercise its supervisory powers over all inferior courts, in all cases whether appealable or not.

This has been so frequently decided, that pleas of that character have become legal nuisances.

The transcript of the proceedings before the justice of the peace show that the judgments, to which the relator refers, were not rendered in the presence of the parties and were not notified to the defendant, as is required by article C. P. 1139 on the subject of justices of the peace.

It is only where the judgment is rendered in the presence of the parties, that notification may be dispensed with; and it is only where the judgment is thus rendered, or notified, that the delay to make it final begins to run.

Reliance on Act No. 24 of 1876, amending article 575 C. P. and dispensing with notice where answer has been filed and citation personally served, can afford relator no relief, as it relates to district courts and not to justices of the peace. State ex rel. R. R. Co. vs. Hufft, 39 Ann. p.

Hence it follows that the executions issued prematurely and that the defendant, being in time, could apply for a new trial.

Independently of any prayer for such relief it was discretionary with the justice, as it is with all judges, to have set aside his previous findings if he thought them erroneous and to have reheard the cases.

The transcript does not show at whose instance the cases were refixed for trial; but...