State ex rel. Ludham & Burnham v. Todd

• Decision Date: 01 January 1900
• Docket Number: 13,725
• Parties: STATE EX REL. LUDHAM & BURNHAM v. DAVID TODD, JUDGE AD HOC
• Court: Louisiana Supreme Court

28 So. 886

104 La. 241

STATE EX REL. LUDHAM & BURNHAM v. DAVID TODD, JUDGE AD HOC

No. 13,725

Supreme Court of Louisiana

January 1, 1900

ON APPLICATION for Writs of Certiorari and Prohibition.

Andrew Thorpe and Thomas H. Thorpe, for Relators.

Respondent Judge pro se.

Broussard Dulaney & Dunbar, for Mr. and Mrs. R. J. Ross, Respondents.

OPINION

NICHOLLS C.J.

A certified copy of the record referred to in the pleadings was, on application of relators, ordered to be sent to this court, and the respondents directed to show cause why the writ of prohibition prayed for should not issue.

This order issued on allegations that relators were plaintiffs in the First Justice's Court of the parish of Iberia, in the suit entitled Ludham & Burnham vs. Mrs. R. J. Ross and Husband; that said suit was filed on the sixth day of July 1899, and was upon a claim for seventy-one dollars and seventy-one cents for work done and material supplied for the repair of a building; that on the 22nd of July, 1899, an answer was filed by defendants; on January 2nd, 1900 judgment was entered for plaintiffs for seventy-one dollars and seventy-one cents, with recognition of privilege for work done and material supplied; January 6th, 1900, notices of judgment were served on the defendants; January 17th, 1900, a fieri facias was issued and the property seized under the writ was sold by the constable; September 15th, 1900, defendants moved for a devolutive appeal and an order was given granting the appeal, returnable to the Nineteenth Judicial District Court, Iberia parish, "at its regular session"; September 25th, 1900, an appeal bond was filed; September 27th, 1900, citations of appeal were issued and served on relators commanding them to appear in the District Court and answer the appeal, "within three days after the convening of said court at its next regular term, to begin on the first day of October, 1900"; October 23rd, 1900, the transcript of appeal was filed in the District Court; same day Honorable T. D. Foster, District Judge, recused himself and appointed David Todd, Esq., judge ad hoc, who qualified as such; same day, on motion of appellants, the case was set for trial for the 20th of November, 1900, with reservation to appellees of the right to file any preliminary pleas prior to November 10th, 1900; October 30th, 1900, appellees filed a motion to dismiss the appeal upon the grounds: First, that the transcript was filed too late, and second, that appellants had acquiesced in the judgment; November 2nd, 1900, the judge ad hoc overruled the motion to dismiss the appeal.

That the appellants did not apply for or obtain an extension of the time in which to file the said transcript beyond the day fixed in the order and citation of appeal; that the regular term of said District Court occurring after the granting of said appeal began on the 24th day of September; that twenty-two days elapsed between the date on which the citation of appeal commanded the appellees to appear in said court and answer thereto and the date on which said transcript was filed in said court, and during said time no extension of time was applied for or obtained for the filing of said transcript.

That by the failure of the appellants to file the transcript of appeal within three days after the beginning of the term of court, on September 24th, 1900, or at most, within three days after the first day of October, 1900, the date of the term fixed in the citations of appeal, the appeal was abandoned and the judgment became final, and that the District Court was without jurisdiction to proceed further in said cause.

That the said David Todd, Esq., judge ad hoc, and the said Mrs. Ross and Husband, defendants in said judgment, are about to proceed and will proceed illegally and to the prejudice and injury to the rights of relators to try said appeal unless restrained and prevented by the order and inhibition of this honorable court, that said proceedings will be nullities, and for such illegal action relators are without remedy by appeal.

In the answer to the rule the judge averred that the record sent up showed that after the judgment in the Justice of the Peace Court against the defendants in the suit aforesaid (on January 2nd, 1900), that an appeal was taken to the District Court on the 15th September, 1900. Bond was furnished on the 25th of the same month and there was citation of appeal served on appellees on the 27th of September, 1900.

The appeal was filed in the District Court on the 23rd of October, 1900. Respondent was then appointed judge ad hoc to try the case, as the presiding judge had recused himself.

There was a motion to dismiss the appeal made by the appellees on the ground that the same had not been filed in time in the upper court. This motion was overruled by respondent.

In thus ruling respondent claims to have exercised a discretion vested in the court by the law governing return of appeals from the Justice of the Peace Courts.

The only law directory to Justices of the Peace in the matter of returning appeals declares "The Justices of the Peace shall also transmit without delay to the office of the appellate court an exact copy, certified by him," etc. C. P. 1135.

Respondent, in the exercise of a reasonable discretion decided to entertain the appeal, and overruled the motion to dismiss. There was no other authority in law for the guidance of the court, and the appeal appearing to have been sent up and filed in the appellate court within a month from the date of the citation of appeal, the delay of the Justice of the Peace in transmitting the appeal did not appear worthy of notice.

Respondent further answering adopts the answer and argument of his co-respondents, and avers that the application for a writ of prohibition in the matter should be refused.

In view of the premises respondent prays that the application and petition of relator be refused and denied, and for general relief.

OPINION.

Relators who were plaintiffs in the suit of Ludham & Burnham vs Mrs. R. J. Ross and R. J. Ross,...