State ex rel. Muslow v. Louisiana Oil Refining Corporation

• Decision Date: 03 December 1937
• Docket Number: 5467
• Citation: 177 So. 476
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE ex rel. MUSLOW v. LOUISIANA OIL REFINING CORPORATION (ARKANSAS FUEL OIL CO., Substituted Defendant)

177 So. 476

STATE ex rel. MUSLOW v. LOUISIANA OIL REFINING CORPORATION (ARKANSAS FUEL OIL CO., Substituted Defendant)

No. 5467

Court of Appeal of Louisiana, Second Circuit.

December 3, 1937

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge. On application to vacate order staying execution of judgment. Motion to vacate denied.For prior opinion, see 176 So. 686.

Blanchard Goldstein, Walker & O'Quin and Robert Roberts, Jr., all of Shreveport, for appellant.

John B Files, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

After denial by this court of its application for a rehearing, defendant sought to have the judgment herein rendered against it (176 So. 686) reviewed by the Supreme Court. Its application was denied by the Supreme Court on November 2, 1937, and the judgment thereby became final, so far as concerns jurisdiction of the state courts except as hereinafter discussed.

On November 17th, defendant filed in this court its verified petition for an order staying execution of said judgment. After reciting briefly in chronological order the history of the case to the denial of application for review, this petition avers, viz.:

"The Court in this cause held valid Act No. 34 of 1934 of the Legislature of Louisiana as against defendant's claim that the said statute, as applied in this case, was repugnant to the Constitution of the United States; and appearer is entitled to appeal the judgment herein rendered to the Supreme Court of the United States.

"Your appearer now shows that it intends to prosecute an appeal from the decree of this Court to the Supreme Court of the United States and that its counsel is now preparing papers to make effective such right of appeal; and that such intention has been communicated to Mr. John B. Files, attorney for Hyman Muslow, plaintiff and appellee. Notwithstanding these facts, defendant's undersigned attorney has been informed by the plaintiff's said attorney that such plaintiff intends to and will have execution issued upon the judgment herein before petition for appeal, assignment of errors, citation of appeal, jurisdictional statement and supersedeas bond, all required by statutes of the United States and the rules of the Supreme Court of the United States, may be prepared and presented to this Court for its consideration and action. Under the circumstances, this Court should enter an order herein staying execution for a reasonable time in order that such appeal papers may be prepared and presented to this Court for its consideration and action."

Upon this showing, on November 17th, an order was signed by this court granting stay of execution of thirty days. No bond was required to secure the order. The present application to vacate was filed November 18th, and hearing contradictorily thereon was had.

The motion to vacate is based upon the following conclusions of law set up therein, viz.:

"That this Court has no further jurisdiction in this matter for the reason that the defendant took the case out of the jurisdiction of this court on writs of review to the Supreme Court of Louisiana, and that upon the denial of the writ of review in that case, on the statement that the judgment of the lower court was correct, the record in the case is now remanded out of the Supreme Court and out of this Court into the District Court, for execution.

"That this court was without right or authority, after the judgment had become final and after this court had been divested of its jurisdiction, to issue any order in connection with said cause, and especially an order restraining the execution of a final judgment in the District Court of Caddo Parish, Louisiana.

"That, in the alternative, this Court was without authority to issue a restraining order without at the same time requiring security or bond to cover all damages as a result of said stay of proceedings."

Section 344, 28 U.S.C. A. (Judicial Code, §237, as amended), so far as pertinent to the issue raised that this court is without jurisdiction to sign or issue further orders in the case, reads as follows, viz.:

"A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of the United States, and the decision is against its validity; or where is drawn, in question the validity of a statute of any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity, may be reviewed by the Supreme Court upon a writ of error."

It will be observed that this statute vests in the United States Supreme Court power to review a final decree or judgment of "the highest cour...