State ex rel. Shaw v. Ellis

Decision Date18 November 1895
Docket Number11,881
Citation18 So. 636,47 La.Ann. 1602
PartiesSTATE OF LOUISIANA EX REL. JOHN T. SHAW v. HON. T. C. W. ELLIS, JUDGE OF THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, DIVISION "A"
CourtLouisiana Supreme Court

Submitted November 4, 1895

Rehearing Refused December 16, 1895.

APPLICATION for a Writ of Prohibition.

On July 18, 1895, a petition and notice of demand were served on relator in the case of George Montgomery vs. John T Shaw, No. 46,475, Division "A," of the docket of the Civil District Court for the parish of Orleans, being a proceeding by executory process. Upon said petition was endorsed an order for executory process, and was signed by T C. W. Ellis, Judge of the Civil District Court for the parish of Orleans, presiding in Division "A."

It is contended that said order was improvidently and improperly signed by said judge, for the reason that on July 3, 1895, he had adjourned his court without day, and departed from the parish of Orleans, and was only temporarily in the parish on July 18, 1895, when said order was signed by him. That said order was not signed at the court house, and was signed by the said judge while he was temporarily in the city of New Orleans, and not in the city for the purpose of holding court or exercising judicial functions.

The judge of Division "A" made return that on July 5 1895, he adjourned Division "A" of the Civil District Court sine die. That under the act of 1892 regulating the terms of said court, Divisions "B" and "C" remained open, the judge of Division "C" to act for Division "A;" that he left the city of New Orleans and returned on a visit, and not for duty, on July 18, and did not reopen Division "A" until September, when he began his vacation term, serving until October 20. That on July 18, the clerk's deputy brought him a petition for executory process in Montgomery vs. Shaw, with the statement that the judge of Division "C," doubting his power, had refused to sign the order after the allotment of the case to Division "A." That thereunder he signed the order, adding to his name the word "judge." That the words "of the Civil District Court for the parish of Orleans, presiding in Division 'A,'" alleged and referred to by the relator, had doubtless been stamped for use in anticipation that the judge of Division "C" would sign the order; that he was sure he did not add those words; that if he was in error, then the fact was that he was not then presiding, as his foregoing statements would show. The judge submitted that he had the power to sign said order for executory process, either in court or at chambers, under Sec. 1906 of the Revised Statutes. That the Act of 1892 regulating the terms of the Civil District Court would be unconstitutional, should it he construed to suspend his power as judge, when by its terms his division should be in vacation. That by that act two divisions were to be open and three divisions were to be closed. That if the judges present and...

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