States v. Judge of Fifth District Court , 15 La. Ann. 34 ( 1860 )

Merrick, O. J.

J. B. Houghton has presented a petition to this court, praying for a writ of certiorari, under Art. 857 of the Oode of Practice.

He alleges, that he is Constable of the First Justice’s Court of this city; that by virtue of twenty-six different writs of provisional seizure, he seized on the 9 th inst., and took into possession the steamboat Ashland, within the jurisdiction of said Justice; that on the 14th inst. a rule was served upon him from the 5th District Court of New Orleans, in the case of W. W. Knowles v. Captain and Owners of the Steamer Ashland, requiring him to show cause why he should not surrender the said steamboat to the Sheriff, who had levied an attachment upon the same, or in default thereof, be fined and imprisoned for contempt of the authority of the court; that he appeared and answered said rule, and showed good reasons why the same should not be made absolute, nevertheless, the rule was made absolute; that Knowles’ demand is over three hundred dollars; that he moved for an appeal from the order against him, but his appeal was denied him. He avers, that said order is void, within the meaning of Art. 857 0. P.; that petitioner is only amenable to the jurisdiction of said First Justice's Oourt, and that the Fifth District Oourt has no control over him, nor power to revise the orders or judicial proceedings of such Justice, or to interfere with the execution of the same; that he is not bound to obey the order of the Fifth District Oourt; that said court was not competent to make such order, and had no authority to fine and imprison petitioner; that petitioner refused to deliver said steamboat to the Sheriff, nevertheless the Sheriff took out of petitioner’s possession the said boat on the 19th inst.

He prays that the District Judge may be ordered to send a certified copy of said proceedings to this court, to the end that the validity of said order may be inquired into aud ascertained, and that said Judge be enjoined from further proceedings until judgment shall have been pronounced thereon, and for general relief.

When a Constable has seized property under a writ emanating from a Justice of the Peace, his possession is that of the law. 14 An. 503. He acquires such a qualified interest in the property, as to be able to protect his possession by calling to his aid the judicial power, when needed. Phillips’ Digest, p. 105-106, secs. 4, 7,11; 6 R. 102 ; Sew'ell on Sheriffs, 429.

It would seem then to follow, that where an attempt is made to deprive him of his possession by an order of court, that ho is entitled to appeal from such order if the case be an appealable case. 8 An. 43.

We think the petitioner, under his showing, was entitled to an appeal from the order requiring him to surrender the steamboat to the Sheriff, Being entitled to an appeal, the present form of proceeding is inadmissible. O. P. 858.

It is, therefore, ordered, that the petition for a writ of certiorari be dismissed, at the costs of petitioner.