State ex rel. Beebe v. Judge of the Sixth District Court , 28 La. Ann. 905 ( 1876 )

Howell, J.

The plaintiff presented a petition and affidavit to the judge of the Sixth District Court for the parish of Orleans, setting forth various grounds for an injunction to restrain the sale of her property in executory proceedings at the suit of one J. P. Guinault. The judge, instead of granting or refusing the writ, authorized a rule on said Gui-nault to show cause why the injunction should not be granted as prayed for, and, upon hearing the said rule, refused the injunction. Whereupon plaintiff applied to 'this court for and obtained writs of mandamus and prohibition to compel the district judge to grant the injunction on her petition and stay all proceedings under the writ of seizure and sale pending this application. To these writs the judge answers that on a “rule nisi,” issued in the case of Marie L. Beebe vs. J. P. Guinault, under rules Nos. 21 and 22 of the district courts of the city, it was proved by counter affidavits and documentary evidence that the allegations of the petition for the injunction had no foundation in fact; that the affidavit of the petitioner was made by her from information without any personal1 knowledge of the facts sworn to, and, no bond being filed or tendered as required by law, the court, in its legal discretion, refused the inj unction-

The plaintiff, in her application to this court, alleges that on the trial of the rule in the lower court she was not permitted to introduce rebutting evidence, and reiterates the grounds for an injunction, one of which, she contends, entitles her to an injunction without bond, and she insists that, upon the showing made to the district judge, she was entitled of right to the writ, and that there is no law authorizing the proceeding called a “ rule nisi.”

Article 738, O. P., relied on by the plaintiff, enacts that “ the debtor against whom this order of seizure and sale shall have been rendered. may obtain an injunction to suspend the sale, if before the time of sale-lie files, in the court issuing the order, his opposition in writing, alleging some of the reasons contained in the following article, and of which her swears to the truth.”

The reason given in this instance is alleged fraud.

It has been often held that the writ of mandamus will issue only to compel the performance of a duty imposed by law, and in which no discretion is to be exercised. The issuance of an injunction is not such a duty. The judge is to exercise a sound legal discretion, subject, of ■course, to revision by this court in cases properly brought up. A mandamus, therefore, will not issue to compel an inferior judge to grant an injunction. This court is not vested with a supervisory control over all .inferior courts, so as to compel them to give remedies and do acts about which they have discretion. They may err in judgment, and even willfully, where such error can not be corrected by this tribunal. But the presumption is that the judge will do his duty in every case, and his failure to do so in some cases makes him responsible to another tribunal than this.

The plaintiff may be entitled to an appeal from the decision on the rule nisi, but we are not asked for a mandamus to compel an appeal. The questions as to the legality of the proceeding by rule, the refusal to hear rebutting evidence, and the validity of rules twenty-one and twenty-two of the district courts are not properly before us in this proceeding. Ours is appellate jurisdiction only, and to be exercised in the mode prescribed by law.

It is therefore ordered that the application for the writs of mandamus and prohibition herein be dismissed at plaintiff’s costs. •