State ex rel. Regan v. Judge of the First City Court of New Orleans ( 1884 )

The opinion of the Court was delivered by

Poché, J.

Relators, who are husband and wife, complain that in a suit pending before the respondent, a final judgment was rendered against them, in their absence, and without service of notice of trial.

They stated that, although notice was served on them on the 10th ol November, 1884, informing them that the trial was fixed for the 13th of the same month, the case was called for trial on the 11th, and from that day continued to the 13th; and that on the 12th, one of the relators, Walter Regan, who had called at the court, was informed of that fact by the judge and by the clerk thereof, and that he was further informed by them, that no trial would take place before service of another notice of trial on the defendants.

The record of the case, which was sent up in obedience to our preliminary writ of certiorari, shows that notice of the trial for the 13th was duly served on the defendants, relators herein, on the 11th of November, and that on the 13th the cause was regularly tried, resulting-in the judgment rendered against the defendants.

The assertion that the case was called for trial on the 11th of November, and that on the next day, assurance was given by the judge and by his clerk to the relator, Walter Regan, that the case would not be called on the 13th or before additional notice would be served on the defendants, finds no support outside of the affidavit of that relator, and is flatly contradicted under oath by the judge and by his clerk.

The assertion is further and thoroughly negatived by the record itself 5 and no complaint is made by either relator of any untruth or omission in said record.

Under this state of facts we have no hesitation to conclude that no irregularity, illegality or injustice can be truthfully charged against the proceedings, and that this application is entirely devoid of any merit. We are compelled to earnestly discountenance all such applications.

It is, therefore, ordered that the preliminary writ herein issued be set aside,' and that the application for certiorari and prohibition be denied, at relators’ costs.