State ex rel. Marchand v. Judge of Civil District Court , 44 La. Ann. 190 ( 1892 )

The opinion of the Court was delivered by

Bermudez, O. J.

This is an application for a prohibition coupled with a prayer for a certiorari.

The relator complains that the District Judge has usurped juristion in the matter of the succession of Ernest Marchand, by appointing, after the succession had been closed, One DeBlois liquidator of the partnership alleged to have existed between him and the deceased, and by ordering, at his instance, the sale of property to pay the debts of the concern.

The relator avers that he was a partner of Ernest Marchand, was. appointed administrator of his estate; that his widow and heirs have been recognized and put in possession of the property left by him; that if DeBlois was entitled to be appointed liquidator he' should have brought proper proceedings outside of the mortuaria- and had the matter allotted, under the law, to one of the divisions, of the Civil District Court, which was not done; that the appointment made in the mortuaria is a nullity which carries with it that of the order of sale.

The District Judge returns, that the matter of the appointment of DeBlois was one growing out of the succession proceedings, which, under the rules of the Civil District Court, did not require any allotment; that the proceedings were carried on contradictorily with all-the parties concerned, who were cited, and appeared without declining to the jurisdiction; that, after hearing, a judgment was rendered on August 5, 1891, which was signed after the overruling of a motion for a new trial, making the appointment of the liquidator, from which no appeal has been taken.

The District Judge further urges that the relator has no interest,, as he avers that he is the discharged administrator of the succession of Ernest Marchand.

It is unnecessary to decide whether the appointment of a liquidator was or not properly made. It is a question which can not be raised and determined on this application for a prohibition.

It is manifest that the Civil District Court for the Parish of Orleans had jurisdiction over such a matter, and that if in exercising its powers, it has erred, the remedy is not by a resort to this court, under the provisions of Art. 90 Of the Constitution, but by an appeal, this being one, in which it can be obtained.

It does not appear affirmatively that the relator, in the proceedings for the appointment of a liquidator, ever excepted to the jurisdiction of the judge, and it is the settled jurisprudence of this court that prohibition will not issue, unless it appears that the jurisdiction was pleaded to and the plea was overruled. The relator has not appealed from the judgment and can not substitute the application for a prohibition, to an appeal.

The functions of the two remedies are glaringly different.

The omission to allot a civil case is not an absolute nullity. The allotment may be formally or tacitly waived and abandoned; and after this is done, the door for a complaint that it did not take place is effectually closed. This court has held differently in a criminal case. Hale vs. Adotto, 34 An. 1.

The failure of the relator to complain of the absence of an allotment, either by exception, seasonably set up, or otherwise, prevents him from pressing that irregularity here if it be a factor in this' matter.

The respondent urges besides that the relator is without interest, as he avers that he was discharged as administrator of the succession of E. Marchand; but the relator does not claim that in that capacity, or as an heir, or otherwise, that he is interested in the succession. He assumes the attitude, in his petition, of a co-partner, and complains that a liquidator was illegally appointed to take charge of the partnership in which he is concerned as a member.

The relator complains of the order of sale granted at the instance of DeBlois as liquidator.

It may be said that if this order is illegal the relator should have set forth its illegality and sought an injunction in the lower court, and that if that tribunal had jurisdiction to make the appointment of one to liquidate the partnership, it sui’ely had the power of ordering the sale of its assets to discharge its liabilities.

It does not appear that he has sought relief in that form below, and he can not be allowed to invoke the powers of supervision of this court in the present form, to supply that omission.

This sort of provisional relief should not emanate from this court, unless in very clear cases, in which a District Court has arbitrarily declined to grant it, in one of the instances in which, upon proper and full avex*ments, the law leaves no discretion to such court, but dictates the granting of the remedy, and where injury would evidently be sustained.

The relator has also applied for a certiorari.

It is unnecessary to give this application any extended attention.

The writ issues sometimes to test a, jurisdiction, and usually to ascertain, not the intrinsic correctness of the proceedings, but their intrinsic validity in point of form.

These questions have been considered. We have determined that if the allotment was irregular, the irregularity has been acquiesced in and ratified, and that the Civil District Court had jurisdiction and was competent to do the acts complained of, in the absence of any 'objection to the exercise of its powers in that respect, in the form in which it did.

It is therefore decreed that the preliminary orders herein made be annulled, and that this, application for a prohibition and a certiorari be refused.