Yancy v. Womack , 1967 La. App. LEXIS 4924 ( 1967 )

LOTTINGER, Judge.

This is an eviction proceeding commenced by Effie Jane Gordon Yancy against Paul Womack under the authority of LSA-C.C.P. Arts. 4701 et seq. On March 16, 1967, a judgment was entered and signed in this proceeding in favor of the plaintiff, Effie Jane Gordon Yancy, and against the defendant, Paul Womack, condemning the defendant to vacate without delay the premises and to deliver possession thereof to the plaintiff. On the same day as the judgment, the defendant, Paul Womack, filed a “notice of intention to apply for writs of prohibition, certiorari, and/or mandamus”, at the same time, the Trial Judge signed an order suspending the execution of the eviction ruling for five days. On March 20, this Court stayed any further proceedings in this matter as far as the Trial Court was concerned, and on March 23, we granted a Writ of Certiorari.

On further studying this matter, we have determined that the Writ of Certiorari was issued in error. The defendant’s remedy, instead of being by a Writ of Certiorari, was by appeal, as provided in LSA-C.C.P. Art. 4735, which provides:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspen-sive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”

The defendant has a right of appeal as long as he can meet the requirements of LSA-C.C.P. Art. 4735, and the supervisory jurisdiction of this Court is not to be utilized as a substitute for the ordinary appellate process.

Therefore, for the above and foregoing reasons, the Writ of Certiorari issued by this Court under date of March 23, 1967, is hereby recalled, and the application for writs is denied.

Writ recalled and denied.