Wilson Sporting Goods Co. v. Alwes , 204 La. 639 ( 1943 )

My opinion is that, although the failure of an applicant for a supervisory writ to comply with Section 7 of Rule XIII by mailing or delivering a copy of his petition to the judge whose ruling is complained of, and to the adverse party or parties, would be a good cause for this court to refuse to issue a writ of certiorari or a rule to show cause, the failure of the applicant to comply with the rule in that respect does not justify our recalling the writ and the rule to show cause, and dismissing the proceedings, after the writ has been complied with and the rule has been answered, and when the whole record is thereby submitted to this court for a final ruling.

The amendment of Section 7 of Rule XIII, so as to require an applicant for a supervisory writ to deliver or mail to the judge and to the adverse party or parties a copy of the petition to this court, was adopted on June 1, 1938. See 188 La. xxxix. Before the rule was so amended the applicant for the writ was required by section 2 merely to give notice to the judge, and to the opposing party or his attorney, of the intention to apply for the writ. See 136 La. xii.

The rules of court were revised on April 4, 1939, so as to embrace all amendments made up to that date; and, in the revision, Section 7 of Rule XIII was amended by substituting for the words "or for any other supervisory or remedial writ" the words "or for any writ except a writ of review to review a judgment of the court of appeal." And there was added to this section a paragraph declaring that this section [7] was not applicable to a writ of review to the court of appeal. The only purpose or effect of this amendment was to make it plain that Section 7 was applicable only to a supervisory or remedial writ, and not to a writ of review to the court of appeal, — the requirements for a writ of review being provided for in Section 5 of Rule XIII. See 191 La. xlvi.

Section 7 of Rule XIII was amended again on May 29, 1941, so as to permit the petitioner for a supervisory or remedial writeither to deliver or to mail to the judge, as well as to the adverse party or parties or his or their attorney or attorneys, a copy of the petition addressed to this court asking for the supervisory writs, 191 La. xli. Theretofore, although the rule permitted either the delivering or the mailing of a copy of the petition to the adverse party or parties or to his or their attorney or attorneys, the rule required the petition to bedelivered to the judge.

My opinion is that the relaxing of the rule, by permitting the copy of the petition to be mailed instead of being delivered to the judge, indicates that the intention was that the mailing or delivering of the copy of the petition should not be considered so sacramental as to nullify the granting of the writ of certiorari and rule to show cause, if the court should see fit to grant them without requiring a showing that the petition was served upon or mailed to the judge and to the adverse party or parties, or to his or their attorney or attorneys of record.

The purpose of the original amendment of the rule was not left to conjecture but is stated plainly in the amendment itself, thus: "in order that the judge or other officer, or the adverse party or parties, may submit immediately, any reason that he or they may have to urge in opposition to the petition." The use of the word "immediately" shows that the intention was to allow this court the option either to grant the writ of certiorari immediately, with a rule to show cause, and without awaiting an opposition from the judge or from the adverse party or parties, or to withhold the court's action on the petition and await the filing of any reason that the judge or the adverse party or parties might see fit to submit, immediately, why the writ or rule to show cause should not be granted.

The requirement that the judge and the adverse party or parties must file their opposition immediately, if they see fit to file an opposition at all, and the fact that the court is not obliged to grant them any time in which to file an opposition, or to "submit immediately, any reason that he or they may have to urge in opposition to the petition", leaves no doubt in my mind that the court is at liberty to waive the requirement of a delivery or mailing of a copy of the petition to the judge and to the adverse party or parties, and may grant the writ without having an affidavit showing the delivery or mailing of a copy of the petition. Therefore, when the court grants the writ of certiorari and the rule to show cause, without requiring an affidavit of the delivery or mailing of the copy of the petition, the court should not go back and rescind the order granting the certiorari and the rule to show cause, after the respondent and the judge have answered the rule, or have had ample opportunity to answer it, and after the whole record has been submitted to this court for a final ruling. It makes no difference, in my mind, whether the court, in such a case, grants the writ of certiorari and the rule to show cause inadvertently or with the deliberate intention of waiving the requirement of delivery or mailing of a copy of the petition for the writs.

There was no intention, by this amendment of Section 7 of Rule XIII, to have the whole case put at issue in this court on the mere application of the relator and the opposition thereto — if any opposition should be filed. The purpose of the amendment, as I understand, was to lessen the likelihood of our granting a writ of certiorari and rule to show cause in a case where we would not have granted them if the judge or the adverse party had first submitted their reason or reasons why the writ should not be granted.

I am not prepared to say now that an applicant may renew his application after it has been dismissed, as in this case. If the applicant in this case may renew his application after delivering or mailing a copy of his petition to the judge and to the adverse party or his attorney, no useful purpose will have been accomplished by recalling the writ of certiorari and the rule to show cause. On the other hand, if we should hold hereafter that the applicant for the writs is not entitled to renew his application, he will have been denied a hearing, for no other reason than that we failed to observe that his petition was not accompanied by an affidavit showing that he had delivered or mailed a copy of his petition to the judge of the district court and to the opposing party to the suit. In his affidavit annexed to his petition he swore merely that the facts alleged in his petition were true and correct; and in the affidavit of his attorney, annexed to the petition, the attorney swore also that he personally delivered to the judge and to the attorney for the plaintiff in the suit notices in writing of the intention to apply to the supreme court for writs of certiorari, prohibition and mandamus. There was no misrepresentation in the affidavit either of the petitioner or of the attorney.