Motichek v. O'Keefe

LANDRY, Judge.

This is a timber trespass suit in which plaintiff seeks damages for alleged wrongful cutting of timber upon his lands. Defendants answered contending a survey of plaintiff’s lands was necessary to determine the issues before the Court. The trial court, Honorable Jim W. Richardson, Judge, presiding, appointed Robert A. Berlin, Surveyor, to make the survey. Mr. Berlin informed the court his fee for such services would be $500.00. Mr. Berlin also declined to conduct the survey until such time as assurance for payment of his fee was provided. Defendants then moved that the trial court order plaintiff to post bond in the sum of $500.00 to guarantee payment of Mr. Berlin’s fee. On May 17, 1963, the trial court declined to so order.

Defendants then petitioned this Court for alternative writs of certiorari, prohibition and mandamus directed toward obtaining a mandate commanding the trial court to order posting of the bond in question.

On June 21, 1963, we issued an alternative writ herein directing Judge Richardson to order plaintiff to post the requested bond or show cause, by brief, on or before July 15, 1963, why the requested writs should not issue. The writ also stayed all proceedings against relators.

The Judge of the lower Court took no action in response to or compliance with our writ of June 21, 1963. In the meantime, Judge Richardson died.

No further action was taken herein until December 4, 1969, on which date third party defendants, August J. Planche, Jr., Felix A. Planche, James C. Burns, Ruth Helen Burns Rawls, Edna Gayle Planche Cunningham, and Edna Stockstill Planche Fendlason, moved to vacate our alternative writ of June 21, 1963.

The failure of the trial court to comply with our alternative writ of June 21, 1963, should have been brought to the attention of this Court by the parties concerned upon expiration of the time therein allotted so that we could have taken further appropriate action.

The foregoing circumstances considered, we exercise our supervisory jurisdiction by recalling and setting aside the alternative writ issued June 21, 1963.

In further exercise of our supervisory jurisdiction, it is hereby ordered that alternative writs of Certiorari, Prohibition and Mandamus issue herein directing plaintiff ANDREW MOTICHEK to post bond in the sum of $500.00 to cover surveyor’s costs in this proceeding, or show cause by briefs filed in this Court on or before January 15, 1970, why this alternate writ should not be made peremptory, and judgment rendered herein ordering and commanding plaintiff to post said bond under penalty of dismissal of plaintiff’s action at plaintiff’s cost.

It is further ordered that the Honorable Robert Fitzmorris, Clerk of Court, St. Tammany Parish, transmit the entire record in this matter to this Court on or before January 15, 1970.