State ex rel. Moyse Bros. v. Guion

On Application for Rehearing. Relators complain that the respondent made a writ of mandamus peremptory, commanding Owen Lanares, justice of the peace, to grant a writ of injunction, restraining an execution sale under a judgment which he had theretofore rendere dagainst Joseph Bradford in their favor; said justice of the peace having declined to do so for the reason that “ the ground alleged for the writ was negatived by said judgment on its face.’’ The ground assigned for the injunction was and is, that “ no notice of the trial had been served ” upon the judgment debtor, plaintiff in injunction; and the relators allege, as cause for the writ of certiorari to issue, that “ the petition for injunction was in direct conflict with the decree of (his) court ” — the perfect regularity of the proceedings in his court, on the face of the papers, affording suffi - cient warrant for his refusal of the writ. The drift of counsel’s argument is (1) that the remedy of defendant Bradford, if any he had, was.by appeal; (2) that his proceeding by injunction was a collateral attack upon the judgment. First — If, as relators allege, the records in the justice court, and the judgment therein rendered, negative the defendant’s complaint in terms, could an appeal have afforded an adequate and sufficient remedy? *497 We need not affirm that it was, or was not, in the instant case; as in the exercise of the supervisory power of this court by certiorari it can grant relief only when some illegality or nullity in the proceedings has been pointed out. The employment of the writ of mandamus by the respondent was the exercise of an ordinary, not an extraordinary jurisdiction. And in State ex rel. Murray vs. Judge, 36 An. 578, we said the court “ will issue the writ in its discretion, according to the exceptional features of each case submitted.” Consequently, if it be conceded that it was a doubtful proposition whether or not a proper case was presented for the allowance of an injunction, the respondent was of that opinion and made the mandamus peremptory; and, on the disclosures made in the record, we do not feel warranted in saying that, in so .doing, he abused the discretion which the law accords him. Second — As to whether the proposed injunction proceeding was a collateral attack upon the judgment which was assailed, is foreign to the issue raised herein, as it neither appertains to the illegality of the mandamus, nor to the jurisdiction of the respondent. On the trial of the injunction it might so appear; but the question lies beyond the domain of our supervisory jurisdiction. In this case we are dealing with the judge who made the writ of mandamus peremptory and not with the injunction proceedings. Rehearing refused.