Fontelieu v. Gates

The opinion of the Court was delivered by Manning, J. This ease comes up on an intermediate issue presented in a contest for a judgeship. The two parties were rival candidates for that office in the Iberia-St. Martin district. The plaintiff’s allegation is that the returning officer had fraudulently returned the defendant as elected, and after setting forth in extenso the grounds in support o1 that allegation, prays that he, the plaintiff, be adjudged to have been elected. His petition was filed May 16th., the election having been held on the 22d. of the previous month. Fontelieu had been judge of that district the preceding term. He recused himself and appointed a judge of an adjoining district to try the case. On May 28th. the plaintiff filed a supplemental petition, alleging that the Governor had in the interim commissioned Gates, and prayed an injunction restraining and forbidding him from exercising the functions of the judgeship. The judge ad hoe granted the injunction the same day, and on June 7th. Gates obtained a suspensive appeal therefrom. That is the appeal before us. Fontelieu moves to dismiss on the ground that no appeal lies from an order granting an injunction. That is the settled rule; the only qualification of it being in those cases where the injury cannot be repaired in damages. Now so far as the defendant is personally concerned, any injury he may sustain is reparable, and therefore his appeal falls within the rule. State ex rel. Doullert v. Judge, 29 Ann. 869. But the defendant urges that we shall consider and apply another legal principle, which he maintains is equally well-settled, viz that a judge cannot be enjoined from exercising the functions of his office. We have no occasion now to pronounce an opinion upon that'question. The mode by which this case has reached us is by appeal, and *834 an appeal does not lie from such order as is therein complained of. The appeal therefore cannot be heard. Appeal dismissed.