State Ex Rel. Thoman v. Williams

O’NIELL, C. J. The relators proceeded by mandamus to compel the recorder of mortgages to cancel an inscription of a paving lien recorded against their property, for $91.56, with interest at 6 per cent, per annum from the 8th of October, 1896. They contended that the lien was extinguished by the prescription of ten years, under article 3544 of the Civil Code, and under the provisions of the Act 46 of 1918, p. 66. They averred that the contractor, in' whose favor the lien was recorded, had not been heard from for many years, that they believed that he was dead and that they did not know who were his heirs at law; hence they had a curator ad hoc appointed to represent him as an absentee if living or to represent his heirs if he was dead. The curator pleaded that the Act 46 of 1918 was unconstitutional in so far as it purported to have a retroactive effect. The recorder of mortgages made no answer to the relators’ petition. The court gave judgment in favor of the relators, making the writ of mandamus peremptory, ordering the recorder to cancel the inscription. He alone has appealed from the judgment. It is apparent that this court has not jurisdiction over the suit, for the amount in contest does not exceed, but is far below, $2,-000, exclusive of 'interest. The contest over the question of constitutionality of the Act 46 of 1918 was not appealable to this cburt, because the court of original jurisdiction decided that the act was constitutional. It is only when a statute of the state is adjudged unconstitutional that this court has jurisdiction over the question of constitutionality in a suit not otherwise appealable to this court. Const. 1921, art. 7, § 10, par. 5. The appellant, having no interest in the matter except in having the question of constitutionality of the Act 46 of 1918 decided finally, as an abstract proposition, submitted the case without argument or brief. The appeal is dismissed.