Vial v. Youngs

GODCHAUX J. When this case was formerly before us on an application for writs of mandamus, etc., the lower Court was ordered to grant 'a suspensive appeal from an ex parte judgment dissolving an injunction that relator had secured. . State ex rel Vial vs. Edrington, Judge, etc., No. 5410 of our docket, not yet reported. The suspensive appeal is now before us for review;'' and the sole question involved is the correctness vel non of the judgment or order, granted ex parte, dissolving the injunction which plaintiff had originally obtained. A recent decision of our Supreme Court appears decisive of the controversy: ' “This Court has repeatedly held that an injunction once issued, should not be dissolved ex parte. Martin vs. Thierry, 29 Ann., 362; Gravois et als vs. Falgoust, et al., 34 Ann., 39; State ex rel Moore vs. Judge, 37 Ann., 118. * * * It has also been held that writs of prohibition and certiorari may be invoked to reinstate the injunction so dissolved. State ex. rel. Van Halen vs. Judge, 50 An., 642.” [315] May 27th, 1912. Rehearing refused, June 19th, 1912. Board of Commissioners, etc., vs. Iberia & Vermillion R. R. Company, 117 La., 940. See, also, Pike vs. Bates et als, 34 Ann., 391. We are not unmindful that a contrary doctrine appears to liave been announced in the case of Lehmann vs. Judge, 46 Ann., 163; but we repeat what we said with reference thereto when the present case was recently before us: “Respondent strenonsly urges upon ns the case of Lehman vs. Judge, 46 Ann., 163, but that case seems never to have been followed again and has so often been cited to the Supreme Court only to be passed aside, that we consider it no longer of much authority. ’ ’ Moreover, we are bound to follow the latest expression of the Supreme Court upon the subject. It is therefore ordered that the judgment appealed from be set aside, and that the ease be remanded to the lower Court for further proceeding according to law. The appellees to pay the costs of appeal, all other costs to await final decision in the cause. Judgment reversed and case remanded.