State v. Judge of the Parish Court

Morphy, J., delivered the opinion of the court. This is an application for a rule on the judge of the Parish Court, in and for the parish and city of New-Orleans, to show cause why a mandamus should not issue, commanding him to proceed forthwith to the trial of this cause. It appears that when the case came on to be tried in the court belqw, it was ordered to be continued by the judge, on an affidavit made by one of the defendants, for reasons said to be insufficient in law; and notwithstanding an offer on the part of plaintiff, to admit that the witness alleged to be absent would, if present, swear to such facts as the defendant, who had moved for the continuance, might disclose under oath. We are of opinion that no mandamus should issue in a case like the present. We are called upon to revise an opinion expressed . . „ . .. . , . . , * by an inferior tribunal, from which no appeal could be taken, We have never questioned the authority of the legislature to reguíate the exercise of the appellate jurisdiction given to this 0 1,1 court in all civil cases, in which the matter in dispute exceeds three hundred dollars. Art. 566 of the Code of Practice, provides that an appeal can be taken from interlocutory judgments, only when such judgments work an irreparable injury. Supposing that the judge in this case has erred, no irrepara [526] ble injury can be said to flow from this order. The case stands continued, and we have no reason to believe that it will not be fairly tried at another term. Mere delay cannot be regarded as an irreparable injury; for this reason, it has more than once been held in (his court, that no appeal lies lom an orc*ei' granting a continuance. 11 Martin, 274, Fortin vs. Randolph; 1 Martin, N. S., 597, Campton et al., vs. Patterson. Should we inquire into the alleged error in the order ^ juc^Se 011 t,^e mandamus prayed for, we would be allowing an appeal from it alio nomine; and whenever, in the exercise of their discretionary powers, the judges of the inferior courts should continue a cause, on whatever grounds, we would be called upon to test the sufficiency and legality of such grounds. But even should we allow such a course to be pursued, we do not perceive what advantage would be gained by it, or what useful purpose would be answered. We could not fix any particular day for the trial of this cause; nor could we give it any preference or priority, over the other suits pending in the Parish Court. It would have to be set down as any other case, according to the rules of said court. Our opinion, then, on the order of continuance made below, could lead to no decree, promoting in any way the ends of justice; and would, moreover, place us in the awkward situation that, should another continuance be asked on the same grounds, and the judge should refuse it in pursuance of our opinion, the appeal which might afterwards be taken would, as to this part, of the case, be from our own judgment, not from that of the inferior tribunal. No appeal lies from the continuance of a cause, when there has been no final judgment. It is said that the judge has been guilty of a denial of justice ; and we are referred to article 830, of the Code of Practice, as fully authorizing the remedy asked for. We are not prepared to say that there has been, in the present case, a denial of justice in the sense of the article above quoted. There has been, on the part of the judge below, no refusal to take cognizance of a case within his jurisdiction, or to act on the application of parties before him. He has pronounced on an incidental question presented to him in the progress of a cause; and if he has committed au error, it is one which [527] cannot interfere with, the merits of the cause, if they-be brought before us on a regular appeal. But this court, from its earliest organization, has always disclaimed a supervisory control over the inferior courts, in matters not incident to its appellate jurisdiction. In the case of Winn vs. Scott, we said, “ that the expressions of the Code of Practice seem to embrace all possible cases, but that the authority there granted, must be considered in relation to the constitution, which allows this court appellate jurisdiction only; and its mandates must be confined to matters which have a tendency to aid that jurisdiction.” 2 Louisiana Reports, 88. We cannot interfere with the orders or interlocutory judgments of the inferior tribunals, which do not work an irreparable injury, or involve matters which may affect our appellate jurisdiction. The plaintiff should lake nothing by his motion.