State v. Judge of the Second District Court of New Orleans

Buchanan, J. (Slidell, C. J. declined sitting in this cause.) This appli. cation is in the alternative to compel the Judge of the District Court to allow a premptory exception to be filed ; or to compel him to grant an appeal from this refusal to permit the said exception to be filed. [205] Both these remedies seem to be inadmissible. The state of facts presented by the petition for mandamus, does not inform us that a bill of exceptions was reserved to the refusal of the District Judge, to allow the filing of the premp-tory exception. It is our opinion that this would be the proper course for the party to have pursued in order to bring the matter to our notice upon an appeal, which the party might be entitled to at a subsequent stage of the proceedings. The mere refusal to allow the filing of a plea, is not of itself such a judgment as entitles the party offering the plea, to remove the case at once from the cognizance of the Court of the first instance by appeal. Co. P., Article 6G6. The rule nisi is therefore refused.