State ex rel. Castille v. Judge of Second District Court

Merrick, C. J. The relator having been appointed tutor to the minors Marie and Joseph Castille, filed his petition, praying that the special mortgage which he tenders to secure the rights of the minors, may be accepted, and the tacit mortgage annulled. The District Judge declined accepting the special mortgage, being of the opinion that the property was so incumbered by prior mortgages, as not to otter any adequate security to the minors. C. 0. 331; Phillips’ Dig. 338, sec. 13. He, therefore, refused to receive the special mortgage, but declines to reduce to writing the verbal order which ho made, and he states that the practice in his court, both by himself and his predecessors, as far as he can learn, has been, (where he or they disapproved of the advice of a family meeting,) to deliver an oral refusal, without reducing the same to writing. The relator complains that he is precluded from taking his appeal until the order of the lower court is reduced to writing ; that if he should undertake to appeal, there would be nothing of record to show that he had been aggrieved, or that the proceeding was not still pending. It appears to us, that the relator is entitled to have a formal judgment rendered upon his petition, in order that he may appeal, if the decree be adverse to his pretensions. See the State v. The Judge of the Second District Court, 13 An. 481, 483. This judgment, when pronounced, must be entered upon the minutes of the court, and reduced to writing, and signed by the Judge. C. P. 544, 546. We cannot render the particular decree desired by the relator, nor pass upon the reasons which have influenced the District Judge to withhold the order. We can consider those questions only, when presented on appeal. It is, therefore, ordered, adjudged and decreed by the court, that a writ of mandamus issue to the Honorable the Judge of the Second District Court of New Orleans, commanding him to proceed to pronounce judgment upon the petition of said Ramond Castille, filed in said Second District Court, on the 2d day of December, 1859, and praying that a special mortgage be accepted, and that the tacit mortgage theretofore existing in favor of said minors be annulled, and for general relief; and that when such judgment shall have been pronounced, that said District Judge cause the same to be entered upon the minutes of his court, and reduced to writing, and that he sign the said judgment so to be rendered.