Shaw v. Howell

Jones, J. The Sheriff of the Parish of Orleans sued out a writ of mandamus against the Comptroller and Treasurer of the city of New Orleans, to show cause why a warrant should not issue in his favor for a certain sum of money predicated upon a voucher approved by the Clerk and Judge of the First District Oourt of New Orleans, pursuant to statute in such case made and provided. The Comptroller and Treasurer, for cause, against the issuing of the mandamus, filed exceptions only to the form of the proceedings. These exceptions being overruled, the Comptroller and Treasurer ask further leave to answer, which was refused by the Court. From the judgment rendering the mandamus peremptory against the Comptroller and Treasurer, the City of New Orleans took this appeal. The exceptions filed by the Comptroller and Treasurer were properly overruled, and the Court did not err in the exercise of its sound'discretion, 196 in Refusing defendants additional pleadings. The law regards tlie application for a mandamus as summary in its nature, and the answer in opposition thereto should contain a full written defence, whether it involves exception or merits. The splitting up of a defence should not be tolerated in practice. We now propose to examine the ease on its merits. This case, in all its aspects, presents the same state of facts to warrant the interposition of writ of mandamus, and under a similar statute as that decidíl by this Court, after a very elaborate and learned argument of counsel in the case of E. T. Parker, Sheriff, v. E. W. Robertson, Auditor, 14 An. p. 249. In the Parker case, the act passed by the Legislature in 1857, was authority which justified the State Auditor to issue the warrant in favor of the Sheriff. Under a subsequent statute the Legislature authorized the Comptroller and the Treasurer of the city of New Orleans, the one to issue and the other to pay a warrant in favor of the Sheriff, upon his producing his account for his fees and the like, as prescribed by law, certified and approved by the Clerk and Judge of the First District Court of the city of New Orleans. This having been done, the warrant should have issued for the amount of the account so certified and approved. The peremptory mandamus herein was properly issued. It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.