State ex rel. Board Metropolitan Police v. Judge of the Sixth District Court for the Parish of Orleans

Howe, J. The relators aver that J. B. Howard applied to the Sixth District Court for the parish of Orleans for á mandamus directing S. N. Burbank, their treasurer, to pay to Howard the sum of one hundred thousand dollars, amount of Metropolitan Police warrants alleged to he held hy him. That Burbank, in contempt of the authority and resolutions of the Board, consented to the issuing of the writ for the sum of seven hundred and thirty-two thousand four hundred and twenty-three dollars, alleged to he held hy Howard. That, on the same day, the judgment ordering a mandamus to issue was amended, and a mandamus ordered for five hundred and eighty thousand dollars. They further aver; that such a large amount of warrants have never been exhibited to the Board, or their finance committee; that there is no proof in the record that these warrants have ever been exhibited to the Sixth District Court; that the State Treasurer has in his possession four hundred and ninety thousand three hundred dollars and thirty-five cents of Metropolitan warrants ; which amount, added to the sum claimed to be hold hy Howard, exceeds hy many hundreds of thousands oí dollars the total amount of warrants issued, not only for the city of New Orleans hut for the entire Metropolitan District. They claimed the right to take a suspensive appeal from this judgment, but the Judge refused to grant such an appeal unless they would furnish a bond in an amount exceeding by one-balf the amount which Burbank had been directed to pay, namely, the sum of five hundred and eighty thousand dollars. The principal reason given for this position by the respondent, is that -the judgment in question is a money judgment, and that the sus-pensive appeal therefrom must he governed hy article 575 O. P. and the various amendments thereto. Wo find ourselves unable to concur in this view. The money judgment referred to in article 575, we think to he the same one alluded to in article 628, and, more fully, in article 641. It would seem that it is also the judgment referred to in article 3289 C. C., defining the judicial mortgage. It is executed by a writ'of fieri fiadas. It is, when [742] properly recorded, a mortgage on tlie real estate of tire debtor in tbe parish of inscription. To render such a judgment in a summary proceeding by mandamus, would be to violate the simplest rules of procedure. The judgment in this case is an order directed to a public officer to compel Mm to fulfill what is alleged to be a duty attached to his office. C. P. 834. It is not, strictly speaking, capable of being executed bj^ the sheriff. No writ of possession or of fieri facias can issue. If the defendant docs not choose to obey the order, he may be arrested and imprisoned; but if he chooses to remain in prison, the order will remain unexecuted. C. P. 843. We are constrained, therefore, to believe that this is a clear case where the amount of tie bond should have been fixed by the Judge, but where the law has established no special standard of amount.. In such a case, the bond offered by the relators in the sum of five hundred dollars would seem to be amply sufficient, an I we think the Judge should have allowed, upon that, a suspensive appeal. State v. Judge Fourth District Court, 20 An. 108; Blanchin v. Fashion, 10 An. 345. The case of State v. Mount, 21 An. p. —, cited by respondent, does not conflict with the views above expressed. In that case, the appellant, Mount, claimed to be exempted from giving any bond whatever by the law which exempted the city of New Orleans. If he had given a bond like that offered by relators in this case, his appeal would have been maintained. The same views apply to the other cases in which the relators now before us have sought to take suspensive appeals. ' It is therefore ordered, adjudged and decreed, that a peremptory mandamus be issued from this Court directing the Judge of the Sixth District Court for the parish of Orleans to grant to relators herein sus-pensive appeals in the following cases, upon the relators, the Board of Metropolitan Police, filing, in each of said cases, an .appeal bond, with surety, conditioned as the law requires, in the sum of five hundred dollars, viz: State ex rel. J. B. Howard v. S. N. Burbank, Treasurer, etc., No. 737 of the docket of the Sixth District Court; State ex rel. J. Davidson and Hill v. The same, No. 736; State ex rel. Pugh v. The same, No. 735; State ex rel. Hughes and Dejean v. The same, No. 741 ; State ex rel. Burbank v. Dubuclet, No. 742.