Hernandez v. James

Ludeling, C. J. A. B. James having obtained a judgment against the testamentary executor of Alex. Gordon et al., the executor took a suspensive appeal to the Supreme Court, and gave bond according to law, with Joseph Hernandez as security. The judgment on appeal was affirmed, property of defendant was seized and sold, and the execution was returned unsatisfied. A rule was then taken on the surety, Hernandez, to show cause why judgment should not he rendered against him for the remainder of the judgment against the executor of Alex. Gordon. The rule was made returnable on the first of October, 1868. Hernandez excepted to the proceedings on the ground that the court was in vacation, and could not legally entertain and render judgment on the rule at that time. The exception was overruled, and judgment was rendered against Hernandez for $10,313 03. Execution having been issued under this judgment, Hernandez obtained an injunction to prevent the sale of his property under the writ,, on the ground thatftlie judgment, having been rendered in vacation, was null and void. There was judgment dissolving the injunction, and the plaintiff has appealed Tlie defendant contends that the plaintiff acquiesced in the judgment by paying a large amount thereof, and therefore he can not appeal from that judgment or enjoin its execution. The fallacy of this position consists in the assumption that it is a judgment. Whether it is or is not a judgment, is the question for decision. We are of opinion that it is not a judgment; the law did not authorize the rendition of a judgment at the time when it was rendered. In Simonds & Co. v. Leovy et als., 21 An. 306, this court held: “The law maker has been careful to express for what particular proceedings and business the codrts shall he open all the year, and the act necessary for making judgments in other matters final, not being- mentioned, is excluded.” If the judge was without power to make a judgment final by affix [484] ing Ms signature to the judgment, a fortiori, he is powerless to try and decide a case, and sign the judgment. The judge a quo held that, under article 10 of the Constitution, courts must be considered as always open, and that judges had the right and power at any time to open court, hear and decide cases, and sign judgments. Article 10 declares: “All courts shall be open, and every person for injury done him in his land, goods, person or reputation, shall have adequate remedy by due process of law,” etc. Open here means the opposite of closed or secret — free of access — and it may also mean that litigants shall have the right, during all tbe year, to institute suits in the courts. But we think the article is not susceptible of the interpretation placed upon it by the learned judge of the district court. The defendant also insists that an injunction can only be granted for ■one of the causes enumerated in the Code, and that the ground alleged in the petition is not enumerated as a cause for injunction in the Code of Practice. Article 303 declares: “Besides the cases above mentioned, courts of justice may grant injunctions in all other cases where it is necessary to preserve the property in dispute, during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some oilier act injurious to the other party.” “A party may always have an injunction when the act would give a ■claim for damages.” 5 N. S. 501, Carraby et al. v. Morgan. Article 10 of the Constitution declares that every one shall have adequate remedy for injury done him in his property or person. C. P. 298. It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that the injunction be perpetuated. It is further ordered that the defendant pay costs of both courts. Rehearing refused. Messrs. Justices Howe and Howell dissent in this case, for reasons to be filed.