State ex rel. Graham v. Judge of the Eighth District Court

Howell, J. The relator shows that he appealed suspensively from a judgment against him in the case of The State ex rel. The Board of State Assessors v. James Graham, Auditor, in the Eighth District Court for the parish of Orleans, and that after he had filed the transcript of appeal in this court proceedings were instituted against him in the lower court to dismiss the appeal and execute the judgment appealed from by him, and that in pursuance thereof he was imprisoned on the order of the judge a quo for contempt of court in not executing the said judgment. He therefore asked for a writ of prohibition. ' The answer of tbe District Judge is, in substance, that the above named suit was tried contradictorily with the Attorney General, who [599] alone has control of said case; that by act 21 of 1872, the Auditor is forbidden to appear or employ counsel to defend suits against him; that the lower court was without authority to grant him the appeal in question, and this court to entertain it, the Attorney General not having appealed, and having consented to dismiss the appeal granted to the Auditor. Without expressing an opinion on the whole scope and the constitutionality of the act referred to, it is sufficient, in this case, to say that it does, in certain contingencies, authorize other counsel than the Attorney General to act for the Auditor and the State, and that from the documents before us, without objection, the counsel who acted in obtaining and bringing up the appeal in this instance appear to have been duly authorized to do so; and further, that when an appeal has once been taken the consent of the parties thereto is ineffectual to •dismiss it without the action thereon of this court. Under these circumstances the said appeal is still pending in this ■court, and the lower court is unquestionably exceeding its jurisdiction ,in attempting to execute the judgment. It is therefore ordered that the prohibition herein be made perpetual.