State ex rel. Follet v. Rightor

The opinion of the Court was delivered by Bermudez, C. J. This is an application for a Prohibition. The rela-tors charge: that, on the 25th of October last the Civil District Court for the parish of Orleans issued an injunction against them to prevent them from acting in a certain manner ; that ón the day following, this injunction was dissolved on bond; that on the 29th of the same month, a sus-pensive appeal was asked, obtained and perfected from the order to dissolve ; that on the 1st of November a rule was taken to punish them for contempt of court for violating said injunction ; that on the 26th following said rule was made absolute ; that they were condemned to pay-each a fine of $25, or be confined five days in the Parish Prison, the-court announcing that: “any further disobedience of the injunction will be visited with the utmost penalties of the law.” They charge that the Civil District Court for the parish of Orleans-has exceeded the bounds of its jurisdiction in entertaining both said injunction suit and said proceedings for contempt. 1st. Because the Twenty-Eourth Judicial District Court for the-parish of Plaquemines, on the 22d of September, and the United States-Circuit Court for the District of Louisiana, on September 1st, 1880, were-seized with jurisdiction of the matter sought to be agitated before the Civil District Court between the same parties. 2d. Because the injunction was dissolved on bond. They say that they have pleaded to the jurisdiction of the Civil District Court on the trial of the rule for contempt, but that the rule was-made absolute. They pray that the District Judge be prohibited from taking further cognizance of the cause. [1185] The defendant judge has made a return to the rule for a peremptory prohibition. The relators complain that this return is not sworn to ; but this is immaterial, even unnecessary, as the judge answers in his official capacity under his official oath. There are cases in which no return at ■all may be necessary, as where the application can be refused on its face. It does not appear from the showing made that the relators have pleaded to the jurisdiction of the District Court by exception to the petition in the suit, nor that, if such plea was filed, it was overruled by the court. It may well be that the District Court virtually overruled the plea to its jurisdiction, offered on the rule for contempt, but its judgment in such a proceeding is not reviewable by this Court. Assuming that the plea was a good one to the action, the court had a right to ignore or disregard it, on the trial of the rule for contempt, for the issue then was merely, had an injunction issued and been notified to the defendants, and had the defendants, without legal warrant, disobeyed it ? It will not do for parties enjoined, rightfully or wrongfully, to take the law in their own hands, and without previously having the injunction issued dissolved by the court, by giving bond or otherwise, do and perform those things or acts which the writ forbids them from doing and performing. The proper course would have been to obtain first a- dissolution, and afterwards to have done and performed that which had been prohibited. It appears that one of the defendants only was served with the injunction, and that the other two received no notice ; but this is of no moment, as they all afterwards moved for its dissolution by giving 'bond, which, however, proved of no avail, as the plaintiffs in the suit, upon proper averments, sought and obtained a suspensive appeal from the dissolving order, thereby keeping in its integrity, in full force and effect, the injunction issued. It may be that the plaintiffs were not entitled to a suspensive appeal from this dissolving order; but this is a •question which cannot be determined in this proceeding, and which can only be solved when presented on the appeal. O. B. 52, f. 211, 276. It is perfectly clear that the Civil District Court did not exceed the bounds of its jurisdiction when it allowed and passed upon the rule for a contempt, C. P. 130,131, although it may be that it had no jurisdiction ■over the main demand, which appears to be appealable. We are not informed whether an exception was filed to the jurisdiction of the court, in limine. Either it was or it was not. If it was, it may be that the court will sustain it and dismiss the suit, or overrule it and maintain the suit. In the former case, the defendants would have [1186] no cause to complain. In the latter case, they would not be debarred of their defense on the merits. From a judgment against them they could appeal and submit to this Oourt the exception to the jurisdiction, as well as their defense on the merits, and the Oourt would determine the questions presented in the order and manner in which they should be decided. If, on the other hand, the defendants have not filed such exception in limine and have answered, it may be claimed that they have submitted to that jurisdiction, abandoning means of defense personal to-themselves. It is possible that it is precisely because no such exception was filed, that the court made the rule for contempt absolute. It is not in all the cases in which a court may have no jurisdiction that a prohibition can issue from this Court. It is not a writ of right. 19 L. 167 ; 19 L. 174; 27 A. 336 ; 29 A. 360. It is an extraordinary one-(10 R. 169; 4 R. 48), which can. only issue where the court, having no jurisdiction at all, ratione material and personae, clearly usurps jurisdiction. C. P. 846 ; 4 A. 11 ; 11 A. 696 ; 14 A. 7, 504 ; 2 A. 236 ; 16 A. 186 ; 27 A. 158 ; 20 A. 240. It then issues only after a fruitless attempt in the lower court for relief (10 R. 169 ; 10 A. 552 ; 29 A. 806), and in the sound discretion of the court having appellate or supervisory jurisdiction, as-the case may be. 19 L. 174 ; 4 R. 48 ; 11 A. 696 ; 12 A. 513 ; 14 A. 504 20 A. 240 ; 27 A. 158 ; O. B. 52, 277. See, also, State vs. Falls, 32 A.-553; Wells vs. New Orleans, 32 A. 676 ; State vs. Judge Sixth District Oourt, 32 A. 549, in which this Oourt has expounded the constitutional provision (article 90) vesting it with a supervisory jurisdiction over inferior tribunals. This ease being appealable, the relators have an adequate remedy by appeal, and are not entitled to the interposition of the prohibitive authority of this Oourt in the case now before it. The Civil District Court,, in consequence of the suspensive appeal granted from the order dissolving the injunction; had a right to consider the injunction operative, and' to proceed to enforce it, by the infliction of fine and imprisonment. O. P. 131. The remedy of the relators consists in pleading to the jurisdiction by exception to the petition, in moving to dissolve the injunction,, in eventually trying the merits, and showing that the remedy was-wrongfully allowed. If justice is not done them in the lower court, and they claim that they are entitled to it, their next remedy will be by appeal to this Oourt, by which the differences between the litigants will have to be adjusted on the pleadings and the evidence. It is, therefore, ordered that the preliminary restraining order herein made be rescinded, and that the application for a prohibition be-refused at the cost of relators.