State ex rel. Miller v. Reid

On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. The several grounds assigned in defendant’s motion [166] need not be enumerated, but may be stated and decided seriatim more conveniently. The first in order is that there are no proper parties to this appeal. It appears that the district attorney, who filed suit and represented the State as relator and party plaintiff, declined to prosecute an ap - peal from the judgment rendered in favor of the defendant, and the Attorney General applied for and obtained an order of appeal, and has appeared in this court personally and by brief, in connection with other counsel, and represented the State; and the argument is, that the State of Louisiana, the only real plaintiff, has'not appealed, and that the acts of the,Attorney General are ultra vires, because “ in this particular instance he was and is entirely without power, right or authority to stand in judgment for his principal, the State." We are clearly of the opinion that this objection is untenable. It does not appertain to the status of the appeal, but the status of the cause. The suit was properly instituted by the district attorney as relator, personating the State; but, forsooth, he declined to prosecute an appeal from the judgment therein rendered, it does not follow that he ceased for that reason to be the relator; nor does it follow that because the Attorney General did prosecute an appeal that he became or attempted to assume the position or capacity of relator. While it is not doubted that the Attorney General had no power or authority in law to institute suit as relator, it is equally clear and undoubted that he has the capacity to appear in this court and represent the interest of the State in any given controversy. The duties of that officer are particularly defined in the Revised Statutes, and they declare, inter alios, “ that he shall appear for the State in she Supreme Oourt sitting in New Orleans, and prosecute and defend all appeals in cases criminal or civil in which the State may be a party or interested." Revised Statutes, Sec. 131 (italics ours). This authority is supplemented by a more recent statute, which empowers him “ to institute and prosecute any and all suits he may deem necessary for the protection of the interests of the State." Sec. 1, Act 65 of 1884. There is no question of the authority of the Attorney General under those statutes to prosecute the present appeal, and that power and authority necessarily draw to them authority and power to obtain an order of appeal. [167] It is clear that the quoted precepts of the written law furnish a complete answer to defendant’s contention. In prosecuting an appeal in such a case as this the Attorney General does not attempt to personate the State as relator. The district attorney does not, on that account, cease to be relator. The situation and attitude of the parties, respectively, remain the same as they at first existed in the District Oourt. There is not properly presented, in the motion to dismiss, any question of the capacity of the Attorney General to stand in judgment. But it is quite clear that he could not. And, in so far as the right of the district attorney to join the police jury as party plaintiff is concerned, its determination must be postponed to the consideration of the merits. The second ground of objection is that this court was without power to so change the place at which this appeal is to be heard and determined as to transfer the cause from Shreveport, where the order of appeal made same returnable, to the city of New Orleans for trial and decision. The order of court transferring this cause from Shreveport to New Orleans was evidently made upon the theory that the parties had consented to such transfer. The record discloses that at our recently adjourned term at Shreveport the plaintiffs requested, in a written motion to that effect, “that the return day be extended and made returnable to the next regular session of this court in New Orleans and on the 21st of November, 1892.” The reason assigned for this extension was that it was necessary to enable the clerk to complete the transcript, and in verification thereof the clerk of the court of Calcasieu furnished proper certificate. Upon this paper is this endorsement, viz.: “ Reserving any and all right to dispute the right or manner of appeal, the legality thereof and all rights under the law to have the appeal dismissed, we admit,” etc. We can not construe this endorsement as reserving to defendant any right to dismiss the appeal on the ground stated. If not consented to in express terms the transfer of the cause was impliedly consented to. Otherwise the admission was meaningless. But in any event this can furnish no ground for the dismissal of the appeal, for, if defendant be correct in his interpretation of the [168] waiver, his only right would have been to move for the re-transfer of the cause to Shreveport for trial, as having been improperly removed therefrom. In this respect the motion is not well grounded. These are, substantially, the only grounds on which the defendant appears to place reliance, because they are the only ones argued in brief; hence all others may be treated as having been abandoned. There is no merit in the motion, and it is therefore denied.