Dill v. Lowery

Supreme Court of Louisiana

Dill v. Lowery

117 So. 748, 166 La. 645, 1928 La. LEXIS 1935

CourtSupreme Court of Louisiana

DecidedJune 4, 1928

DocketNo. 29269.

StatusPublished

Cited by5 cases

This text of 117 So. 748 (Dill v. Lowery) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dill v. Lowery, 117 So. 748, 166 La. 645, 1928 La. LEXIS 1935 (La. 1928).

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Opinion

OVERTON, J.

Relator brought suit in the district court for the parish of Ascension, alleging that at a meeting of the Republican State Central Committee, held on January 31, 1928, he was elected a member of that committee from the parish of Ascension, for the term of four years, that he was duly qualified as a member of -the committee, and is the actual incumbent of the office, but that, not- * withstanding these facts, defendant, who is a resident of the parish of Ascension, is claiming, without sanction of law, to be entitled to the office, and is about to exercise the duties'thereof, and will do so unless restrained. The prayer of the petition is that defendant be ordered to show cause why an injunction should not issue, prohibiting him from exercising or attempting to exercise the duties of the office of committeeman, and from interfering with the exercise of those duties by relator, until the disputed right to the office .be determined, and that, in due course, the injunction be perpetuated.

Defendant filed an exception of no cause of action to this demand, and also an answer. There was judgment in the district court dissolving a restraining order that issued at relator’s instance, and also judgment dismissing relator’s suit, on the theory that relator was not in possession of the office, and therefore was not entitled to an injunction.

There are no emoluments or salary attached to the position of committeeman. The casé is such a one as is appealable to the Court of Appeal (Const. § 29, art. 7), but, instead of relator’s asking for an appeal to that court, he has asked that relief be granted him here through writs of certiorari and mandamus. The case might have been disposed of with reasonable promptness by appeal to the Court of Appeal. The case presents no such extraordinary circumstances as would justify us in reviewing it in the exercise of our extraordinary jurisdiction.

“While the range of cases in which writs of mandamus may be issued is enlarged by the grant of supervisory power over inferior courts, *647 it does not follow that that writ may be invoked always instead of appeal. It would revolutionize our jurisprudence to hold that every right that was. formerly enforced by appeal and every wrong that was formerly redressed by appeal ■can now be enforced by mandamus when an emergency seems to require or invite it.” State ex rel. Morgan’s Louisiana & Texas Railroad & Steamship Co. v. Judge, 36 La. Ann. 394.

A writ of mandamus will not issue •where there is an adequate remedy by appeal. Richard v. Habans, 140 La. 372, 72 So. 999,

For these reasons, the rule that issued herein is discharged,, and relator’s application is dismissed.

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OVERTON, J.

Relator brought suit in the district court for the parish of Ascension, alleging that at a meeting of the Republican State Central Committee, held on January 31, 1928, he was elected a member of that committee from the parish of Ascension, for the term of four years, that he was duly qualified as a member of -the committee, and is the actual incumbent of the office, but that, not- * withstanding these facts, defendant, who is a resident of the parish of Ascension, is claiming, without sanction of law, to be entitled to the office, and is about to exercise the duties'thereof, and will do so unless restrained. The prayer of the petition is that defendant be ordered to show cause why an injunction should not issue, prohibiting him from exercising or attempting to exercise the duties of the office of committeeman, and from interfering with the exercise of those duties by relator, until the disputed right to the office .be determined, and that, in due course, the injunction be perpetuated.

Defendant filed an exception of no cause of action to this demand, and also an answer. There was judgment in the district court dissolving a restraining order that issued at relator’s instance, and also judgment dismissing relator’s suit, on the theory that relator was not in possession of the office, and therefore was not entitled to an injunction.

There are no emoluments or salary attached to the position of committeeman. The casé is such a one as is appealable to the Court of Appeal (Const. § 29, art. 7), but, instead of relator’s asking for an appeal to that court, he has asked that relief be granted him here through writs of certiorari and mandamus. The case might have been disposed of with reasonable promptness by appeal to the Court of Appeal. The case presents no such extraordinary circumstances as would justify us in reviewing it in the exercise of our extraordinary jurisdiction.

“While the range of cases in which writs of mandamus may be issued is enlarged by the grant of supervisory power over inferior courts, *647 it does not follow that that writ may be invoked always instead of appeal. It would revolutionize our jurisprudence to hold that every right that was. formerly enforced by appeal and every wrong that was formerly redressed by appeal ■can now be enforced by mandamus when an emergency seems to require or invite it.” State ex rel. Morgan’s Louisiana & Texas Railroad & Steamship Co. v. Judge, 36 La. Ann. 394.

A writ of mandamus will not issue •where there is an adequate remedy by appeal. Richard v. Habans, 140 La. 372, 72 So. 999,

For these reasons, the rule that issued herein is discharged,, and relator’s application is dismissed.

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117 So. 748, 166 La. 645, 1928 La. LEXIS 1935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dill-v-lowery-la-1928.

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