Hubert v. Auvray

6 La. 595

• Court: Supreme Court of Louisiana
• Decided: June 15, 1834
• Status: Published

Opinion

Martin, J., 7

delivered the opinion of the court. r

The defendant is appellant from a judgment forbidding him to exercise the functions of syndic and commissary of police in the upper liberty of the city of New-Orleans.

The dismissal of the appeal has been moved for on the ground of the matter in dispute being an office and not any thing susceptible of valuation so as to appear of the value of three hundred dollars which is the minimum of the matters of which this court has jurisdiction.

The record shows that a salary of about one thousand dollars a year is annexed to the office: this certainly gives ^ us jurisdiction.

On the merits, the plaintiff was appointed to the office and within ten days, had an act of suretyship prepared by the notary of the city, which he subscribed, but the testimony shows the surety did not sign until a few days after the principal; it does not appear whether he did so within the ten days required by law. The clerk of the notary sought the mayor in vain for several days to procure his signature to the act. The mayor desirous to give the plaintiff a second opportunity renominated him. The plaintiff not having availed himself of the second nomination, the defendant was nominated, gave timely surety and was commissioned.

The plaintiff brought the present suit in the form of a . . writ 01 QUO Warranto* Á

It does not appear that the major was ever applied to by him for a commission. If he had and had improperly refused one, the remedy would have been by a writ of mandamus to that magistrate to commission the plaintiff.

The plaintiff ought to attribute his disappointment to his „ 7 7 OWH lQ1C1ICS•

It is therefore ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, and that there be judgment for the defendant, with costs in both courts.

Eastern Dis. June, 1834. l’hommedieu vs. PENNY'S EX'RS.