Jones v. City of New Orleans

90 So. 234, 149 La. 893, 1921 La. LEXIS 1518

• Court: Supreme Court of Louisiana
• Decided: November 28, 1921
• Docket: No. 24960
• Status: Published

Opinions

PROVOSTY, J.

This is an application for a mandamus to compel the respondent judge to grant a suspensive appeal from an order dissolving an injunction on bond.

[1] Section 1 of rule 15 of this court (67 South, xi ¹) provides that no application of this kind shall be entertained unless previous notice of the intention to make same shall have been given to the opposite party or his counsel, “the service of such notice to be made to appear by the affidafdt of the applicant or his counsel.”

Noncompliance with this requirement has. been repeatedly held to be fatal to the application. Howcott v. Ruddock Orleans Cypress Co., 147 La. 192, 84 South. 584.

In the present case there is no allegation of such notice having been given; but there is an allegation that the trial judge in open court accepted notice of the intention to make the present application, and counsel say that this was in the presence of opposite counsel, and they argue that it constituted a sufficient compliance with the said section 1 of rule 15.

[2] The petition does not expressly allege that opposite counsel was present in court when notice was thus given to the trial judge and accepted by him; but, granting the presence of opposite counsel on that occasion, this would not be a compliance with said rule which by its express terms requires a “service of such notice.” Evidently, therefore, there must be either an actual service or an express waiver of it.

The present application is therefore dismissed at the cost of relator.

1 336 La. xii.