State ex rel. Boudreau v. Judge of the Second District Court

13 La. Ann. 485

• Court: Supreme Court of Louisiana
• Decided: December 15, 1858
• Status: Published

Opinion

Merrick, C. J.

This is an application for a rule to be taken against the Judge of the Second District Court to show cause why he should not furnish a statement of facts to the defendants in certain cases wherein the City of New Orleans is plaintiff.

There are two reasons why the rule should be denied the parties moving for the same, viz:

1st. It does not appear by the showing made to.this court, that the cases referred to are within the appellate jurisdiction of the court, a fact which ought clearly to appear by the allegations in the petition, and not merely by inference from the fact that the District Judge had granted’.the appeal.

2d. It appears that the relators have already applied to the District Court and obtained an appeal, which precludes them from applying for a statement of facts afterwards.

It is true that there has been some conflict in the decisions as to the time in which the statement of facts may be made, but wo believe that it has never been decided that it could be made after an appeal has been taken. See Trenchard v. Elderkin, 3 L. R. 294; Union Bank v. Williams, 16 L. R. 236; Meeker v. Galpin, 4 Rob. 259; Jones v. Neville, 9 Rob. 478; C. P. 602 and 603.

The supposed mistake of the Judge in signing the judgments, did not prevent the relators from obtaining a statement of facts before taking their appeal.

It is, therefore, ordered, that the motion in this case be dismissed at the costs of the parties moving for the rule.