State ex rel. Kiernan v. Recorder of the First District

20 So. 908, 48 La. Ann. 1375, 1896 La. LEXIS 640

• Court: Supreme Court of Louisiana
• Decided: November 2, 1896
• Docket: NO. 12,258
• Status: Published

Opinion

The opinion of the court was delivered by

Miller, J.

This application is for a writ of certiorari to restrain the enforcement of the fine imposed on the relator by the First Recorder’s Court, under the charge of disturbing the peace.

The writ authorized in unappealable cases is intended to correct proceedings in the lower court “ absolutely void,” as when the judgmenfc is given without citation or hearing. Code of Practice, Arts. 855, 857. The petition for the writ assigns no canse within the scope of the writ. The allegation is that the recorder is not entitled to the office. The law provides remedies to test the right to public office. But, manifestly, that issue can not be raised in this form of proceeding.

The writ, too, is preventive. Its purpose is to arrest the execution of the void judgment. In this case the supplemental petition informs us the fine has been paid, though under protest. We can not give relief by certiorari for money claimed to have been illegally exacted. Code of Practice, Arts. 857, 866.

The .previous order in this case is set aside, and the relator’s application is denied.