State Ex Rel. Krebs v. Junod

150 So. 64

• Court: Louisiana Court of Appeal
• Decided: October 5, 1933
• Docket: No. 1216.
• Status: Published

Opinion

ELLIOTT, Judge.

This is an ancillary and companion suit to that bearing the number 8338 on the Docket of the District Court and entitled ¡State ex rel. Bernard L. Krebs v. Jess S. Cave, State Treasurer, 150 So. 62, and in which we have j.ust ruled on an exception and remanded the case for further proceedings. In the present case the averments of Bernard L. Krebs, are practically the same, except that the process is prayed for against A. L. Junod, the person next in authority to Jess S. Cave, state treasurer. The suit was filed at the same time as the other and has the same purpose and object in view.

A. L. Junod, assistant treasurer, appeared in response to the alternative writ of mandamus issued to him, and urged against plaintiff’s petition an exception that it disclosed no right or cause of action, but at the same time, reserving all his. rights under the exception, he filed an answer, putting at issue relator’s alleged right to examine the records. The court did not act on the exception, but after hearing the merits rendered judgment on the merits, making the alternative writ peremptory.

Junod has appealed. There is no motion to dismiss, but we do not think that A. L. Junod, assistant treasurer, has any appellate authority or standing in this court as to the issue put forward in his answer.

The record of suit No. 8338, entitled State ex rel. Krebs v. Jess S. Cave, State Treasurer, shows that Cave in his capacity as state treasurer appeared in that suit at the samo time that A. L. Junod, assistant state treasurer, appeared in this one. It thus appears that Jess S. Cave, state treasurer, -had returned and resumed his official status, which left Junod without any in the presence of his chief.

The record in the present case shows that Jess S. Cave, state treasurer, was present when the case was tried in the lower court, and as he has, when present, the authority of the office of state, treasurer, it is our conclusion that A. L. Junod has no official status, which we can recognize in this controversy between Krebs and the state treasurer concerning the enforcement of Act No. 242 of 1912, as amended. The treasurer, Cave, has constitutional authority to remove Junod at pleasure, and it may be, for all we know, he is not now assistant treasurer; but suppose him to be such, the record indicating the presence of Gave, the authority of the office is vested in him.

For these reasons, acting ex officio, the ap•peal taken by A. L. Junod herein is dismissed, at his cost.