State ex rel. Levy v. Judges of the Court of Appeals

37 La. Ann. 395

• Court: Supreme Court of Louisiana
• Decided: April 15, 1885
• Docket: No. 9411
• Status: Published

Opinions

The opinion of the Court was delivered by

Manning, J.

Levy the relator appealed to the Circuit Court from a judgment of the District Court against him for four hundred and fifty dollars in the suit of Alford vs. Ileyman and Levy. The Circuit Court dismissed the appeal of its own motion because the appellant had not complied with one of its rules requiring that the record of a suit must he accompanied by a detailed list of all the pleadings evidence and documents in the order of their filing certified by the clerk or counsel. Levy* asked the revocation of this dismissal and the reinstatement of the appeal, which being refused he now prays a certiorari in order that tho rightfulness of the Circuit Judges’ action may be inquired into and they be ordered to do what he alleges they should have done.

We said lately in the Forman case we might on a proper presentation inquire into the power of the Circuit court to adopt and enforce the rules so loudly denounced. That proceeding was an application for a mandamus which we refused. The writ of vcertiorari is invoked hy this relator and is the form proper to he used to obtain the relief now sought if obtainable,

The Constitution requires that causes on appeal to the Circuit courts shall be tried on the original record, and prescribes that the rules of practice regulating appeals to the Supreme court shall apply to appeals to the Circuit courts so far as they are applicable until otherwise provided hy law. Arts. 102-3. There has been no provision of law about it, so that it is a constitutional requirement that the rules of practice in this court shall govern the circuit courts in the matter of regulating appeals, and the requirement that the originals of pleadings, etc. shall suffice for the trial of appeals to the Circuit court is of equal constitutional dignity.

We certainly feel the utmost delicacy and hesitation in interfering with the enforcement of the rules adopted by our learned brethren of the Circuit court, but we must of necessity inquire into their power to make them and the enforcement of them when proper demand is made upon us.

All courts have power to make rules to facilitate the progress of business in them when not in contravention of the letter of the law and not hostile to its spirit. One of tlio objects of establishing the circuit courts was to diminish the cost of appeals in causes within a certain amount, and to effect this it was organically commanded that the original record should alone be used. No other papers should be required. The great object was to enable litigants to have their appeals heard without additional cost. Grant that the rule, requiring that a detailed list of the pleadings evidence and document shall accompany them, is one calculated to facilitate the court in the examination of them, and that the court had power therefore to make it, does it follow that so severe a penalty as dismissal is permissible—-a penalty that entails the denial of any hearing and abridges the right of appeal on the sole condition that the constitution has required, i. e. the production in court of the original records—a penalty too not contained in the rule and of the possible infliction of which the parties were not advised.

The fault of the detailed statement not appearing is primarily with the clerk, and it is settled practice in this court that litigants are not to be punished for his fault. Here the worst that could befal the parties would be delay until the clerk furnished the wanting paper, and if the practice here is to prevail in the circuit court, as under the constitutional direction it must, how can the parties be put in cluriori aasu by the circuit court by inflicting a penalty that deprives them of any hearing whatever 9

And it must be observed that no motion was made to dismiss. The adverse party had not asked the interposition of the court to cut off tiie appeal. Of course appellate courts may and do dismiss ex mero mota, but never where all has been done that the constitution has ordered to be done, when as in this case the constitution has descended into details and taken the pains to say that appellants need do no more than a particular iking, viz file the original records.

It lias often been said the right of appeal is a constitutional right and should not be needlessly abridged. The constitution has hedged this right, so far as relates to appeals to the circuit courts, with a special protective appliance in specifying what those courts shall or may require to be filed to entitle the appellant to a hearing.

We are constrained to conclude that the penalty of dismissal has not been judiciously inflicted, and while we iu no wise interfere with the rule of the circuit court, which does not prescribe the penalty of dismissal, we think sometime should have been given to comply with it.

It is therefore ordered that the judgment of dismissal be rescinded and that the Court of Appeals for Oilcans proceed with the trial of the cause after giving time to the appellant to comply with its rule touching the matter in hand.