State ex rel. Lyons v. Circuit Court of Appeals, Third Circuit

Supreme Court of Louisiana

State ex rel. Lyons v. Circuit Court of Appeals, Third Circuit

22 So. 368, 49 La. Ann. 1221, 1897 La. LEXIS 421

CourtSupreme Court of Louisiana

DecidedJune 14, 1897

DocketNo. 12,543

StatusPublished

This text of 22 So. 368 (State ex rel. Lyons v. Circuit Court of Appeals, Third Circuit) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Lyons v. Circuit Court of Appeals, Third Circuit, 22 So. 368, 49 La. Ann. 1221, 1897 La. LEXIS 421 (La. 1897).

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Opinions

The opinion of*the court was delivered by

Miller, J.

The State Tax Collector by third opposition claimed a license tax from the defendant whose property was under seizure, and asserted the preference of payment accorded to the State over the seizing creditor. The judgment of the lower court was in favor of the State, but on the appeal the Circuit Court of Appeals reversed the judgment on the ground, that the license tax was unconstitutional, because, added to the tax on defendant’s property, the aggregate exceeded the limit of one per cent, on property prescribed by the Constitution.

The ground of unconstitutionality sustained by the Court of Appeals was not pleaded. It was brought to the attention of the court only by a suggestion from the counsel of the seizing creditor. If the license tax had been assailed in the answer as unconstitutional [1223]*1223and the judgment had maintained it, the appeal would have been to this court. If appealed to the Circuit Court of Appeals, on the ground of uneonstitutionality, the State could have dismissed the appeal. As it is the Circuit Court of Appeals has decided the ease against the State on a ground not pleaded, and which was beyond the jurisdiction of that court to decide. We think in deciding the case on that ground the court exceeded its jurisdiction.

We have denied the certiorari in cases when the proceeding in the ■ lower court has ended and the writ could serve no purpose. Here the condition is different. The writ issues as well after as before judgment, when the execution would deprive relator of his rights. Code of Practice, Arts. 855, 865, 866.

It is therefore ordered, adjudged and decreed that the judgment of the lower court complained of be set aside, the cause reinstated for trial on the issues made by the answer, and not on the constitutional ground.

Nicholls, O. J., absent; ill.

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The opinion of*the court was delivered by

Miller, J.

The State Tax Collector by third opposition claimed a license tax from the defendant whose property was under seizure, and asserted the preference of payment accorded to the State over the seizing creditor. The judgment of the lower court was in favor of the State, but on the appeal the Circuit Court of Appeals reversed the judgment on the ground, that the license tax was unconstitutional, because, added to the tax on defendant’s property, the aggregate exceeded the limit of one per cent, on property prescribed by the Constitution.

The ground of unconstitutionality sustained by the Court of Appeals was not pleaded. It was brought to the attention of the court only by a suggestion from the counsel of the seizing creditor. If the license tax had been assailed in the answer as unconstitutional [1223]*1223and the judgment had maintained it, the appeal would have been to this court. If appealed to the Circuit Court of Appeals, on the ground of uneonstitutionality, the State could have dismissed the appeal. As it is the Circuit Court of Appeals has decided the ease against the State on a ground not pleaded, and which was beyond the jurisdiction of that court to decide. We think in deciding the case on that ground the court exceeded its jurisdiction.

We have denied the certiorari in cases when the proceeding in the ■ lower court has ended and the writ could serve no purpose. Here the condition is different. The writ issues as well after as before judgment, when the execution would deprive relator of his rights. Code of Practice, Arts. 855, 865, 866.

It is therefore ordered, adjudged and decreed that the judgment of the lower court complained of be set aside, the cause reinstated for trial on the issues made by the answer, and not on the constitutional ground.

Nicholls, O. J., absent; ill.

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Bluebook (online)

22 So. 368, 49 La. Ann. 1221, 1897 La. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lyons-v-circuit-court-of-appeals-third-circuit-la-1897.