State ex rel. Smith v. Judge of the Eighteenth District Court

38 La. Ann. 920

• Court: Supreme Court of Louisiana
• Decided: November 15, 1886
• Docket: No. 9841
• Status: Published

Opinion

The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

The relator complains that the district court has illegally overruled an exception to its jurisdiction, and that it persists in passing on the merits of the controversy.

The district judge denies the filing of such exception and claims that he has a right to hear and determine the case.

The suit is one in which the election of relator as mayor of Mandeville is contested by one who pretends to have been elected 'to that office.

The exception which was filed charges:

1st. That plaintiff’s petition was not filed in compliance with the law governing contested elections, and does not disclose a cause of action ;'

2d. That it was not filed in due time, is vague and indefinite ;

3d. That it was not accompanied by the petition of voters required by law, and the defendant reserved his right to answer to the merits.

Those exceptions cannot be viewed as questioning the jurisdiction of the court over the controversy. Far from doing so, they invoke its exercise for the dismissal of the proceedings as irregular in point of form.

It has been repeatedly held that it is not until a formal exception or objection to the want of jurisdiction of the court has been filed or made, and illegally overruled, that a prohibition will issue.

The ruling in 35 Ann. 1104, does not apply to the instant one.

It is therefore ordered that the restraining order herein made he rescinded, and that the application he dismissed with costs.