State v. Fleckinger

90 So. 768, 150 La. 479, 1922 La. LEXIS 2585

• Court: Supreme Court of Louisiana
• Decided: January 30, 1922
• Docket: No. 25035
• Status: Published

Opinions

OVÉRTON, J.

This is an application for a writ of certiorari to review a ruling of Hon. Richard A. Dowling, one of the judges of the criminal district court for the parish of Orleans, ordering the state to return to Bessie Johnson, one of the defendants, certain property seized by police officers in her home without a search warrant, and delivered to the state, as lottery paraphernalia, and as evidence to be used against Bessie Johnson and her codefendant, Mark Fleck-inger, in support of a charge made against them for operating a lottery, and for having lottery paraphernalia in their possession, and for a writ of prohibition to prohibit said judge from delivering said property to said Bessie Johnson.

[1] This court ordered the respondent to show cause why the relief prayed for by the relator should not be granted. While the judge has answered, yet the order must be recalled, for it was inadvertently granted, since it does not appear that notice of intention was given to the defendants, or their counsel, of the intention to apply for the remedial writs prayed for in this proceeding, nor have they made any appearance herein. The first section of rule 15 of this court (136 La. xii, 67 South. xi) provides that:

“No application for an original wi-it, such as mandamus, prohibition, certiorari, writ of review, or the like, or for a rule nisi in such case, shall be entertained by the court or any of its members unless previously filed and docketed in the clerk’s office, and unless previous notice of the intention to make such application shall have been given to the judge or judges of the inferior court, if he or .they be made respondents, and to the opposing party or his counsel; the service of such notice to be made to appear by affidavit of the applicant- or his counsel.”

Unless notice of intention to make the application prescribed by the above rule be given, and proof of the giving of the notice made to appear by the affidavit of the applicant for the writs or his counsel, the application will not be entertained, in the absence of a clear waiver of such notice.

In the case of State ex rel. Hoffman v. Judge, 149 La. 363, 89 South. 215, it was said, in interpreting and applying rule 15, that:

“The rule was adopted more particularly for the protection of the interests of parties litigant, and they have a right to look to the court for its enforcement.”

See, also, Jones v. City of New Orleans (No. 24960) 90 South. 234,¹ not yet officially reported, and Howcatt v. Ruddock Orleans Cypress Co., 147 La. 192, 84 South. 584.

[2] As the rule was'adopted particularly for the protection of parties litigant, and as it provides that, unless the required notice be given, applications for such writs will not be entertained, the court must notice a failure to give it, even without suggestion from the parties at interest, in the absence of a clear waiver thereof, by appearance or otherwise; and, when the notice does not appear to have been given or waived, as is the case in this instance, the court must dismiss the application.

It may be observed also that articles 848 and 859 of the Code of Practice have not been complied with by making oath to the truth of the facts set forth in the application for the writs.

For the reasons assigned, it is ordered, adjudged, and decreed that the application for said writs be dismissed, but without prejudice to the relator to renew it, upon complying with the requirements of law and the rules of this court.

1 149 La. 893.