Succession of Cosner

72 So. 1017, 140 La. 375, 1916 La. LEXIS 1664

• Court: Supreme Court of Louisiana
• Decided: November 13, 1916
• Docket: No. 22168
• Status: Published

Opinion

PROYOSTY, J.

A family meeting having recommended that the mortgage of the relator’s minor children upon his property be made secondary in rank to another mortgage to be given by him for a debt to be contracted by him in borrowing money to pay off mortgages priming that of the minors upon the same property, and to defray the expenses of the minors, and to improve the property, the district judge refused to homologate the proceedings, holding that the law did not sanction the subordinating of a minor’s mortgage in this manner, and that he was therefore without discretion in the matter.

Mandamus will not lie to control the discretion of a judge. For instance, tof compel him to order the holding of a family meeting, State ex rel. v. Judge, 13 La. Ann. 483; State ex rel. v. Judge, 15 La. Ann. 113; or to allow a special mortgage to be substituted to a minor’s general mortgage, State ex rel. v. Judge, 15 La. Ann. 164; or to homologate the proceedings of a family meeting, State ex rel. Ames v. Judge, cited in State ex rel. v. Judges, 34 La. Ann. 1114; State ex rel. v. Judge, 5 Rob. 161. (Instances might be multiplied.) No matter how plainly the judge may have erred. State ex rel. v. Judge, 110 La. 995, 35 South. 261. Whether our learned brother erred or not in the present instance, we have not stopped to consider. He has not said, and naturally would not say, that he was without discretion in this matter, but merely that his discretion was controlled by what appeared to him to be plain law.

Application rejected at the cost of relator.