
    (86 South. 659)
    No. 24172.
    NEW ORLEANS LIVE STOCK EXCHANGE v. CRESCENT CITY STOCK YARDS & SLAUGHTER HOUSE CO., Ltd. In re CRESCENT CITY STOCK YARDS & SLAUGHTER HOUSE CO., Ltd.
    (Nov. 3, 1920.
    Rehearing Denied Dec. 4,1920.)
    
      (Syllabus by Editorial Staff.)
    
    1. Injunction <&wkey;l78 — Judge without discretion to dissolve on bond, if prohibited act may work irreparable injury.
    Under Code Prae. art. 307, if the act prohibited by injunction is such as may work irreparable injury to plaintiff, the judge of the district court has no discretion in the matter of dissolving the injunction on defendant’s giving bond; and even though the act prohibited is not such as may cause irreparable injury the judge is not obliged to dissolve the writ on bond, but may do so in the exercise of bis discretion.
    2. Courts &wkey;>204 — Injunction t&wkey;l78 — Determination of district judge whether prohibited act is not such as may cause irreparable injury to plaintiff reviewable.
    On defendant’s giving bond to dissolve injunction, the district court must determine whether the act prohibited is not such as may cause irreparable injury to plaintiff within Code Prac. art. 307, and bis judgment in such respect is subject to review by the appellate court in the exercise of its supervisory jurisdiction.
    3. Mandamus t&wkey;37 — -Appellate court warranted in commanding district judge to dissolve on bond only in extreme case.
    In view of the language of Code Prac. art. 307, it would be only in an exceptional or extreme case that the appellate court would be warranted in the exercise of its supervisory jurisdiction in commanding a district judge to dissolve an injunction on bond, the case would have to be one in which the district judge abused his discretion; that is, a ease where the act prohibited was such as could not reasonably be said to threaten irreparable injury to plaintiff.
    4.Injunction &wkey;>l78 — Act of stockyards in refusing use of pens held such as might cause irreparable injury, so that denial of dissolution on bond was proper.
    Act of defendant stockyards and slaughterhouse company in preventing plaintiff live stock exchange from feeding and caring for stock in the cattle pens of defendant company as usual for more than 40 years, plaintiff company’s suit being to annul a written contract between the parties, providing that at the expiration of three years the feeding privilege claimed by plaintiff company should revert to defendant company, field such as might cause irreparable injury to plaintiff, so that under Code Prae. art. 307,'.the district judge properly denied dissolution of injunction against defendant company on its giving bond.
    Suit by the New Orleans Live Stock Exchange against the Orescent City Stock Yards & Slaughter House Company, Limited, wherein plaintiff secured injunction, and defendant applies for writ of mandamus to compel the district judge to dissolve the writ on defendant’s furnishing bond.
    Relief prayed for denied.
    Olivier S. Livaudais, Legier & Gleason and Merrick & Schwarz, all of New Orleans, for applicants.
    Dart, Neman & Dart, of New Orleans, for respondents.
   O’NIELL, J.

The defendant in this case asks for a writ of mandamus, to compel the district judge to dissolve a writ of injunction, on defendant’s furnishing bond, as provided in article 307 of the Code of Practice.

The district judge overruled defendant’s motion to dissolve the injunction on bond, because the judge was of the opinion that the act prohibited by the injunction was such as might, and in all probability would, cause irreparable injury to the plaintiff.

The brief filed by defendant, relator, is devoted mainly to an argument in support of an exception of no cause of action, which was filed in the district court and overruled. The exception-'of no cause of action was filed three weeks before tbe motion to dissolve tbe injunction on bond. The exception was not urged as a ground for demanding that tbe writ of injunction should be dissolved peremptorily, or without bond. It was alleged or-suggested in tbe motion to dissolve tbe injunction on bond that tbe plaintiff’s petition did not disclose a cause of action, and that therefore tbe writ of injunction was issued improvidently. But that allegation was made only in support of tbe defendant’s contention that a dissolution of tbe writ of injunction would not cause irreparable injury to tbe plaintiff, and that tbe injunction should therefore be dissolved, upon defendant’s furnishing adequate bond to protect the plaintiff against loss or damages if a definitive judgment should be rendered against defendant. There was no motion or prayer for a dissolution of tbe injunction, except upon defendant’s furnishing bond, as provided in article 307 of tbe Code of Practice. Tbe minutes of tbe district court show that the exception qf no cause of action and tbe motion to dissolve tbe writ of injunction on bond were argued and submitted separately, and were disposed of separately. Tbe only ruling complained of in tbe petition to this court for writs of certiorari and mandamus is tbe ruling on tbe motion to dissolve tbe injunction on bond. Tbe prayer of tbe petition for mandamus is merely that tbe district judge be commanded to dissolve tbe injunction on bond for a sum to be fixe'd by this court.

Tbe record also discloses that tbe defendant, relator, filed an answer to plaintiff’s petition, after tbe exception of no cause of action was overruled. Whether the judgment overruling tbe exception of no cause of action should be affirmed or reversed is a question which may be presented on appeal from tbe final judgment of the district court, but it is not an issue in the proceeding now before us.

Tbe only question is whether, using tbe precise language of article 307 of tbe Code of Practice, “tbe act prohibited by tbe injunction is not such as may work an irreparable injury to tbe plaintiff.”

' Tbe object of plaintiff’s suit is to annul a written contract between plaintiff and defendant, dated April 20, 1917, providing that, at tbe expiration of three years “tbe feeding privilege” claimed by the plaintiff corporation and its stockholders should “revert to the Crescent City Stock Yards & Slaughter House Company, its successors or assigns.” Tbe cause alleged for demanding an annulment of tbe contract is that tbe defendant corporation and its officers neglected to fulfill certain obligations on their part, which are alleged to have been tbe consideration for which plaintiff agreed to a termination of tbe stock-feeding privilege after three years. It is alleged in plaintiff’s petition that tbe privilege of feeding and caring for live stock in tbe cattle pens of tbe defendant company had been enjoyed continuously by tbe plaintiff, and by the commission merchants who are members of tbe plaintiff company, for a period exceeding 40 years preceding tbe 20th of April, 1917; and that tbe defendant company bad recognized tbe alleged feeding privilege. The act prohibited by tbe injunction is tbe interference, by tbe defendant company or its officers, with tbe feeding of live stock by tbe commission merchants who are tbe members of tbe plaintiff corporation, during tbe pendency of this suit.

It is not, in term's, alleged, in tbe defendant’s motion to dissolve tbe writ of injunction on bond, that tbe act prohibited by tbe injunction is not such as may work an irreparable injury to tbe plaintiff. Tbe allegation or suggestion is merely “that tbe continuance of tbe injunction in force and effect causes irreparable injury to tbe Orescent Oity Stock Yards & Slaughter House Company.”

Taking tbe language of the Code literally, tbe question to be determined is not whether a continuance of the injunction in force and effect may work irreparable injury to the defendant, Crescent City Stock Yards & Slaughter House Company. The question is whether the act prohibited by the injunction is not such as may work irreparable injury to the plaintiff. If the act prohibited is such as may work irreparable injury to the plaintiff, the judge hás no discretion in the matter of dissolving the injunction on bond; and, even though the act prohibited be not such as may cause irreparable injury to the plaintiff, the judge is not obliged to dissolve the writ on bond, but may do so, in the exercise of his discretion. Of course, as we said in City of Lake Charles v. Lake Charles Ry. L. & W. Co., 144 La. 217, 80 South. 260, the district judge must determine whether the act prohibited is not such as may cause an irreparable injury to the plaintiff; and his judgment in that respect is subject to review by the appellate court, by the exercise of its supervisory jurisdiction. But, considering the precise language of article 807 of the Code of Practice, it would be only in an exceptional or extreme case that an appellate court would be warranted, in the exercise of its supervisory jurisdiction, in commanding a district judge to dissolve an injunction on bond. The case would have to be one in which the district judge abused th^discretion which is vested in him to dissolve an injunction on bond when the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, e. g. a case where the act prohibited by the injunction is such as could not reasonably be said to threaten irreparable injury to the plaintiff.

Our conclusion, from an examination of the record, is that the district judge was correct in his ruling that the act prohibited by the injunction in this ease is such as may cause an irreparable injury to the plaintiff.

The relief prayed for by the relator is denied at its cost.  