
    No. 11,881.
    State of Louisiana ex rel. John T. Shaw vs. Hon. T. C. W. Ellis, Judge of the Civil District Court for the Parish of Orleans, Division “A.”
    The allegation in the petition of a'relator praying for relief through a writ of prohibition, that he has no remedy in the premises otherwise than through the special relief asked, is a mere conclusion of law, carrying with it no force, in the absence of a statement of facts going to show the correctness of .that conclusion.
    Prohibition is not a proper remedy where relief can be reached through appeal or injunction.
    
      y^PPLICATION for a Writ of Prohibition.
    
      Dinkelspiel & Hart for Relator.
    
      Felix J. Dreyfous and Solomon Wolff for Respondent.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 16, 1895.
    On July 18, 1895, a petition and notice of demand were served on relator, in the case of George Montgomery vs. John T. Shaw, No. 46,475, Division “A,” of the docket of the Civil District Court for the parish of Orleans, being a proceeding by executory process. Upon said petition was endorsed an order for executory process, and was signed by T. O. W. Ellis, Judge of the Civil District Court for the parish of Orleans, presiding in Division “A.”
    It is contended that said order was improvidently and improperly signed by said judge, for the reason that on July 3, 1895, he had adjourned his court without day, and departed from the parish of Orleans, and was only temporarily in the parish on July 18, 1895, when said order was signed by him. That said order was not signed at the court house, and was signed by the said judge while he was temporarily in the city of New Orleans, and not in the city for the purpose of holding court or exercising judicial functions.
    The judge of Division “ A ” made return that on July 5, 1895, he adjourned Division “A” of the Civil District Court sine die. That under the act of 1892, regulating the terms of said court, Divisions “ B ” and “ C ” remained open, the judge of Division “ O ” to act for Division “ A;” that he left the city of New Orleans and returned on a visit, and not for duty, on July 18, and did not reopen Division “A” until September, when he began his vacation term, serving until October 20. That on July 18, the clerk’s deputy brought him a petition for executory process in Montgomery vs. Shaw, with the statement that the judge of Division “ C,” doubting his power, had refused to sign the order after the allotment of the case to Division, “ A.” That thereunder he signed the order, adding to his name the word “judge.” That the words “ of the Civil District Court for the parish of Orleans, presiding in Division 1 A,’ ” alleged and referred to by the relator, had doubtless been stamped for use in anticipation that the judge of Division “ C ” would sign the order; that he was sure he did not add those words; that if he was in error, then the fact was that he was not then presiding, as his foregoing statements would show. The judge submitted that he had the power to sign said order for executory process, either in court or at chambers, under Sec. 1906 of the Revised Statutes. That the Act of 1892 regulating the terms of the Civil District Court would be unconstitutional, should it he construed to suspend his power as judge, when by its terms his division should be in vacation. That by that act two divisions were,to be open and three divisions were to be closed. That if the judges present and acting could not sign orders such as that in question it would result that three-fifths of the business of the court must be in suspense and stagnant until the regular November term should open. That this could not be, as the Constitution requires that all courts should be open (Art. XI). He submitted that the Civil District Court for the parish of Orleans, with its one clerk’s office, was a single court — i. e., one jurisdiction, though having five judges to transact its business, and that any judge present can in the absence of another judge act or grant orders in place of said absent judge, in order to move the powers of the court and to prevent stagnation of its business, provided that he grant only preliminary interlocutory or conservatory orders, leaving all issues raised and to be raised for final hearing and decision when the judge should again return to duty. He submitted that while he was absent from Division “A,” and out the parish of Orleans, the judge of Division “ C,” then present (or the judge of Division “B”), could have signed said order for executory process, andt hat when he returned to said parish, though not to hold a session of court, he had equal power to sign it, and in support of his position he referred the court to the cases of Folger vs. Roos, 40 An. 602, and Rousseau vs. Estate of Bourgeois, 28 An. 186.
   The opinion of the court was delivered by

Nicholls, C. J.

The relator has filed no bi’ief in this matter, and has obviously abandoned his application. It is without merit. He made no attempt in the lower court to obtain relief from the order of which he complains. His allegation that he has no relief in the premises except through a writ of prohibition to be issued from this court is a mere conclusion of law, carrying with it no force whatever, in the absence of a statement of facts which would go to support the correctness of that statement. There is nothing going to show that relator has no other relief in the premises than through a writ of prohibition from this court.

We see no reason why he should not have appealed suspensively from the order, or taken an injunction against the execution of the same.

The restraining order hereinbefore granted is hereby set aside, and the writ of prohibition applied for is denied, with costs upon the relator.  