
    No. 10,425.
    The State ex rel. Gervais Leche, District Attorney, vs. A. C. Fowler.
    A decree overruling a motion to dismiss is interlocutory and is revisadle until: before final adjudication on the merits of the case* and when found erroneous,, can he rescinded. In such event the motion to dismiss revives as res nova.
    
    
      Appeals from judgments in oases under the intrusion into office Act must bo made returnable within ton days to the Supreme Court at New Orleans, or at one of its country sessions, immediately following the judgment.
    An appeal taken .in July, returnable to the Supreme Oourt at Now Orleans in November, on the suggestion of the appellant, instead of October, at Shreveport, must be dismissed.
    The rule that where appeals are made returnable at a particular place and on a particular day, and flic appellant suggests improperly the one or the other, or both, applies equally to civil and to criminal cases.
    Where the appellant suggests neither the place nor time, and the. judge shows by an explicit act that he exercised a legal discretion by fixing the place or time, or both, the appellant is entitled to protection, but then only.
    APPEAL from the Twenty-Sixth District Oourt, Parish of Jefferson. Rost, J.
    
    
      Walter H. Rogers, Attorney General, and Gervais Leehe, District Attorney, for the Relator and Appellee.
    
      H. N. Gautier for the Respondent and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Fenner, J.

The motion is made on the ground that the suit is brought under the intrusion into office Act and involves the right to office; that judgment therein was rendered in July, 1889, and that on motion of appellant the appeal, taken in the same month, was made returnable to the Supreme Oourt at New Orleans, whereas it should have been, returnable to our own next ensuing October term in Shreveport.

Sec. 2604, Revised Statutes, provides that such appeals shall have preference and shall be made returnable to the Supreme Court either in New Orleans or at one of its sessions in the country.”

Sec. 7 of Act 45 of 1870, after providing the terms of the Supreme Oourt for the several parishes and making all appeals from the Parish of Jefferson returnable at New Orleans, says that appeals in cases involving the right to office ‘ ‘ shall be returnable in ten days after judgment,” without fixing the place.

Iii support of the motion to dismiss our decisions in regard to ■criminal appeals under Sec. 4 of Act 80 of 1878 are invoked; but the language of that section is very different from that of the statutes just quoted. It provides that criminal appeals shall be made returnable to the Supreme Court within ten days, wherever the court may be in session on return day.”

Under this mandatory language we held that appeals made returnable elsewhere than at the ensuing session, by appellant’s fault, should be dismissed. State vs. Cloud, 40 An. 618; State vs. Jenkins, 36 An. 865; State vs. Lyon, this day decided.

But the legal provision- here is not similar. While perhaps the spirit of the law suggests and would make it eminently proper that the judge should make it returnable at the next ensuing session of this court, yet the language of the law is not mandatory to that effect and his discretion is not destroyed.

Moreover, in this case, the judge has rendered his own order, separate and apart from the motion of defendant, making the appeal “ returnable to the Supreme Court according to law at New Orleans.” This indicates that the judge considered and construed the law, and even if he committed error, it could not be visited on appellant, under the authority of Dellwood’s case, 33 An. 1229.

The motion to dismiss is overruled.

Bermudez, C. J.

In an informal proceeding the Attorney General, considering that our previous decree herein, overruling the motion to dismiss, is erroneous and still within our control for correction, calls our attention to the fact that the place at which the appeal was made returnable was suggested by the defendant and that the judge in granting the appeal merely followed -the improper suggestion.

The question therefore arises: whether it is in the power of this court, after it has denied a motion to dismiss, to reconsider its ruling and, if found erroneous, such ruling can be rescinded.

The Code of Practice, Art. 537, divides judgments into interlocutory judgments and final judgments.

Interlocutory judgments do not decide on the merits of the case, but are pronounced on preliminary matters in the course of the proceedings ; while definitive or final judgments are such as decide all the points in the controversy between the parties and have the force of res judicata.

A judgment must therefore be interlocutory or definitive. If it is not the one it must be the other.

The motion to dismiss was not designed to obtain a judgment on the merits of the controversy, but merely to procure a ruling on a preliminary matter, which was: whether the court would or not entertain jurisdiction over the merits of the suit for a reason alleged.

The judgment of this court upon it was not a final judgment deciding all the points in controvery between the parties and having the force of res judicata.

If not a definitive judgment, it is an interlocutory judgment and as such is revisable by the court before final adjudication.

It has been settled by frequent rulings that where a court, whether of original or appellate jurisdiction, discovers that an order given by it is erroneous it may itself set it aside without any formal motion. H. D. 330 (3), V38 (9).

This is so true that this court has, in a number of cases, decided that applications for a rehearing, where motions to dismiss appeals had been denied, were irregular, as such applications could be made only where final judgments had been rendered. 34 An. 220, and other cases.

The decree herein made was therefore an interlocutory judgment, .and as such is revisable at any stage previous to definitive judgment. Bunney vs. Ludeling, 41 An. —.

Such interlocutory judgment would not be affected by the lapse of ■judicial days which could not run to make it final, as in cases of definitive judgment.

It remains therefore within the control of the court, which can, even proprio motu, recall it and reconsider the motion, and it is its duty to avoid it where erroneous.

It is true that the ruling was concurred in unanimously, but had the fact of suggestion of the improper place, by the attorney, been more clearly presented, a different conclusion would have been reached.

The next question is whether that decree was or not correctly rendered.

A reference to the reasons assigned in support of it shows that the material fact on which the motion was based, to some important extent, did not fully attract the attention of the court, so as to give it the significant prominence which was claimed for it.

That fact was that the return place, namely, New Orleans, wal suggested by the appellant, instead of Shreveport, and the consequence urged was that as the appellant had misled the judge the appeal ought to be dismissed.

We consider that the correctness of the opinion and decree is questionable and that the same is revisable.

It is therefore ordered that the previous decree denying the motion to dismiss be rescinded and that the. motion be reinstated for reconsideration.

Dissenting Opinion.

Fenner, J.

The motion to dismiss involved nothing but the propriety of the place fixed for the return.

It was duly tried and submitted, and was overruled in an unanimous opinion by the court.

Subsequently the case was fixed, argued and submitted on the merits without a whisper of complaint from any party as to the disposition of the motion to dismiss.

Applications for rehearing on decrees overruling motion to dismiss are not received by the court. Succession of Edwards, 34 An. 220.

Yet, some time after the submission of the cause on the merits an irregular application, suggesting no new matter affecting the main ground of the opinion, was made by the Attorney General, inviting the court to review its ruling on the motion to dismiss.

I think, at this stage of the case, we should have disregarded the application. There is no precedent for reviving a motion to dismiss, based on grounds not affecting the jurisdiction of the court, after it has once been regularly tried and overruled. There are precedents to the contrary. Duncan vs. Duncan, 29 An. 829; Succession of Edwards, 34 An. 219.

Nothing was submitted to us but the merits of the case, which were submitted without reserve and were ripe for decision. I think we were not called upon, either of our own motion or at suggestion of a party, to reconsider grounds for dismissing the appeal which had already been duly considered and overruled. If the appellant had a bad case, affirmance of the judgment would accomplish the same end as dismissing his appeal; if he had a good case, we were not required to go- out of ofir usual way to destroy his appeal. The appellant had the right to suppose that the motion to dismiss was out of the case; if he had not so thought, he might have furnished additional argument against it. As it is, the judgment in his favor is reversed without new notice or hearing accorded to him.

Moreover, I think the original opinion on the motion to dismiss was correct, and I adhere to it.

But if it were wrong, it furnishes to my mind the best of reasons why the appeal should not be dismissed. It is elementary that error in the day or place fixed by the order of -appeal for the return is not ground of dismissal unless attributable to the fault of the appellant. Here the only fault attributed to the appellant is a misconstruction of the law as to the proper place -for return of the appeal, but if the terms of the law are so doubtful that in its first consideration this unanimous court affirmed the construction placed on the law by appellant, surely the error is not such a fault as should defeat the right of appeal.

Finally, the original papers in the case furnished by the Attorney General ¡show that though the motion for appeal presented by appellant’s counsel did suggest New Orleans as the place of return for the appeal, yet the order of appeal fixing that place was written by the judge a quo in his own hand, showing that his discretion was not surprised, but that he deliberately made the appeal so returnaable as complying with his interpretation of the law as expressed in the words “according to law” embodied in his order. This, as it seems to me, makes this point stronger than appeared on the face of the transcript, and stronger than Dellwood’s ease, the application of which authority should save the appeal.

I dissent.

On Motion to Dismiss.

Bermudez, C. J.

The Attorney General moves that the appeal herein be dismissed, on the ground that it was made returnable at the instance of the appellant, at New Orleans, while it ought have been made returnable at Shreveport.

The suit was brought under the intrusion into office Act, and the prayer is that “there be judgment in favor of the State, decreeing that Augustus O. Fowler usurps, intrudes into and unlawfully holds and exercises the office 'of Coroner of the Parish of Jefferson, and he be excluded from said office and for general relief.

There was judgment accordingly after hearing, which was signed on the 11th of July, 1889, the last day of' the term, of the District Court in the Parish of Jefferson.'

On the same day the cast defendant moved in writing “that a suspensive appeal be granted him therefrom to the Supreme Court of this State, returnable according to law, at New Orleans.”

The District Judge, in furtherance of the motion, made the following order: “Let a suspensive appeal be granted the defendant, A. C. Fowler, returnable to the Supreme Court of the State of Louisiana, according to law, at New Orleans, within ten days, on his furnishing bond,” etc.

The Supreme Court was not in session at New Orleans, on the 11th of July, and held a session in October following in Shreveport, where it heard and determined cases.

The transcript of appeal was filed in the clerk’s office at New Orleans, and the motion to dismiss now under consideration, was next-made.

The legislation on the subject of appeals in cases in which the right of office is involved, dates back to 1866, receiving attention in 1868 and in 1870. Sec. —, Act 1866, No. 82; Sec. 18, p. 154; Act of 1868, No. 157, Sec. 17. p. 201; Act of 1870, No. 45, Sec. 7, p. 100.

The spirit and letter of those several acts do not reveal or intimate any intent on the part of the Legislature, that the one should modify the other, but show that they well may coexist. Blended and construed together, they clearly mean, that, in all cases under the intrusion into office Act, appeals must be taken, within ten days, to the Supreme Court, at New Orleans, or at one of its sessions in the country, to be tried by preference.

In State ex rel. Slack vs. Hall, 26 An. 58, from the country, in which the appeal, allowed within ten days after judgment rendered in September, had been made returnable, in New Orleans on the first .Monday of November, the court dismissed the appeal, considering that the policy of the law is to have such cases determined speedily and with the least possible delay and concluding that the requirements of the law must be construed strictly.

It is apparent that the law not only requires that the appeal be made returnable within ten days, but also that it be so made returnable to the Supreme Court either at New Orleans, or at one of its sessions in the country, and that it be tried by preference.

Surely, the object of .the law, which is to oust usurpers from invaded public offices as summarily as legally practicable, would be greatly defeated, if one, declared to be such usurper, by judgment signed in July, could make his appeal returnable in November at New Orleans. He would thereby maintain himself in office in the meantime, when his appeal ought to have been made returnable within the ten days following the signature of the judgment previously, at such place at which the Supreme Court would next be in session.

It has been repeatedly held that where the law makes appeals returnable in a particular manner as to time and place, and the appellant expressly asks that the appeal be made returnable in a different manner, suggesting for instance an improper place, and the order granting the appeal is inadvertently rendered in accord with the prayer, the error thus committed by the court is imputable to the appellant who, as a penalty for misleading the judge, will be ousted from his appeal. The rule has been applied -equally to civil as to-criminal eases. 27 An. 540, 542; 32 An. 692; 35 An. 980; 38 An. 542; 40 An. 618.

There is no doubt that, in the latter class of cases, the judge is vested with a certain discretion in fixing a different place for the return, when in his opinion such a change will conduce to a speedy determination of the appeal, and there is no reason why, in the other class of eases, he may not act In a similar manner, but it is clear that .-in doing so, his action must appear as the result of the exercise of •his own judgment, which must not be based solely on the suggestion of the appellant.

The same spirit which animated the Legislature when it enacted legislation for criminal cases, inspired it when it adopted the intrusion into office Act, providing for the manner in which such appéals should be returned.

That spirit was as well to secure an accused a speedy acquittal or conviction as promptly to hurl intruders from office and to induct lawful claimants into the same, as to quiet the title of legitimate incumbents to the same

Surely it can less be claimed that the judge exercised a discretion in this case when he adopted the improper suggestion of the appellant and assigns no reason whatever for making the appeal returnable at New Orleans instead of at Shreveport, where under the law it ought to have gone.

The ruling in State vs. Dellwood, 33 An. 1229, is no precedent or authority in the present instance, however far it may have gone to extend relief to the appellant, for there the majority of the court concluded that the judge had shown the exercise of legal discretion, as he had said, ‘ ‘ by reason of the law and the foregoing application, the appeal is granted returnable,” etc.

Had the appellant here not gratuitously suggested himself an improper return place, and had the judge, by some ostensible act of his own, shown that he did not rest solely on the suggestion of appellant, but had exercised a legal discretion by fixing the return place, the appellant would have been entitled to relief, but the fact patent on the record is that the judge gave no reason for changing the return place, and rested solely on the suggestion of the appellant, who is therefore at fault.  