
    No. 12,598.
    State of Louisiana ex rel. Charles M. Dunn vs. Hon. W. R. Richardson and Charles Wirth.
    In cases appealable to another court writs of certiorari and prohibition from the Supreme Court are not the proper remedies for relief obtainable on appeal. This applies to cases appealable from the city courts of New Orleans to the District Court. Ex rel Kepllnger et al. vs. Justice of the Peace, 48 An. 1348, and Ex rel. Purdy vs. Justice, 49 An. 1165. Affirmed.
    QN APPLICATION for Writs of Prohibition and Certiorari.
    
    
      Solomon Wolff for Relator.
    
      A. D. Blaehmar and Theo. G. Spitzfaden for Respondent.
    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
    Rehearing refused December 13, 1897.
    Statement of the Case.
    On the 7th of September, 1897, Charles Wirth instituted a suit in the Fourth City Court of New Orleans, of which Robert H. Downing is judge, against Julius Simno and Charles M. Dunn (the relator) asking judgment against them for forty-four dollars.
    The ease was fixed for trial by the judge of the court for the 16th of September, but it was, on that day, continued to the 23d of the month, nob by Judge Downing, bat by W. R. Richardson, judge of the First Oity Oourt.
    On the 23d it was called up for trial by Judge Richardson as presiding judge, when relator excepted to the authority of the judge of the First Oity Court to hear and dispose of causes at issue in the Fourth. The exception was overruled, but the trial was postponed to await the result of an application for writs of certiorari and prohibition which relator then and there announced he intended applying for to the Supreme Oourt, and which he soon after made, praying that court after an examination of the records to prohibit "W. R. Richardson, judge of the First Oity Oourt, from further proceeding with the trial of said cause, and to issue in the meantime a restraining order in the premises.”
    In the application, relator declared that it nowhere appeared that the judge of the Fourth Oity Oourt was absent on either the 16th or 23d of September, when the respondent judge undertook to issue orders in the case, except that in the notice of trial which issued under the fixing made on the 16th of September was the endorsement : “ By order of W. R. Richardson, judge of the First Oity Oourt, acting for R. H. Downing, absent on leave.” That the records of the Fourth Oity Oourt did not show any order made by the judge thereof calling upon W. R. Richardson, judge of the First Oity Oourt, to sit and hold court for the judge of the Fourth Oity Oourt, and to hear the cases there pending. He annexed to his application a certificate of the clerk of the Fourth Oity Oourt to the effect that there was not in the records or the minutes of the court any order or memorandum showing that Judge Downing was absent from the city on leave, or calling on any other judge.of the city courts to preside at the session of the Fourth Oity Oourt. He averred that in the absence of any such order or memoranda, or any grant of leave of absence, it had nob and could not be known to relator and other parties litigant in the Fourth Oity Court which one of the judges of the respective city courts would sib and hold court for Judge Downing, and that relator was thus unable to avail himself of the remedies the law provided for the securing of the evidence, etc. That he desired to avail himself of the testimony of one Bishop, whose permanent leaving of Louisiana had been first brought to his knowledge by the constable’s return of the 15th of September, of attempted service on said witness. That by reason of the absence of the judge of the Fourth City Court and relator’s ignorance of what judge would hold court for him, relator was prevented from issuing a commission to take the testimony of Bishop, which was material to the issues involved. That the attempt of the defendant judge to hear and determine the said cause against the wish and without the consent of defendants was a flagrant usurpation of authority and a violation of law.
    That the First and Fourth City Courts were separate and distinct courts, having jurisdiction respectively of certain cases arising within the city of New Orleans on the left bank of the Mississippi river, and brought in their respective courts. That the said judges had not jurisdiction of cases other than those brought in their respective courts, and were not competent to sit in judgment in cases other than those brought in their respective courts and otherwise within their jurisdiction.
    W. R. Richardson, judge of the First City Court, having been cited, filed his answer, annexing thereto the record and proceedings in the case of Wirth vs. Dunn et al.
    
    He averred that he was acting in the premises in the place and stead of R. H. Downing, judge of the Fourth City Court, absent on leave, by reason of a request of said judge, and of a special selection, delegation and call to act in such capacity conferred on him by the Governor of the State, as was fully shown by the leave of absence granted said judge by the Governor, which he made part of his return.
    That no minutes or records of the proceedings of the City Courts of New Orleans were kept in said courts other than a docket of the number and the titles of suits filed therein, and that the clerk of the Fourth City Court had in his possession the leave of absence granted to Judge Downing for thirty days from September 12, in which leave respondent was designated to act as judge of the Fourth City Court during the absence of its judge; that these facts were communicated to the attorney of relator, as would be shown by the certificate of the clerk of the court.
    That ou the 16th of September, 1897, respondent continued the case of Wirth vs. Dunn to be refixed, and that when relator’s attorney appeared in the Fourth City Court on that day (the 16th of September) he was then and there informed by the clerk of the court of said action and that respondent was sitting and acting in the place of the judge of the Fourth City Court, absent on leave. That respondent having refixed the cause of Wirth vs. Dunn for trial, a notice of said fact was served upon relator which bore thereon the endorsement: “By order of W. R. Richardson, Judge of the First City Court, acting for Hon. R. H. Downing, absent on leave.” That upon the day last fixed for the trial, relator through his counsel filed written exceptions to the right of respondent or any other judge of a City Court to sit as judge of the Fourth City Court in the place and stead of its own judge, and further excepted to the right of respondent to fix the case for trial and excepted to the validity of respondent’s order fixing the same for trial for that day. That respondent overruled relator’s exceptions, giving his reasons therefor in writing on the back of said written exceptions, and then and there officially announced his intention to hold said cause under advisement to enable relator to apply to the Supreme Court for writs of certiorari and prohibition in compliance with the request of relator’s counsel, and agreed in the event the writs were denied, or on due hearing dissolved, to permit relator to apply for a commission to take the testimony of Bishop, an absent witness, subject to an oral exception and objection to relator’s right to such commission made by the plaintiff in the suit. He averred that he was authorized and empowered by law to act in the place of the judge of the Fourth City Court, absent on leave, on his call and request so to act. That Act No. 79 of 1891 authorized the Governor to grant leaves of absence not to exceed ninety days at any one time to State and parish officers and repealed all laws and parts of laws inconsistent with said act. That Sec. 2092 of the Revised Statutes was authority for the granting of leaves of absence to justices of the peace, provided they procured another justice of the peace to act in their place. That the Supreme Court had held that all laws in civil matters which were in force relative to justices of the peace in the parish of Orleans were ■still in force and applied to the city courts created by Art. 135 of the Constitution.
    That the suit of Wirth vs. Dunn was appealable to the Civil District Court for the parish of Orleans, and relator should have applied to the judge of said District Court, from whom he could have obtained relief and might yet obtain adequate remedy if he be entitled thereto.
    That relator could on appeal urge all the objections set up in the application he had made for the writs and would have ample opportunity to obtain full justice on appeal, and was therefore not entitled to the relief he sought. He referred the court on this last position to Art. 857 of the Oode of Practice. State ex rel. Keplinger vs. Justice, 48 An. 1348, and State ea; rel. Weber vs. Skinner, 32 An. 1092.
    • He also cited Oode of Practice, Sec. 1070; R. S. 2087, 2092; Acts 1 Nos. 46 and 67 of 1880; State ea; rel. Frederick Skinner, 33 An. 148; State ea; rel. Oity vs. Judge, 40 An. 844.
   The opinion of the court was delivered by

Nicholls, C. J.

The suit of Wirth vs. Jules Simno et al. is an ordinary suit upon a moneyed demand against the present relator for forty-four dollars. It is accompanied by no attachment or seizure and presents no feature of hardship calling for exceptional action at the present time in order to afford immediate needed relief with remedies which no court other than the Sup'reme Court could supply. The-suit is appealable to the District Court, and in due time the questions which relator seeks to have presently passed on through a writ, of prohibition from us can be reached and passed on by the District Court on appeal. There will be ample time and opportunity to have-recourse to this court against illegal action or usurpation (should such there will have been in the case) after the District Court shall have passed upon the issues sought to be now raised before us.

Relator, having excepted to the capacity of the acting judge and been overruled, can proceed with safety and without waiver under the benefit of that exception to take out all necessary commissions and go to trial.

The application falls under the rule announced in State ex rel. Keplinger vs. Justice, 48 An. 1348, and State ex rel. Rudy vs. Justice, 49 An. 1165.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the order which has heretofore been granted in this case be and the same is set aside, and it is now ordered, adjudged and decreed that the application of the relator for a writ of prohibition be and the same is hereby refused.  