
    (97 South. 470)
    No. 26050.
    LIUZZA v. SIMMS. In re SIMMS.
    (July 11, 1923.)
    
      (Syllabus by Editorial Staff.)
    
    1. Prohibition &wkey;>l3 — Partial demolition of building held not to prevent relief against unauthorized injunction.
    Though building, which was in contest between owner and one claiming as tenant, has been partly demolished, it is not too late to prohibit continuing in force of injunction restraining tenant from interfering with owner’s demolition of the building as unauthorized and illegal.
    2. Landlord and tenant <&wkey;285 (I) — Erroneous to restrain tenant in possession from interfering with landlord's demolition of building.
    Tenant in possession under verbal lease (was entitled to hold possession until deprived thereof by final judgment, and it was error, upon mere filing of suit, to grant injunction restraining him from interfering with landlord’s demolition of the building.
    3. Injunction <&wkey;436(I) — Restraining of tenant in possession from interfering with demolition of building not authorized by judgment which was not final.
    Injunction granted before final judgment, restraining person claiming to be tenant, who was in possession, from interfering with landlord’s demolition of building, was not justified by judgment in another suit ordering erasure from records of notice of alleged verbal lease, where delays for suspensive appeal therefrom had not elapsed. ,
    4.Certiorari <&wkey;36 — Prohibition 17 —Adverse judgment on rulé to dissolve held not to prejudice defendant on application to Supreme Court.
    That tenant enjoined from interfering with owner’s demolition of building applied for dissolution of the injunction, which was denied, does not prejudice his right to relief on application to Supreme Court for writ of certiorari and prohibition; such application being prerequisite to .his application to the Supreme Court.
    Brunot, J., dissenting.
    Action by John Liuzza against Alpha P. Simms. Judgment granting temporary injunction, and defendant applies for writs of certiorari, mandamus, and prohibition.
    Alternative writ made peremptory.
    John Wagner and McCloskey & Benedict, all of New Orleans, for relator.
    J. R. Upton, W. A. Porteous, Jr., and W. M. Ogden, all of New Orleans, for respondent.
   ROGERS, J.

This matter is before us for review under writs of certiorari and prohibition.

Relator as a tenant of plaintiff, claiming a verbal lease to expire October 1, 1923, was in possession of the premises known as the Southland hotel in the city of New Orleans. On March 28, 1923, plaintiff sold the property to the Western Union Telegraph Company and obligated himself to deliver possession thereof to the purchaser on or before May 1, 1923. On said date, plaintiff received a letter from the fire marshal, condemning the building as a fire hazard, and ordering its demolition. This letter was transmitted to relator, who nevertheless continued to remain in the premises, and on May 3, 1923, plaintiff filed ejectment proceedings, and, on the same day, in another suit, applied for and obtained: an injunction restraining relator, his agents, or employees from interfering in any manner with plaintiff, his agents, or employees in demolishing the building. Upon obtaining the order for the injunction, and several hours before the writ was served upon relator, plaintiff employed a crew of house razers and proceeded, over relator’s protest, to remove the roof of the building, thereby rendering it unfit for habitation. '

Relator filed an exception of no right or cause of action in said suit and a rule to dissolve the injunction issued therein, on the grounds that he had been deprived of his property without due process of law and without notice; that under the law no injunction can issue to qust a party in possession, snor can a mandatory injunction issue ex parte before hearing on the merits; that no authority exists under the law authorizing the department of the fire marshal to condemn buildings and to order their demolition without the opportunity of the occupant to be heard before the courts.

The respondent judge, for exception to relator’s demand, avers that his remedy is by appeal; that nullity of the proceedings does not appear on the face of the record; that relator’s application for writs was not timely ; that relator is without interest; that his conduct has estopped him from applying for the writs and has prevented the writs from serving any useful purpose, if granted; that the order granting the injunction was issued on May 3, 1923; that on the following day relator applied to respondent for a rescission of the order granting the injunction, and, after hearing, and the refusal of respondent to rescind or modify the order, relator vacated the premises; that the demolition of the building was proceeded with and has continued uninterruptedly to an extent which renders any part of the premises totally uninhabitable.

The return of the respondent judge recites in detail all the pertinent facts. It refers to two petitions and a judgment in other suits between the same parties growing out of their relations as landlord and tenant, certified copies of which are attached to the return or are to be found in the record. From one of these suits, it appears that on April 27, 1923, a writ of mandamus was made peremptory and relator and the register ’of conveyances for the parish of Orleans were ordered to cancel and erase from the books of the conveyance office the affidavit of relator, registered as notice of the alleged verbal lease.

It appears from relator’s application and from the return of the respondent judge that the building, possession of which is in contest between relator- and plaintiff, has been demolished to an extent which renders it unfit for occupancy. It is therefore too late to prevent what has already been accomplished, but it is not too late to prohibit the continuing in force of the order complained of, if it is found to have been unauthorized and illegal. Board of Commissioners of Petite Anse Drainage District v. Iberia & Vermilion R. Co., 117 La. 940, 42 South. 433.

It is indisputable that the order was issued without notice to relator and without affording him an opportunity to be heard, whether by plea to the jurisdiction or otherwise, and the same may be said of its execution, since under the shield of said order, and even before the injunction issued in pursuance thereof was served upon relator, plaintiff, with a force of house wreckers, entered upon the premises in question and proceeded, instanter, over relator’s protest, to remove the roof of said hotel building, causing an exodus therefrom of relator, his servants, employees and subtenants, including some 60 guests then in said hotel. The effect of plaintiff’s action was to dispossess relator of his possession of the said property.

Relator was in possession of the premises under a verbal lease from plaintiff, whether that lease was for a term of months, or only from month to month, is immaterial for the purposes of the issues presented under the present application, and he was entitled to hold that possession undisturbed until lie was deprived of it by a final judgment. The mere filing of plaintiff’s suit did not alter the legal situation, nor did it authorize the issuance of the injunction to oust relator of his possession. It has been repeatedly held that, although a preliminary injunction may issue to maintain a plaintiff in possession, it should not be allowed to oust one in possession. Pure Oil Operating Co. v. Gulf Refining Co., 143 La. 284, 78 South. 560; In re Warfield, 149 La. 1006, 90 South. 374.

The' judgment of April 27, 1923, making peremptory a writ of mandamus ordering relator and the register of conveyances of the parish of Orleans to erase from the books of the conveyance office the inscription of the affidavit registered as notice of relator’s alleged verbal lease, has no bearing on the present controversy, since said judgment, on the face of the record, was not a final judgment ; the delays for a suspensive appeal not having elapsed.

Nor is relator prejudiced by the adverse judgment on his rule to dissolve the injunction. This proceeding was a prerequisite to his application to this court for the exercise of its supervisory jurisdiction. t

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the alternative writ herein issued be now made peremptory, and the ’ respondent judge be, and he is, prohibited from further maintaining or executing the injunction which is herein complained, of until relator shall have been heard upon the merits with respect thereto. Costs of this application to be paid by plaintiff.

BRUNOT, J.

(dissenting). Relator relies upon four grounds as reasons why the writs issued herein should be made peremptory:

(1) The fire marshal cannot lawfully condemn or demolish property.

(2) Act 175 of 1910 governs the demolition of buildings, and the provisions of the act were not followed in this case.

(3) Injunction cannot issue to oust a party in possession.

(4) A mandatory injunction cannot be issued ex parte before hearing on the merits.

It appears that the fire marshal by letter written to John Liuzza, the owner, condemned the building as a menace and fire hazard and ordered its destruction. Relat- or’s attention was called to this letter by John Liuzza, who requested relator to vacate the premises and permit a compliance with the demand of the fire marshal. It is true that the fire marshal has not the power to condemn buildings and to order their destruction. It is equally true that officers are presumed to do their duty. It may be assumed that the fire marshal has a proper conception of the law and of his power under it, and his letter to John Liuzza was in the nature of a preliminary notice, calling the owner’s attention to the fact that his building was a fire hazard and menace that must be destroyed, and giving him an opportunity voluntarily, within a specified time, to demolish it. This is not an unwarranted assumption, because Act 175 of 1910 prescribes the giving of a notice to the owner or occupant before the municipal authorities, who alone are charged with that duty, can legally order the destruction of a building.

It is therefore apparent that no order, at least no legal or enforceable order, has issued condemning the building described in the pleadings in this ease, and no legal process has been initiated for the obtention of such an order.

The rule is that an injunction will not issue to oust a party in possession, but the writ applied for and obtained in this case is a prohibitory injunction. It appears that the issuance of this injunction and the decision of the lower court on the rule to dissolve it has caused relator to vacate the premises, but these results do not affect the character of the writ which was issued.

An examination of the record shows that the civil district court has jurisdiction ra~ tione personas and ratione materire, that the proceedings were regular and lawful, and that no error appears on the face of the record.

It is the general rule that mandatory injunction cannot be issued ex parte, but in its prohibitory or remedial form the writ of injunction will issue on the ex parte application of the complainant, as in cases where the purpose is to restrain or prohibit something from being done. Applications for writs of this character are addressed to the sound discretion of the judge, and, if granted, or if maintained after a trial of a rule to dissolve, the judgment is not final.

In such cases, if the court had jurisdiction and the forms of law are observed, relator’s remedy is by appeal from the final judgment, after trial on the merits.

Certiorari will not "issue where the remedy is by appeal. State ex rel. Weber v. Skinner, 32 La. Ann. 1092; State v. Judge of Fifth District Court, 15 La. Ann. 34; State ex rel. Aitken v. Judge, 43 La. Ann. 380, 9 South. 114; State ex rel. Broussard v. Koenig, 39 La. Ann. 776, 2 South. 559; State ex rel. Berthoud v. Judge of Twenty-Sixth Judicial District, 34 La. Ann. 782; State ex rel. Rudy v. Tomkies, 49 La. Ann. 1162, 22 South. 336; State ex rel. Dunn v. Richardson, 49 La. Ann. 1612, 22 South. 960; State ex rel. Town of Jennings v. Miller, 109 La. 705, 33 South. 739.

The writ will not issue when nullity of the proceedings does not appear on the face of the record. State ex rel. Wintz v. Judge Criminal District Court, 32 La. Ann. 1222; State ex rel. Brown v. Houston, 35 La. Ann. 1194; Denegre v. Bayhi, 35 La. Ann. 256; State ex rel. Broussard v. Koenig, 39 La. Ann. 776, 2 South. 559; State ex rel. Houston C. A. & N. R. Co. v. Riley, 43 La. Ann. 177, 8 South. 598; State ex rel. Williamson v. Judge of Fourth City Court, 37 La. Ann. 385; State ex rel. Shakespeare v. Duffel, 41 La. Ann. 560, 6 South. 514; State ex rel. City of New Orleans v. Judge of Twenty-First Dist. Court, 45 La. Ann. 950, 13 South. 181.

The writ will not issue when the court below has jurisdiction, and the forms of law have been followed. State ex rel. Wells Fargo Express Co. v. Martin, 48 La. Ann. 1249, 20 South. 729; State ex rel. Markham v. Read, 52 La. Ann. 273, 26 South. 826.

Moreover, relator vacated the premises, and when he applied to this court for writs of mandamus, certiorari, and prohibition the work of demolition had progressed to such an extent as to render any part of the premises uninhabitable; therefore the status which existed prior to these acts cannot be restored. Under these circumstances relator appears to be without interest, in so far as the relief sought in this proceeding is concerned.

In my opinion, the writs of certiorari and prohibition hereinbefore issued, and the order of this court to show cause why the injunction should not be dissolved should be recalled, and relator’s application should be rejected.

For these reasons I respectfully dissent from the views expressed by the majority of the court.  