
    UNITED BENEFIT FIRE INS. CO. OF OMAHA, NEBRASKA v. Jim GARRISON, District Attorney, In and For the Parish of Orleans, et al.
    No. 1595.
    Court of Appeal of Louisiana. Fourth Circuit.
    July 22, 1964.
    Normann & Normann, Frank S. Nor-mann, Margot Mazeau and Gloria N. Irvine, New Orleans, for relator.
    F. J. Klein, Louise Korns, New Orleans, Mary M. Robinson, Baton Rouge, M. E. Culligan, W. A. Cousins, New Orleans, for respondents.
    Before YARRUT, SAMUEL, CHASEZ, HALL and BARNETTE, JJ.
   YARRUT, Judge.

This matter was submitted after formal hearing on the writ of certiorari and mandamus directed to the judge of Division C, Civil District Court for the Parish of Orleans.

The district judge maintained defendants’ plea to his jurisdiction, ratione materiae, and dismissed relators’ suit, holding that the forfeiture and collection of bail bonds given for the release and appearance for trial of defendants in criminal prosecutions was within the exclusive jurisdiction of the Criminal District Court for the Parish of Orleans. The basic facts concerning this issue are:

Relator, a foreign insurance company, authorized to write bail bonds in Louisiana, filed suit in the Civil District Court to enjoin Jim Garrison, District Attorney for the Parish of Orleans; A. P. Tugpvell, State Treasurer; and Dudley Guglielmo, State Insurance Commissioner from executing 33 writs of fieri facias issued by various judges of the Criminal District Court, directed to the Sheriff of East Baton Rouge Parish, to enforce collection of 33 judgments forfeiting that number of appearance bonds (totalling $70,000.00) signed by relator as surety, resulting from the nonappearance for trial of the respective bonded defendants.

The questions here are (1), whether the Civil District Court for Orleans Parish has jurisdiction to enforce or restrain the execution of judgments and orders rendered by the Criminal District Court in the exercise of their criminal jurisdiction; and (2), the constitutionality of the Code of Criminal Procedure regulating the procedure of forfeiture and collection of such bonds by the Criminal District Court. Only in the Parish of Orleans are there separate civil and criminal courts. The Civil District Court has jurisdiction in civil matters only, LSA-Const. Art. 7, Sec. 81. The Criminal District Court has criminal jurisdiction only, LSA-Const. Art. 7, Sec. 83. Neither court has supervisory or appellate jurisdiction over the other.

The procedure for forfeiture and collection of appearance bonds in the District Courts is set out in the Code of Criminal Procedure, LSA-R.S. IS :108, which relator contends is an unconstitutional delegation of authority to these Courts, viz:

“All bonds taken to secure the appearance of any person before any district court, otherwise than at a preliminary examination, shall be forfeited and collected as follows:
“If, at the time fixed for appearance, such person should fail to appear and answer when called, the judge shall, on motion of the district attorney, forthwith enter up judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof.
“If within twenty-four hours after the rendition, under the provisions of this Section, of any judgment forfeiting any appearance-bond, said judgment shall not have been paid, the district attorney shall cause said judgment to be recorded in the mortgage office, of the parish in which said bond shall have been forfeited, and may, at any time, cause said judgment to be recorded in every parish in which he shall think such recordation proper, and every recordation of said judgment shall be without cost and shall operate as a judicial mortgage against both the principal and his sureties. If said judgment shall not have been paid, it shall be the duty of the district attorney, at the expiration of the time allowed by law for the taking of an appeal, to cause to issue a fieri facias against both the principal and his sureties.
“Any judgment forfeiting an appearance bond rendered under the provisions of this Section may, at any time within thirty days after rendition, be set aside upon the appearance, and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance. As amended Acts 1950, No. 287, § 1.”

LSA-Const. Art. 7, Sec. 10, gives the Supreme Court appellate jurisdiction of all criminal cases in which the penalty of death or imprisonment at hard labor, or a fine exceeding $300.00; or imprisonment exceeding six months, has been imposed. In the Parish of Orleans, criminal cases not appealable to the Supreme Court, are appealable to the Appellate Division of the Criminal District Court. LSA-Const. Art. 7, Sec. 83. Thus, in Orleans Parish, bail forfeitures in felony cases are appeal-able to the Supreme Court, and forfeitures in misdemeanor cases to the Appellate Division of that court.

The Courts of Appeal of Louisiana have no jurisdiction whatsoever, either appellate or supervisory over criminal courts. LSA-Const. Art. 7, Sec. 29.

For the purpose of determining jurisdiction with reference to the forfeiture of an appearance bond in a criminal case, the proceeding to forfeit is deemed a criminal proceeding, and it is the nature of the offense charged that is determinative of the court having' appellate jurisdiction. State v. Cornig, 42 La.Ann. 416, 7 So. 698; State v. Bezett, 158 La. 309, 104 So. 55; State v. Cotton, 162 La. 295, 110 So. 480; State v. Shelton, 227 La. 27, 78 So.2d 498; Frank v. Currie, La.App., 172 So. 843.

Relator cites the case of State v. United Bonding Company of Indianapolis, Inc., 244 La. 716, 154 So.2d 374, in support of its contention that the issuance of a writ based upon a criminal bond forfeiture is a proceeding of a civil nature.

The issue in the United Bonding case was whether the Governor had the right, under his executive pardoning power, to remit to the surety a forfeited bail bond. The court held that the Governor had no such power because such forfeiture was not imposed as punishment for a crime, even though for j.-.isdictional purposes such forfeitures are treated as criminal matters; and approved its holding in State v. Shelton, supra, that an appeal in a proceeding to forfeit a bail bond lies only to the court having appellate jurisdiction of the criminal case in which the bond was given and forfeited.

In view of the above-cited jursprudence neither the Civil District Court, nor this court, has jurisdiction to review the action of the Criminal District Court in forfeiting bail bonds. This court can consider only the question whether the Civil District Court properly rejected jurisdiction.

Relator cites cases to the effect that the civil courts do have jurisdiction to enjoin public officials charged with the enforcement of criminal laws when a property right is involved, irreparable injury will result, and complainant has no adequate remedy in the criminal courts. The cases cited by relator involved public officials acting on their own authority, not pursuant to a final judgment or order of another court of competent jurisdiction; hence, are not apposite here.

Relator’s remedy was to seek relief on any issues involving the legality of the action of the Criminal District Court in the respective divisions of the Criminal District Court for the Parish of Orleans and, in case of an adverse judgment, to apply for relief to the Supreme Court, or the Appellate Division of the Criminal District Court, depending upon the nature of the crime charged against the bonded defendants. Harrold v. Flournoy, La.App., 88 So.2d 457; Carre v. International Car Co., 128 La. 205, 54 So. 740.

All parties and their privies to bail bonds are bound by the judgment of the Criminal District Court until reversed or set aside by the proper appellate court.

While this court cannot adjudicate the constitutionality vel non of the provisions of the Code of Criminal Procedure (cited supra) challenged by relator we think it to be in order to observe now, even if such provisions are ultimately to be held unconstitutional, that LSA-Const. Art. 7, Sec. 2, provides inter alia:

“* * * judges of the Civil and Criminal District Courts in the Parish of Orleans, * * * may also, in aid of their respective jurisdictions, original, appellate, or supervisory, issue * * * all other needful writs, orders and process * *

In State v. Cornig, supra, the Supreme Court said:

“Article 130 of the constitution of 1879, in defining the jurisdiction of the criminal district court for the parish of Orleans, says that it shall have general criminal jurisdiction only. There is no limitation as to its criminal jurisdiction. The forfeiture of the appearance bond, and the judgment and execution thereon, were proceedings springing directly from a criminal prosecution, and were necessarily of the character of criminal jurisdiction. The forfeiture of a bond in a criminal case for the appearance of the accused is not a civil but a criminal procedure, to be tested alone, on a question of jurisdiction, by the character of the crime charged against the accused. State v. Cassidy, 7 La.Ann. 273, 276; State v. Williams, 37 La.Ann. 200; State v. Burns, 38 La.Ann. 363.”

However, as all laws are presumed to be constitutional until annulled by a court of competent jurisdiction, any comment or conclusion by this court anent the constitutionality of the statutes challenged by relator would be ultra vires our jurisdiction and obiter dictum; for which reason we must pretermit such discussion.

The judgment of the district court maintaining defendants’ exception to its jurisdiction ratione materiae is maintained; the order for the issuance of a temporary restraining order is recalled; and the judgment of the district court is affirmed; relator to pay all costs in both courts.

Writ recalled and judgment affirmed.

SAMUEL, Judge

(concurring).

I agree with the conclusion that the Civil District Court for the Parish of Orleans is without jurisdiction and with the decree. However, being of the opinion that once we have decided there is no jurisdiction we cannot discuss the merits,

I respectfully concur.

HALL, Judge

(concurring in the decree).

I concur in the decree for the reason that since the Civil District Court has neither appellate nor supervisory jurisdiction over the Criminal District Court it has no authority to enjoin or interfere with the execution of writs issued by that Court.

CHASEZ, Judge

(dissenting).

I respectfully dissent:

The bonds upon which relator was surety constitute a promise by relator (and the respective criminal defendants in solido) to pay a stipulated amount, if the criminal defendant does not appear when his case is called. Now obviously the Criminal District Court is in an official position to declare whether or not the condition of the bond has been met, and it appears to have been conceded always that the Criminal District Court (or its predecessor) has jurisdiction to declare an appearance bond forfeited — i. e., to enter its official observation of the breach of the condition of the bond, viz., the non-appearance of the defendant. The question of whether or not the criminal defendant appeared (or was excusably absent) is determined by the Criminal District Court, and the only relief for an aggrieved party is by appeal from the Criminal District Court. Most of the jurisprudence relative to bond forfeitures has dealt with the question of where such an appeal lies — to the Appellate Division of the Criminal District Court or to the Supreme Court — and the jurisprudence has established that appeals from judgments forfeiting bonds lie to the Court which would have appellate jurisdiction over the crime (misdemeanor or felony) charged.

But in addition to the judgment of forfeiture, two other steps are involved, namely a money judgment against the criminal defendant and his surety, and execution of the money judgment by fi. fa. In my opinion these functions and especially the rendition of the money judgment, constitute an exercise of civil jurisdiction, and cannot constitutionally be undertaken by the Criminal District Court. I hasten to add that I do not consider it desirable that the Constitution should require the District Attorney to go to the Civil District Court to obtain and enforce a money judgment against the surety; nevertheless the Constitution does, in my opinion, so require. The Louisiana Supreme Court in Peirce v. Morgan, 3 La. 342 (1832), held that civil jurisdiction was essential to so pursue a surety.

In 1832, when Peirce v. Morgan was decided, the Louisiana Constitution of 1812 was in force and Article 4 Section 4 thereof provided “The Legislature is authorized to establish such inferior courts as may be convenient to the administration of justice.” That Constitution made no provision at all in respect to what jurisdiction might be conferred by the Legislature upon such courts as might be established by the Legislature. By acts of March 12, 1818 and March 3, 1819, the Criminal Court of the First Judicial District was created and it was given exclusive jurisdiction of all crimes, misdemeanors and offenses committed within the First Judicial District. In Peirce v. Morgan the Court declared “It is evident that by these provisions of the acts establishing this court of criminal jurisdiction, no power to try any civil suit is expressly granted.” The Court then reasoned :

“ * * * It may be true that pursuits against sureties, in bail bonds or recognizances for the appearance of persons accused of crimes, take their origin from criminal prosecutions, but the forfeiture arising from the violation of the conditions of these obligations does not render the obligors criminal in the general acceptation of that word. They become simply debtors to the state, and should be pursued as such according to the modes pointed out by law. A pursuit of this nature is not necessarily an incident or accessory to the criminal prosecution; it is a mere consequence of the latter flowing not directly from it, but from a breach of the conditions of the bond, and resolves itself into a civil suit, and being such, the court of criminal jurisdiction, in consequence of its limited powers, cannot legally take cognizance of it further than to declare the bond or recognizance forfeited, and thereby subject the obligors to be pursued for a recovery of the penalty in a court of civil jurisdiction either by ordinary of summary powers, as may be ordained by law. The facts which cause a forfeiture can only be ascertained by the court before which the person accused of an offence may be bound to appear for trial, and consequently the clauses in the law to establish the Criminal Court of the first district, which require all documents and papers relating to causes of a criminal nature to be transmitted to that court, were necessary and proper; but it cannot be justly inferred from them that the legislature intended to confer civil jurisdiction, in relation to these documents, on a court created exclusively for the prosecution of crimes and misdemeanors.”

The Court pointed out that the inconvenience resulting from having to apply to a civil court to enforce forfeited bail bonds could be eliminated by a Legislative grant to the criminal court of “civil jurisdiction” in relation to such bond forfeiture. Under the quoted provision of the Constitution of 1812 by which the Legislature was given full authority to create inferior courts there can be no doubt that, while the Constitution of 1812 was in force, cthe Legislature could have granted such civil jurisdiction to a criminal court.

Today the Constitution of 1921 is in effect, and its Article 7, Section 81 confers upon the Civil District Court for the Parish of Orleans “exclusive original civil jurisdiction”. Article 7, Section 83 only grants to the Criminal District Court for the Parish of Orleans original jurisdiction described as “exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors and offenses”. As of 1921 and as of Act 103 of 1924, and as of the 1928 Code of Criminal Procedure, and as of today, the Legislature has no power at all to grant civil jurisdiction to the Criminal District Court for the Parish of Orleans because the Constitution of 1921 grants “exclusive civil jurisdiction” to the Civil District Court for the Parish of Orleans.

The basic holding of Peirce v. Morgan, namely that a court exercises and therefore must possess civil jurisdiction in order to enforce bond forfeitures by seizure under fi. fa., has never been overturned. It has been said, in State v. Toups, 44 La.Ann. 896, 11 So. 524 (1892), that Act 104 of 1837 constituted a Legislative grant of civil jurisdiction previously held lacking in the Peirce case. In 1837, we observe, the Constitution of 1812 was still in force, and the Legislature might constitutionally have granted such jurisdiction. Again in State v. Bezett, 158 La. 309, 104 So. 55 (1925), the Court pointed out that Act 103 of 1924 by its terms constituted a Legislative grant of power to render money judgments on forfeited bonds, and an implied grant of power to execute such money judgments. At that time the Constitution of 1921 was in force but the unconstitutionality of Act 103 of 1924 was not pleaded; nevertheless the Court on its own motion declared:

“ * * * It may be, that if the unconstitutionality of Act 103 of 1924 was asserted in this case, the contention might present difficulties, but that question is not presented, and we pass it without comment.”

The unconstitutionality of the present form of Act 103 of 1924, namely LSA-R.S. 15 :- 108, insofar as it constitutes a grant of civil jurisdiction to the Criminal District Court for the Parish of Orleans is now asserted in this suit.

The exclusive civil jurisdiction in the Civil District Court for the Parish of Orleans granted by Article VII, Section 81 of the Constitution of 1921 would, on proper test, have rendered Act 103 of 1924 invalid insofar as it attempts to vest power in the Criminal District Court to render and execute a money judgment on a forfeited bond; and LSA-R.S. 15:108, insofar as it is sought to be applied for the same purpose in Orleans Parish, is to that extent likewise unconstitutional.

Decisions dealing with appellate jurisdiction over the forfeiture of bail bonds do not present the same question, as was pointed out in State v. Toups, which distinguished Peirce v. Morgan with the comment that it presented “an altogether different question of jurisdiction”. It seems inherently appropriate and necessary that the Criminal District Court should declare the forfeiture of bail bonds, since the condition of the bond is breached in the presence of the Criminal District Court itself when the defendant does not appear, and no legal justification for non-appearance is shown. Because the surety on the bond obliges himself to pay the amount of the bond, in the event the defendant does not appear, the official observance by the Criminal District Court of non-appearance of the defendant, embodied in its judgment of forfeiture, makes the surety’s obligation immediately due. But a money judgment for the amount of that obligation is within the civil jurisdiction given exclusively, in the Parish of Orleans, to the Civil District Court, and cannot constitutionally be rendered by the Criminal District Court, the original jurisdiction of which is exclusively criminal.

The question whether the Criminal District Court’s judgment forfeiting a bond was correctly rendered — perhaps involving questions such as whether proof of the defendant’s physical inability to appear was properly made, or other questions relating to the forfeiture itself — has always been considered appealable under the rules relative to criminal appeals. But we find no case other than' Peirce v. Morgan in which the sole question is the authority of the Criminal District Court for the Parish of Orleans to adjudicate and render a money judgment upon a civil liability.

There is language in State v. Cornig, 42 La.Ann. 416, 7 So. 698 (1890), that “ * * * The forfeiture of the appearance bond, and the judgment and execution thereon, were proceedings springing directly from a criminal prosecution, and were necessarily of the character of criminal jurisdiction.” (Emphasis supplied.) But the opinion shows that the case was an appeal from a judgment forfeiting the bond. In this case, and especially in this Court, we can say nothing about the adjudications of forfeiture for non-appearance, and presumably the Criminal District Court was perfectly correct in holding the bonds forfeited. Here, the plea to the Civil District Court is that the money judgment and fi. fa., out of the Criminal District Court were absolute unconstitutional nullities, and, regardless of the correctness of the judgment forfeiting the bonds, the fi. fa., issued on these money judgments from the Criminal District Court are not entitled to execution, and execution should be enjoined under LSA-C.C.P. art. 2298(4).

I am in agreement with the majority of the Court when in their opinion and concurring opinions they hold that the Courts of Appeal of Louisiana and the Civil District Court of the Parish of Orleans have no jurisdiction whatsoever either appellate or supervisory over Criminal District Courts; but I do not believe that the exercise of appellate or supervisory jurisdiction is necessary in order to decide whether or not a money judgment rendered Ijy the Criminal District Court upon a forfeited bail bond is absolutely null. The relator in this action asserts that the judgments complained of are absolutely null. If relator is correct injunctive relief shall be granted under LSA-C.C.P. art. 2298(4). However, even assuming arguendo that the judgments are valid and relator is not entitled to injunctive relief, which would result in the dismissal of relator’s suit, I do not agree that the Civil District Court did not have jurisdiction to hear it. It is apparent that we cannot hold a suit to enjoin a sheriff’s sale is not a civil matter; and if such an injunction suit is a civil matter we cannot say that the Civil District Court has no jurisdiction to entertain it when our Constitution grants that Court “exclusive origr inal civil jurisdiction in the Parish of Orleans.”

The Supreme Court of Louisiana has held that one district court does have power and jurisdiction to declare another district court’s judgment an absolute nullity, and also has power to declare a judgment of the Supreme Court of Louisiana an absolute nullity. These two questions were squarely decided in Tracy v. Dufrene, 240 La. 232, 121 So.2d 843 (1960).

I conclude that the Civil District Court in this case is in error in denying its own jurisdiction ratione materiae and in maintaining the exception of no cause of action filed by respondents herein.

Therefore, I am of the opinion that the judgment of the Civil District Court should be reversed and set aside in its entirety and that the case should be tried on its merits in the Civil District Court, with proper restraining orders to be issued by that Court, according to law, pending trial.  