
    
      HAWKINS vs. LIVINGSTON.
    
    East’n District.
    
      Dec. 1821.
    Application for a mandamus.
    
    No appeal lies from an order for a special duty.
    
   Porter, J.

The defendant claimed in the court below, an appeal from an order of the judge, which directed a special jury to be summoned, for the trial of the facts put at issue by the pleadings. This was refused, and application is now made, that a rule issue on him, to shew cause why he did not grant it.

The first question presented for decision is, whether this is a judgment or decree of that description from which an appeal lies to this court.

It has been more than once declared, that whenever an inferior court decides on the rights of parties, in such a way as to work an irreparable injury, such decision could be reviewed, and the error, if any, corrected here.

In the case now before the court, I do not perceive that any such consequence must, or indeed can, flow from the order complained of. For if it should appear, when it becomes necessary to decide the question, that this is not a case which can be legally submitted to a special jury, the verdict will, of course, go for nothing, and the cause be remanded for a new trial.

This court has decided in Agnes vs. Judice, 3 Martin, 171, and Kelly vs. Breedlove & Bradford, April term last, that transferring a cause from one court to another, was not such a judgment as could be appealed from. These were stronger cases than the present one, and they are not at all inconsistent with the decision in that of Poydras vs. Livingston, which was so much pressed on us in argument; for there the judge of the parish of New-Orleans, by sustaining an objection to his competency, gave a judgment that was equivalent to a non-suit, and threw the costs on the plaintiff. On the whole, I am of opinion that the application be refused.

Martin, J.

The case of Ralph & al. vs. Claiborne, determined in the superior court of the late territory of Orleans, appears to me perfectly similar to the one under consideration.

General Claiborne, alleging that he was a citizen of the territory of Mississippi, and as such, entitled under the laws of the united states, to have the suit removed into the federal court, filed in due time, his petition, to obtain the transfer. On its being denied, he applied to the parish court for an appeal, which was refused him; and he moved the superior court for a mandamus; but it was withheld, on the ground that the judgment was not final. 2 Martin, 176.

There was a feature in that case, which gave a stronger title to the defendant, to the interposition of the superior court, of which he availed himself without success. If the parish court, in which he was sued, was permitted to proceed, he must forego his right, by pleading in chief, or suffer a judgment by default. But the court probably thought, that if the allegation was a true one, they could afford him complete relief on his appeal, after a final judgment, by the reversal of it. So may we here.

But it is urged, that delay will, in this case, work an irreparable injury. This may be alleged on an application for an appeal, at any stage of the cause, and in any cause.

It appears to me, we cannot grant the mandamus prayed for.

Mathews, J.

In this case, a rule is claimed on the district court, to shew cause why an appeal should not be allowed from a decision, by which a venire for a special jury is awarded, for the trial of the cause, &c. In support of the motion for the rule, the acts of the legislature, on the subject of juries, and several decisions of the supreme court, are relied on. The present case, as presented to the court, is precisely the reverse of that of Labatut vs. Puche; there the exception to the opinion of the court, was on a refusal of a venire for a special jury ; and now it is to a decision by which the writ is granted. Perhaps the expression of opinion, as to the discretion of the district court, in the former case, is rather too broad and indefinite. But I have no doubt of its correctness in principle; that is, that the manner of conducting the trial of a cause must be left to the discretion of the court before which it is pending, until final judgment, or some decision which causes an irreparable injury to the party desiring to appeal. I cannot adopt the distinction attempted to be made out by one of the counsel, between the remedy, either by a judgment final and conclusive of the appellate court,or by sending the cause back to the original tribunal to be tried de novo. It ought to be satisfactory, if the supreme court can, in any manner of proceeding, authorised by law, correct the errors, and remedy the injuries of which complaint may be made, by a party who thinks himself aggrieved, after final judgment in the inferior court. In this view of the subject, I see nothing conflicting between the case of Poydras vs. Livingston, and that of Labatut vs. Puche. I am still of opinion, that when two courts, of competent and concurrent jurisdiction, exist, a suitor has a right to select by which he will have his cause decided; and that the court wherein he commences his action, ought to proceed to final judgment on the merits of his case, unless legal causes of recusation be shewn. An absolute and entire refusal of a court to try a cause, has the same effect as a non-suit or dismissal, by compelling the plaintiff to pay costs, and prosecute his claim in some other tribunal; an injury which could, in no manner, be repaired by the appellate court on an appeal from a final judgment, rendered in the second suit. A judgment by which a court wholly declines the trial of a cause, is certainly final in that suit, although it may not be finally decisive on the rights of the parties.

I therefore concur in opinion, that the rule ought not to be granted.  