
    State, ex rel. Dodeman, for mandamus, v. The Judge of the Fourth District Court.
    A mandamus will not be granted by the Supreme Court, to compel a District Judge to rescind an order granting an appeal.
    ON application for a mandamus to the Judge of the Fourth District Court of New Orleans.
    
      A. Bodin, for relator.
   Buchanan, J.

The petition of the relator sets forth, that an appeal has been granted by the District Judge, returnable the 4th Monday of January, 1860, from a judgment rendered on the judicial admissions and confessions of the appellant.

Relator avers the order granting the appeal to be contrary to Article 567 of the Code of Practice, and prays for a mandamus, to compel the District Judge to rescind the order of appeal.

' In support of this application, the relator has referred us to 4th Robinson, 85, • 5th Robinson, 447, and 5th Annual, 233 and 597. The cases cited are cases where, either applications were made for mandamus to allow appeals from judgments on confession, or where this court dismissed appeals, regularly before it, on the ground that the judgment appealed from was rendered upon confession. Neither of these is the case before the court.

The District Court having exercised its legal authority in granting the appeal, this court cannot anticipate the return of the appeal, by entertaining at this time, what is in substance a motion to dismiss the appeal. The transcript of the record is not yet filed in this court, and it is possible that it never will be filed.

Rule nisi refused.  