
    No. 5997.
    State ex rel. H. Newgass v. Judge of the Superior District Court, parish of Orleans.
    The judge a quo refused to grant an appeal from his refusal to grant an injunction in chambers. This court can issue no mandamus in the matter. The judge a quo has, in this case, simply refused to act and grant an expw'te order upon an expanse showing. This refusal can not be considered as a final judgment or an interlocutory order within the purview of the Code of Practice or any law from which an appeal lies, because it may work an irreparable injury. There is nothing for this court to revise, and hence there is no ground tor an appeal. It would be virtually assuming original jurisdiction were an order granted for an injunction, when none had been issued by the lower court. The non-action of the district judge in the premises can not be revised, amended or modified by this court.
    Application for a mandamus to be issued to tlie judge of the Superior District Court, parish of Orleans.
    
      Mornor & Benedict, for relator. Judge Mawlcins, in propria persona.
    
   Howell, J.

The relator seeks by this proceeding to compel the judge of the lower court to grant him an appeal from a refusal to- issue an injunction on an ex parte application. He alleges that, in a suit entitled, State ex rel. Robert Ray v. A. Dubuclet, Treasurer, the said judge granted an ex parte order of injunction prohibiting the said treasurer from paying any warrants from the funds then or thereafter in the treasury other than those held by the said Ray, and those of same nature held by other persons; that being the holder of warrants the payment of which was thus enjoined and prohibited, he presented a petition, affidavit and bond to the said judge, asking that Dubuclet, treasurer, be enjoined and prohibited from paying any warrants on the funds of 1874, until the right of parties in interest in said suit of Ray v. Dubuclet be finally determined, after proper parties are made thereto or permitted to intervene and be heard, and that upon the said petition the judge wrote the words “injunction refused,” whereupon he, the relator herein, asked in due form for a suspensive appeal from said refusal to grant the injunction thus prayed for, but the appeal was refused him, and he now asks for a mandamus to compel it, and for a prohibition forbidding the judge below to take further cognizance of the cause of Robert Ray v. Dubuclet, State Treasurer, and forbidding the said Ray from further prosecuting said case and forbidding the said treasurer from complying with the order in said case, until the further order of this court.

It is clear that the provisional writ of prohibition herein was improvidently issued by us, and the only question to be determined is whether or not the appeal should be granted. We think the simple statement, as made by the relator himself, shows that he has mistaken his remedy and is not entitled to a writ of mandamus.

The only case in our reports, in which an appeal from a refusal to issue an injunction seems to have been declared allowable, is that of the State v. Judge Lewis', 7 M. 457, decided in March, 1820. Since then no such right seems to have been exercised or recognized. The facts of that case are meagerly reported, but it appears that the parties who asked for the injunction, and whose property was about to be sold, had intervened in a pending litigation. Here the facts are very different. The refusal of the judge can not be considered a final judgment, or an interlocutory order, within the provisions of the Code of Practice or any law, from which an appeal lies, because it may work an irreparable injury. The relator is not without a remedy. The judge has simply refused to act — refused to grant an ex parte order upon an ex parte showing. There is nothing for us to revise, because the judge rendered no judgment and made no order, and hence there is no ground for an appeal. Further, were the appeal to be brought up and we should say that the judge erred in refusing the injunction, what order or decree could we render, and what would be its character ? Would it not be virtually assuming original jurisdiction, were we to grant an order for an injunction when none had been issued by the lower court? What is there for us to revise, amend or modify ? Certainly not the non-action of the district judge. We can not in this proceeding examine the merits of the contemplated injunction suit and determine whether or not the injunction should have been granted. The only question to be considered now is .whether or not the relator is entitled to an appeal from the refusal complained of. It appears to us very clear that he is not. The appeal could bring before us only the ex parte application which was presented to the district judge in chambers, and this tribunal, whose jurisdiction is only appellate, would be substituted for the lower court and would have to refuse or grant the application for the injunction, a matter not within our jurisdiction. We could not say that we would render such a decree or order that he should have rendered; for he rendered none for us to correct. There must be parties to a controversy before us, as well as the subject matter of the controversy, or some proceeding in the lower court. As the record now stands, there is no defendant in the application for an injunction. There was no defendant before the district judge, and we can not order one to be made a party.

In any view that we can take of the subject, we can discover no legal ground for an appeal.

Had what is called a rule nisi been taken and, after a hearing, the judge refused the injunction, or had the relator intervened in the .suit of Ray, a different question would be perhaps presented. But the relator neither intervened nor asked to be permitted to intervene in said suit of State ex rel. Ray v. Dubuclet, Treasurer, and there were no proceedings in his, relator’s application to the judge for an injunction, to be revised by us. See article 895, Code of Practice.

It is theretore ordered that the writs of mandamus and prohibition issued herein be set aside and dismissed with costs.

Morgan, I.,

dissenting. The relator presented a petition to the Judge of the Superior District Court, in which he alleged that a large amount of tases of the revenue of 1874 were about being paid into the treasury, which should be paid to him and to other holders of warrants on the State treasury.

That Robert Ray had filed a suit in that court against the Treasurer, in which he had prayed for and obtained an injunction prohibiting him from paying any other warrants than those held by Ray, or others of like nature, and especially from paying the warrants held by relator and others of like nature; that he is informed by the clerk that the petition is not on file, but that it is in the possession of the plaintiff, and therefore that he, relator, can not know its allegations, and that he only has knowledge of the injunction issued thereon; that relator’s warrants are of equal validity, date and rank with those held by Ray, and should be paid equally with Ray’s; that the preference allowed by said injunction to Ray is a manifest and irreparable injury to him, relator, and was granted without notice to him, and without furnishing any bond to secure him against the damages he will suffer by the preference given by said injunction ; that he has an interest in contesting the claim and pretensions of Ray, but that it is impossible for him at this time, and before the injury shall become irreparable, and that it-is necessary to prevent the treasurer from paying any of the warrants drawn on him by the Auditor against the revenues of 1874 until the rights of the parties and all in interest can be definitely settled; that by reason of said suit and the orders thereon, Ray is obtaining a preference contrary to law, and is thus violating the constitution of the State of Louisiana, and is virtually depriving him of his property without due process of law, contrary to the constitution of the United States; that he prayed that-the treasurer be enjoined and prohibited from paying any warrants on the revenues of 1874 until the right of parties in interest in the suit of Ray'u. Dubuclet can be'finally determined, after proper parties are made thereto, or be permitted to intervene and be heard therein; that there be reserved to him his rights for such damages as he may suffer; that his injunction may be made perpetual; that he made the necessary affidavit and offered a sufficient bond; and that the judge rendered judgment as follows: “Injunction refused,” and signed it; that he moved for a suspensive appeal from this judgment, tendering a sufficient bond therefor, which was refused.

He prays for a mandamus to the district judge commanding an appeal to be allowed him, and for a writ of prohibition forbidding the judge from taking further cognizance of the case of Ray v. Dubuclet, forbidding Ray from prosecuting his suit and the Treasurer from complying with the order rendered in that case, until the further order of this court.

In my opinion both orders should be granted.

That the relator had a right to intervene in the suit of Ray v. Dubuclet, I think, can not be‘seriously denied, and that, having intervened, he would be entitled to an appeal from any judgment rendered therein, interlocutory or final, which did him an irreparable injury, is, it seems to me, clear.

In this instance he could not intervene, because there was no petition on the files of the court in which he could file an intervention.

Now, what did the relator ask at the hands of the district judge? Simply that an injunctionftissue prohibiting the Treasurer from proceeding under the injunction issued in favor of Ray until he can intervene in the suit out of which the injunction issued. This the court refused.

I think the relator was entitled to the injunction.

An injunction may compel parties or public officers to do certain acts, as well as restrain them from acting. It is as effective to enforce a right as to prevent a wrong. C. P. 298; McDonogh v. Calloway, 7 R. 442, 2 An. 773.

It seems to me that whenever one has the right to enjoin, he has the right to appeal from an order refusing him an injunction in any case where the appellate court has jurisdiction.

In the case of the State v. Lewis, 7 M. 457, the court held that, an appeal will lie from the refusal of a judge to enjoin a sale.

The relator alleges that he is the holder of certain warrants drawn by the proper officer of the. government upon the treasury; that a party has obtained from the district judge an order enjoining the Treasurer from paying any warrants except the one held by him and others of similar character; that the petition upon which the injunction issued is not on the files of the court; he alleges that he is enjoined by this injunction, and prays for a counter injunction until he can intervene and proper parties may be made, that it may be ascertained whether the original injunction properly issued. His application is denied. He asks for an appeal. I think he is entitled to it.  