Boland v. Compagno

On Application for Rehearing.

By the WHOLE COURT.

PER CURIAM.

[2] We have concluded that the defendant is right in his contention, made in his application for a rehearing, that this case should be remanded to the civil district court for further proceedings consistent with the opinion which we have rendered. The case has not been tried on its merits. In fact, it was not put at issue. The plaintiffs prayed for a temporary injunction, which the judge of the civil district court refused to grant. It was from his refusal to grant the injunction pendente' lite that this appeal was taken. Before appealing, plaintiffs proceeded by mandamus to compel the granting of the preliminary injunction; but we ruled that, as the judge of the civil district court was invested with some discretion in the matter, he should not be compelled by mandamus to grant the writ. See Boland et al. v. Compagno et al., 152 La. 5, 92 South. 715.

In answer to the rule to show cause why a temporary injunction should not issue in this case, the defendant Compagno averred that his establishment, at the corner of Carrollton avenue and Maple street, was exempt from the Ordinance No. 5645 (amended by Ordinance No. 5867), because the building had been previously occupied and used for the business complained of, and had not “become vacant,” in the meaning of the ordinance,' as defendant averred. That defense was not submitted for decision, and, of course, was not considered by the judge of the civil district court. His ruling, refusing to issue an injunction pendente lite, was based upon the one proposition that the Ordinance No. 5645 (amended by Ordinance No. 5867) was ultra vires and invalid. , That, of course, was the only matter submitted to this court for decision. Our decree, purporting to enjoin and restrain the defendant from conducting a fruit or vegetable or oyster business, or any other business, in violation of the Ordinance No. 5645 (amended by Ordinance No. 5867), was supposed jto be rendered in compliance *473with the provision in the Code of Practice (article 905), that, when the Supreme Court reverses the judgment of an inferior court, it shall pronounce the judgment which the lower court should have rendered, if it be in possession of the facts and testimony to enable it to pronounce definitively. The civil district court has not lost jurisdiction of this case on its merits. In fact, the case might have been put at issue and tried on its merits in the civil district court while the appeal from the judge’s refusal to grant a prelimi-' nary injunction was pending in the Supreme Court. The judge awaited our ruling in the matter merely because the reason for which he had refused a preliminary injunction would have been a sufficient reason, in his opinion, for a judgment dismissing the suit finally.

If the decree which we have rendered in this case, purporting to grant an injunction, should be construed as. a judgment on the merits of the case, or on any other question than the one which was decided by the judge of the civil district court, it would violate article S95 of the Code of Practice, which says that the Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below. Worse than that would be the denial of due process of law, if our decree should be construed as a final judgment on the merits of the case.

It is ordered that this case be remanded to the civil district court for further proceedings consistent with the opinion which we have rendered on the question of validity of the Ordinance No. 5645 (amended by Ordinance No. 5867), and, to that end, the judge of said court is authorized to proceed as if this court had done nothing more than set aside his order refusing a preliminary injunction for the one and only reason that, in his opinion, the ordinance referred to was invalid.