dissenting. I am unable to concur in the views expressed by my colleagues in this case.
The suit instituted by the relator against the defendant was a proceeding-regular in form and full in its details and allegations under the statue at least, if not under the Code of Practice. Moreover, it was accompanied by a citation also regular in form, which was duly served upon the defendant.
The plaintiff, at a regular term of the court, after entering his own recusation and protesting “ that the defendant cannot try and adjudge in any manner whatever the cause, moved the court that said action be removed from this (the parish of Plaquemines) in an adjoining district, there to be tried and adjudged, or that said cause be referred to one of the District Judges of the State, so that said Judge who shall interchange, shall have authority to repair *92to the parish of' Plaquemines, there to preside, and try and adjudge said caasa to law, and in order, generally, that said cause may be proceeded with and tried and adjudged.” This motion was overruled and refused, on the grounds that “ the defendant, and not the plaintiff, had the right to enter the recusation; that the said Second District Court has no jurisdiction therein; that said motion had for its object to make the defendant acknowledge that any of the District Judges has a right to decide between plaintiff and defendant, and that there is no law showing which Judge and court can be called and authorized to preside over and try the cause herein,”
In the application for the writ of mandamus to compel the defendant to make the order, the applicant prayed also for such other order as the nature of the case might require; and thereupon, we made the following order, viz:
“It is ordered, that a rule issue requiring the Son, James Foulhouze, Judge of the Second Judicial District Court, to show cause, on or before the first Monday of November nest, at 10 o’clock A. M,, why he should not render judgment upon the motion for a recusation in the case of Octane S. .Rousseau against him, in the parish of Plaquemines, in the matter of the contest of an election, and why he, the said Judge, should not either recuse himself, or otherwise proceed to pronounce judgment upon said motion and said canse.”
In answer to the rule, the defendant assigns seven reasons why the peremptory mandamus should not issue.
It is sufficient to notice the first paragraph of the first ground taken by the defendant, inasmuch as it fairly states the real issue on the rule. It is as follows, viz;
“ The plaihtiff sets forth that he has contested the election of the District Judge ; he sets forth, that James Foulhouze, the person whose election as District Judge he contests, has been commissioned by the Governor, has taken the oath of office, and has entered upon the duties of his office; and now, because James Foulhouze, Fsy., refuses to give orders in a suit calling in question his election, commission and judicial capacity, a mandamus is prayed for to compel him to do so. The simple question is, has this or any other court of this State, any jurisdiction of such acase; any authority to order any Judge to try it, or any court to order its trial ? If so, then where is the law giving this or any other court jurisdiction of the controversy. The Supreme Court has in general an appellate jurisdiction, and in furtherance of that jurisdiction, has a right to issue a mandamus ; but it will not certainly do so to compel an inferior Judge to grant orders in a case when the cowi't, over which that inferior Judge presides, has evidently no jurisdiction. On the contran’y, (the defendant continues,) the Supreme Court will grant a prohibition as in the case of Tappan v. Foute, to prevent a District Judge from assuming jurisdiction where he has none. For the greater reason, this court will not compel this respondent (or any other court or Judge in his place) to entertain a case in which no law invests the inferior court with power to pronounce,”
If the position assumed by the defendant he correct, it then follows that a proceeding has been filed in the District Court, which neither that nor any other court has power either to dismiss or grant the demand contained in the prayer of the petition ; and a cause has been commenced which can never be ended. A position which it seems to me cannot be maintained either on principle or authority. For every case must go out of court upon a decree condemning the defendant to satisfy or absolving him from the whole or a part of the plaintiff’s demand. Any thing short of this, is not a decree.
*93Praises provincial non ignorat definitivam sententiam, gum eondemnationem vel absolutionem non continet, pro justa non Tiaberi. Const. 8, Code 7, 45.
It is not enough, to excuse the Judge from exercising his judicial functions, to show that in his opinion the demand is unfounded and illegal, and, therefore, cannot lawfully he granted. The plaintiff whose demand is unfounded, has a right to be heard and to have the judgment of such inferior tribunal upon his demand; for, poradventure, that which appears absurd to the lower court, may, on a more careful examination, be found to have merits, when it shall have been examined by the Supreme Court.
Suppose, for instance, a suitor should institute a suit against the District Jud^e for some demand, sounding in dollars and cents, which should appear to such Judge frivolous, and even calculated to bring him into contempt if true ; could the District Judge decline either to dismiss or try the case, or enter the proper order of recusation, &c ? On an application for a mamdamm, would it be proper for him to argue to us, that the petition was absurd or demanded some illegal thing which the Judge should choose to construe into a personal affront ?
It seems to me not. We could only consider the case after it had been passed upon by the lower court. If the Judge should deem himself incompetent to try such cause, he should recuse himself, and whenever a judgment should be rendered, whether dismissing the petition or demand, or granting the prayer of the petition, this court could take jurisdiction of the same. To try the case before that time, would be assuming original jurisdiction.
So in the case before us. A proceeding has been commenced in the Second Judicial District, in the parish of Plaquemines, of which the defendant is the Judge, at least, de facto. If he is interested in the case as a party, he should recuse himself, and make such other order as may be needed. If he is not interested, he should hear motions, grant orders and try the case. If the demand is wholly unfounded and unauthorized by law, it should be dismissed. If well founded, it should be sustained. All these questions are for the decision of the District Judge who shall try the case, to whose unbiased judgment they ought to be left without dictation on the part of this tribunal, which can only revise such decisions after the parties shall have been heard and the judgments and decrees regularly entered by the District Court, and the parties have taken their appeal from the same.
I see no other way of disposing of the case, than to exert the power of this court, and compel the Judge of the Second Judicial District, to recuse himself, or to try the case, and either dismiss the cause or render judgment thereon, in favor of the party justly entitled thereto.
With the views I entertain, I do not think it proper to express an opinion upon the merits of the controversy. The defendant has not even excepted to the plaintiff’s petition, and it is not yet known what line of defence he may assume in his pleadings in that suit. It may be that what appears doubtful to me in these proceedings now, may be made certain whenever the parties shall be heard upon such issues as they make in their pleadings.
Neither do I consider it a sufficient objection to the rule, that the proceeding which the party has selected is expensive. If it is not founded in law, it is in the power of the defendant to cause it to be dismissed without any considerable cost. If it is an action which can be maintained, the cost of the proceeding is no objection to it.
*94The ease of Tappan v. Foute, is not applicable lo this case, because the Second Judicial District Court, for the parish of Plaquemines, is one of general jurisdiction.
But it is said, that this court will issue the writ of mandamus only in aid of its appellate jurisdiction, and as the District Court has no original jurisdiction of the cause, this court has no appellate jurisdiction of it, because an appellate jurisdiction necessarily requires an original jurisdiction.
The thing demanded is an office which the petitioner alleges is worth §10,000.
The Second District Court, as was just observed, is one of general jurisdiction. The thing demanded was, therefore, within the jurisdiction of that court, or none.
If it was within the jurisdiction of that'court, this court, whose powers are derived from the Constitution, and not from the Legislature, must have appellate jurisdiction, because the thing demanded is over three hundred dollars. If the District Court has not jurisdiction of the thing, because it is a easus omissus, then this court would have jurisdiction to revise any judgment of that court, wherein it should decree the office to belong to the relator, and this is precisely what this court did in taking jurisdiction in the case of Tappan v. Foute. If the court had no appellate jurisdiction in that case, it had no power to render the decree it did.
Then, if the Second Judicial District Court for the parish of Plaquemines, has jurisdiction of the relator’s demand, and can render judgment in his favor; this court can examine that judgment, because the thing in controversy is over three hundred dollars. But if the said court has no power to decree what the plaintiff demands, then this court has jurisdiction on appeal to reverse any judgment of that court which shall not dismiss relator’s demand, and to render such judgment as that court ought to have rendered.
I am unwilling, on account of the mere inconvenience which this proceeding will occasion, to sanction any but the regular modes of determing this as well as all other causes. And I am, therefore, of the opinion, that a peremptory mandamus should issue in conformity to the rule issued by the court in this case, in order that said cause may be dismissed or tried on its merits, and detei mined according as the right shall appear.