Citizens' Bank v. Dubuclet

On Rehearing.

Howell, J.

Counsel for the bank press upon our attention the fact that the correctness and recognition of the claim herein against the State was definitively settled by a judgment of the Eighth District Court for the parish of Orleans, on the third of July, 1872, in the mandamus suit against the State Treasurer, represented therein by the Attorney General, who at the same time represented the State, and contend that as the said judgment is final, the unconstitutionality of the act authorizing the debt can not be raised in ' this proceeding, the object of which is only to injoin the Treasurer from paying any one until he shall have complied with the judgment in the said mandamus-suit by paying the plaintiff herein.

This position as to the right to question in this suit the validity of plaintiff’s claim is correct, but the remedy sought by injunction cannot be accorded. This is not the mode of enforcing or executing a, judgment in a mandamus suit.

The injunction was properly disallowed in the lower court; but as the judgment in favor of the bank in the mandamus proceeding is final and conclusive as to the existence and legality of the claim, we erred in making the constitutional question the reason for our affirmance of the said decree on the injunction. And we deem it unnecessary to express an opinion now upon the right of a court of justice to injoin the State Treasurer from paying certain parties to the prejudice of others, setting up an alleged legal preference.

For the reason herein given, it is ordered that our former decree affirming the judgment o'f the lower court remain undisturbed.