dissenting. James P. Guinault obtained an order of seizure and sale against the property of Marie L. Beebe. The property was seized and was ordered to be sold. Marie L. Beebe presented a petition to the judge of the Sixth District Court of the parish of Orleans (the court from which the order of seizure and sale issued) alleging that, at the time the note upon which the order of sale issued was executed, she was under age; that it was not given for her benefit, or for the use of her property, all of which she alleges was known to Guinault; that she was induced to sign the note by his false and fraudulent representations, and that the consideration for which it was given had entirely failed. She prayed for an injunction against Guinault and the sheriff, staying the sale. The district judge, instead of acting at once upon the application, granting or refusing it, ordered Guinault to show cause why the injunction should not issue. Guinault showed cause, and the injunction was refused. The relator now applies to this court for a mandamus compelling the district judge to issue the injunction as prayed for.
No appeal is asked for from the refusal of the judge, on the trial of the rule nisi, to grant the injunction, nor do I think that such a proceeding would have been the relator’s remedy. It has, I know, been held that an appeal will lie from what is termed a judgment on a rule nisi where no objection is made to the proceeding. Therefore, if the proceeding by rule be acquiesced in, the judgment thereon will still be subject to our revision. Ordering a party who asks for an injunction to take a rule upon the party against whom the injunction is asked to show cause why it should not issue, is a rule of court, or practice, sometimes resorted to by the judges of the district courts. It is, I think, a good rule; but it is, I apprehend, simply used as a precaution. The action of the district judge in such a proceeding is no more and no less a judgment than if he had refused, or granted the injunction without it. If he refuses to grant the injunction asked of him, without a rule having been previously taken, no appeal will lie, according to the decisions heretofore rendered. Therefore, if a rule is taken without objection, and the injunction is refused, then an appeal will lie. After all, what is it that an appeal is asked from in such a case ? Evidently, it seems to me, the refusal to grant the injunction; whether the refusal is given by the district judge without a rule or with a rule, is a matter of indifference .to the party whose rights, it may be, have been denied him. The rule, in the end, is only a preliminary proceeding, and could not result in a decision of the controversy between the parties, even if the decision of the judge thereon was passed *909upon here. For instance, ii the judge orders a rule to be taken by A against B to show cause why an injunction should not issue against him, and upon hearing the rule the judge should refuse the injunction, and, upon appeal, we should decide that A was entitled to the writ, what would be the result ? Would we issue it ? No, for we have no original jurisdiction in such a case. Would our saying that A was entitled to the injunction be, of itself, an injunction ? Evidently not. The only result of our judgment would be that the district judge would issue the injunction, and thereupon the litigation between the parties upon the subject of the injunction would begin, which litigation would only be ended by us on appeal from a final judgment therein rendered.
Whether a rule is to be taken or not, is within the exclusive direction of the judge. He may, and I believe usually does, order it of his own .motion, as appears to have been done in this case. He may refuse it, if asked for by a litigant. If he orders a rule to be taken, and he refuses the injunction, his action is subject to revision. If he refuses the injunction without a rule, his action can not be revised. Thus the right to a revision of his proceedings is governed by the action, and the arbitrary .action, of the judge. I think this right is fixed by the constitution, and is regulated by the law, and that it exists independent of and despite of the district judge, and I do not think that any thing he can do can abridge, much less, destroy it.
But, to my mind, the serious question in the caséis, whether this court can, by mandamus, compel a district judge to issue an injunction. A majority of the court think that it can not. I think that it can.
The objection to our right to issue the mandamus, as I understand it, is that we have only appellate jurisdiction; that this jurisdiction relates to some judgment pronounced or act done by a district judge, and that .in the case before us the district judge has rendered no judgment and has done no act. I admit that we have only appellate jurisdiction. I do not contend that we have the power to issue a mandamus to a judge of inferior jurisdiction in any case over which we would not have appellate jurisdiction. ' I do not contend that we have the right to issue an injunction in limine litis. But I do contend that it is in the power of this court to compel a district judge to do his duty, and his whole duty, in all cases where the constitution intrusts us with a revision of his judicial proceedings. It is not denied that the matter in controversy between the parties to this suit comes within our appellate jurisdiction.
Now, a mandamus is an order issued in the name of the State by a tribunal of competent jurisdiction and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty, or quality with' which it is clothed. O. P. 829. The object of the order is to prevent a denial of *910justice, or the consequence of defective police, and it should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever. O. P. 830. It may be directed more particularly to judges of inferior courts, commanding them to render justice and to perform the other duties of their office conformably to law. C. P. 837.
In this case, the order (or writ of mandamus) issues not only when the-judges of inferior courts are guilty of a denial of justice, unreasonable-delay in pronouncing judgment in causes before them, but also if they refuse or neglect to perform any of the duties required of them by law, or which may enable the superior courts to exercise their appellate jurisdiction. C. P. 838.
Suppose a party is attempting to build a wall around a square of which the public has the use, and, injunction being asked for against him, the district judge refuses the writ, would the public be without-a remedy? Suppose A claims title as against B of a piece of real estate, and B is attempting to erect a building thereon which A thinks will be injurious to-his interests, and he asks the judge of his district for an injunction against him prohibiting him from erecting the building, and the judge-refused A, would A be without a remedy ? It would seem so, if the opinion of the majority be correct. And yet these are the remedies given by law, for the Code of Practice says expressly that the injunction must be granted “ when the defendant is in the act of building or constructing some work tending to obstruct a place of which the public has the use, and when the defendant has commenced some building or some other works on a real estate, the ownership or possession of which is contested by the plaintiff, or pretends that such building or works would be injurious to his interest.” C. P. 298. The same Code says the same thing as regards the enjoining of an execution when payment is alleged to have been made after judgment rendered, or when compensation is. pleaded against the judgment, or where the sheriff is proceeding on the. execution contrary to some provision of the law. O. P. 258, No. 10.
An injunction, like an attachment, a sequestration, or a provisional seizure, is a conservatory remedy which a party may obtain in order to give effect to the suit which he has brought or intends to bring. C. P. 208. And the Code of Practice declares when and in what cases it-may be applied for. When a litigant asks for one of them, and his demand is sanctioned by the law,, in my opinion, it is the duty of the judge to grant it.
If an attachment is asked for by me against the property of my debtor, who is a non-resident, and it is refused, I can not give the court jurisdiction, and can not, therefore, proceed against my debtor. Yet the law *911says that I am entitled to an attachment when my debtor resides out of the State and has property within its jurisdiction. If the judge refuses to cause movable property which I have sued for, and which is in the possession of the party sued, to be sequestered when I have made an affidavit that I feared he was about to remove the same beyond the jurisdiction of the court, pending the action, and tendered the bond required by law, any judgment which I may obtain declaring me to be the owner thereof would be worthless, if, pending the suit, the property was made way with. Yet the Code of Practice says that when one sues for the possession of movable property, and fears that the party having possession may send the property in dispute out of the jurisdiction of the court during the pendency of the suit, a sequestration may be ordered. C. P. 275.
If the judge refuses me a writ of provisional seizure, directed against the furniture of my tenant, who owes me rent, my security is taken away from me. Yet the Code of Practice gives to the lessor the right to obtain a provisional seizure of property used in the house or attached to the real estate which is leased. C. P. 285.
If a man obtains judgment against me, which I have paid, notwithstanding which he issues execution against my property, and advertises it for sale, if the judge refuses me an injunction prohibiting the sale, my property will be sold to satisfy a judgment which, I have already paid. Yet, under article 296, No. 10, of the Code of Practice, I would be entitled to an injunction.
It is within our power to issue á mandamus to courts of inferior jurisdiction, commanding them to render justice, to perform the duties of their office, to prevent a denial of justice on their part, and to prevent their refusal to perform the duties of their office in cases where we have the right to exercise our appellate jurisdiction. In the instances cited the parties asking for relief would have been within the letter of the law, and yet, if the district judge violated his duty and refused compliance with the positive commands of the Code, no remedy is within the reach of those whose rights were invaded, if the ©pinion of the majority prevails. Take the particular case before us. Executory process issued against the relator’s property. The property is seized and offered for sale by the sheriff. She alleges that the note, which the confession of judgment was given to secure, was given without consideration; that it was fraudulently obtained; that she was not of legal age when she signed it, etc. If what she alleges and swears to, be true,, an obligation is sought to be enforced against her which the courts would repudiate. Article 7á9 of the Code of Practice says that the defendant may obtain an injunction on alleging, under oath, any of the causes which prevent the *912sale of property mortgaged or otherwise bound by virtue of an act importing a confession of judgment.
In the case of the State vs. Bermudez, 14 La. 479, the probate judge was compelled, by mandamus, to appoint an under-tutor to a minor. The court said: “It appears to us the principal and material inquiry is, whether the judge of probates of the parish of Orleans is bound to appoint an under-tutor to minors whose domicile is in his parish. That is the first step to be taken for. (in?) the proceedings in relation to the security to be given by the tutors, and must be carried on contradictorily with the under-tutor.” The decree was that the judge of the court of probates proceed to take cognizance of the plaintiff’s petition, and to make an appointment of under-tutor. The general powers of this court with reference to the supervisory control which it has over courts of inferior jurisdiction is treated of in that decision by Mr. Justice Bullard with an ability which I can not hope to equal, and which only the already extended limits of this opinion prevents me from relieving it of some of its tediousness by giving it at large. I rely upon it, however, to sustain, in principle, the position which I have here endeavored to maintain.
In the case of the State vs. Lewis, 7 M. 457, where an appeal was asked for from the refusal of the district judge to grant-an injunction, and refused, this court, by mandamus, compelled the lower judge to grant the -appeal. This case was overruled in the case of State ex rel. H. Newgass vs. Judge of the Superior District Court, Opinion Book No. 44, folio 635. According to our jurisprudence, no appeal will lie from the refusal of a district judge to grant an injunction, and no mandamus will lie to compel him to grant one. Therefore, in such'cases, the litigant is completely at the mercy of the district judge. I can not reconcile it to myself that .siich a state of things exists.
I think that the sworn allegations contained in the relator’s petition made it the duty of the district judge to issue the injunction; that the matter comes within our appellate jurisdiction, and the text of the law which I have cited convinces me that where a district judge refuses an injunction to a party who is, under the law, entitled to it, it is not only within our power, but it is our duty, to compel him, by mandamus, to obey the behests of the law. The refusal of a judge to do a thing which the law says he shall do is as great a violation of the law as if he did a thing which the law says he shall not do. He may ruin a party by non-action as well as by action. It was to protect the citizen from the possible errors'of judges of inferior jurisdiction that appeals from their judgments are allowed to a higher tribunal. It was to protect the citizen in his rights that to courts of a higher j urisdiction was given the power to -compel judges of an inferior jurisdiction, by mandamus, to perform the ■duties which are devolved upon them by law, and to grant to litigants *913the relief which a-compliance with the terms of the law entitles them to.
In my opinion, the facts, as alleged and sworn to in the relator’s petition to the district judge, entitle her to an injunction, and, the district judge having refused it, I think the mandamus should issue as prayed for.