Dissenting Opinion.
Nicholls, O. J.The plaintiff alleges that on the 5th of July, 1892, in the suit of John Rocchi vs. Angelo Demma, he obtained judgment in the First City Court of New Orleans against the defendant, Demma, for the sum of $59, with 5 per cent, interest from April 30, 1891, and costs of suit. That this judgment was rendered in open court and in presence of defendant. That subsequently defendant filed an application for a new trial, which application was .regularly fixed for hearing for July 26, with the consent and *539knowledge of defendant and his attorney, and being taken up according to assignment, the same was dismissed. That thereupon che judgment became final, and no appeal having been taken there - from execution issued thereon, and under a writ of ft-fa., which issued from the said First City Court, property belonging to the defendant was seized.
That subsequent to said seizure, on August 3, 1892, the defendant applied to the Civil District Court for the parish of Orleans for writs of prohibition and certiorari, to be directed against the plaintiff and the judge and constable of said First City Court, forbidding them from proceeding in said caase. That the application was allotted to Division “A” of the Civil District Court. That in obedience to the orders of court in said proceedings plaintiff and the said judge and constable appeared therein and excepted to the jurisdiction of the court and filed other exceptions, which exceptions were sustained and the application dismissed on the 29fch of November, 1892, which judgment is now final. That on the 22d of December, 1892, long after the rendition of the said judgment of the Civil District Court, the defendant attempted to induce the judge of the First City Court to grant him a suspensive appeal from the judgment rendered on the 5th July, 1892, which he properly refused to grant, for the reason that the delay under which said defendant was entitled to an appeal had long since elapsed.
That on the 23d of December, 1892, the defendant again applied to the Civil District Court +'or writs of prohibition, certiorari and mandamus against plaintiff and the said judge and constable, forbidding them from further proceeding in the matter of the said action in the First City Court, and ordering the judge thereof to send up a certified copy of the proceedings in said suit and to grant the defendant a suspensive appeal from the judgment therein rendered.
That this second application was allotted to Division “ D ” of the Civil District Court.
That on the day fixed for the hearing of. said second application plaintiff and the judge and constable aforementioned again excepted to the jurisdiction of said court and filed other exceptions, the first of which was to the effect that the said application was not properly docketed as required by law; the second that the said application was identical with and for the same cause of action as that filed by him and allotted to Division “A,” and therefore the judgment on the *540latter had acquired the force of the thing adjudged, as would appear by thejrecordinthat proceeding, annexed to and made part of the exception ; the third that the Oivil District Court was without jurisdiction to grant the writ and relief prayed for, the First City Court never having divested itself of its jurisdiction in'said suit, and the Civil District Court not being vested with supervisory control over any inferior court — that the exclusive control and general supervision over all inferior courts being vested by Art. 90 of the Constitution in the Supreme Court, it alone can issue the writs prayed for in said application ; the fourth • ‘that the First City Court not having divested itself of its jurisdiction over the said suit, if execution has improperly issued or prematurely in the judgment by it rendered, or if any errors were made by the clerk or officers of said City Court in the execution of its judgment, the only court competent to arrest any such errors and to determine or regulate the extent to which its judgment should be held entitled to receive execution was on proper application to said City Court to set aside or quash the writ therein issued, and that no such application has ever been filed in said City Court, and no attempt has been made to quash the said execution;” the fifth that the judgment rendered in said City Court was final on the day on which it acted on the rule for a new trial, to-wit: on the 26th of July, 1892, and the defendant would have been entitled to a suspensive appeal if he had made proper application and furnished sufficient bond within three days therefrom, and the effort of the defendant to appeal suspensively fromthe said judgment on the 32d of December, 1892, was of no effect, asthe legal delays had long since elapsed, as would appear annexed from the record and proceedings in the suit.in the First City Court, and made part of the exception. ■
That said exceptions were overruled improperly, and in violation of law and the rights of relator, the court made peremptory the writs issued on said application, and that in so doing, the judge of Division “D” exceeded his authority and jurisdiction; that no appeal lies from his decision, and that it is necessary that writs of prohibition and certiorari issue from this court, relator having no remedy by ordinary process of law.
Plaintiff prayed that a writ of certiorari issue commanding the judge of the Civil District Court, Division “ D,” to send to this court a certified copy of the record and all the proceedings in the matter of the said second application, so that their validity and *541legality may be ascertained, and that a writ of prohibition issue prohibiting the said judge from iurther proceeding in any manner, shape or form in said matter until further order of this court, and that after due proceedings the writs of certiorari, prohibition and mandamus issued by the said judge be annulled.
The district judge has filed an answer in which he denies all the allegations contained in relator’s petition, except such as he specially admitted. He admitted issuing and granting writs of certiorari, mandamus and prohibition in the matter of the second application referred to, entitled Demma vs. Judge First Oity Court, No. 37,612 of the docket of the Civil District Court. He avers that he issued the same in aid of his appellate jurisdiction as provided by the Constitution and laws of this State, and that all his acts and doings in the premises were strictly legal and regular, and he annexed as part of his answer the complete records in the suit No. 37,612 and also that of the suit No. 36,414 of the docket of the same court, being the first application for writs of certiorari and prohibition referred to by the relator.
The relator, Rocchi, instituted in the First City Court of New Orleans a suit against Angelo Demma for $59 with 5 per cent, per annum interest thereon from April 30,1891, and costs. The defendant filed an answer, the case was regularly assigned and tried and • judgment therein rendered in favor of plaintiff in the presence of the parties on the 5th of July, 1892. Under the law defendant had no rig.it to a notification of the judgment so rendered. C. P. 1086. < The defendant moved for a new trial; this motion was regularly assigned, tried and taken under advisement and finally disposed of adversely to mover, but in his absence.
He was not under the law by reason of that fact entitled to a notification of this ruling.
The judgment on the merits, which had been held up by this motion, became final on the day it was passed upon, and the delays both for a suspensive and a devolutive appeal commenced to run from that day. Three days from that date the defendant under the law lost the right of appealing suspensively from the judgment (C. P. 1139) and the plaintiff simultaneously acquired under the law the right of having execution issue under it (C. P. 1139) without let or hindrance from any appeal thereafter to be taken. “No appeal,” says Art. 1131 (referring to such a case), “ shall stay execution."
*542Three days after the motion for a new trial had been rejected, if no motion for a suspensive appeal was made, the jurisdiction op the First City Court quoad the execution op the judgment became as pixed and final as its jurisdiction will become absolutely fixed and final at the end of twelve months for all purposes whatsoever. The same facts which also fixed the right of the court to proceed to the execution, conferred a present property right on the plaintiff which could not be affected except in the mode provided by law. Art. 548 of the Code of Practice is express to that effect.
If, therefore, the three days’ delay mentioned ran in this case without any attempt to obtain a suspensive appeal, as is conceded on all sides as a fact, the First City Court had an absolute right and inside of its jurisdiction to issue a writ of fi. fa. on the application of the plaintiff, and if a writ issued, and under it a seizure of defendant’s property was made, as is conceded on all sides, the plaintiff acquired a privilege upon the property of which he could not be divested except in the mode provided by law (C. P. 548).
Assuming the law as to the delay for a suspensive appeal to be as stated, and the prohibition of Art. 1181 against the staying under such circumstances of an execution by an appeal, to be in full force, it is perfectly clear that neither the First City Court nor the plaintiff, could be legally stopped in the execution of the judgment, and if so stopped the stoppage must have been brought about by the exercise of power and not of legal right.
I am of 'the opinion that under the conceded facts in this case the defendant lost under the law his right of suspensive appeal; that the plaintiff had the legal right to ask, and the First City Court the right, acting in its clear jurisdiction, to issue a writ of fi. fa. That the writ legally issued, property of defendant was legally seized under it, plaintiff acquired a legal privilege, and that the court and the plaintiff had the undoubted right to proceed to the sale of the property seized and to its legal application to the payment of relator’s judgment.
Under such a condition of facts and law as is disclosed to us by the record, has this court the power, and if it has the power, should it exercise it in this case, in granting the relief asked for?
The respondent judge urges that we should not do so, for. the reason that his actions were strictly regular and legal, and his decision rendered in aid of his appellate jurisdiction and in the exercise of power granted him by the Constitution.
*543That we have the legal power to correct the action (under Art. 90 of the Constitution) of the district judge if wrong, is unquestionable. The only question, therefore, is whether the occasion is one which calls.for the application of that legal power.
It is claimed that this case being as to amount appealable to the Civil District Court, and that that court under Art. 135 of the Constitution having power to issue writs of mandamus, prohibition and' certiorari, and having done so, the decision if wrong was merely “erroneous” and not “null,” and must be “held to be” right, whether so or not.
The principle contended for is, that so far as questions of appeal are concerned in a ease appealable in amount, the decisions of the District Court are absolutely conclusive and not reviewable, and this, independently of the nature and character of the questions raised and determined. That this was so before the Constitution of 1879 is true. This court had on that subject and prior to that time, no control over the District Court, no matter how clearly and palpably it was acting illegally and wrongfully; it was then the court of last resort, just as is now this court in certain matters, our own decrees being “held” to be right for want of a superior tribunal, even though possibly they may be wrong. The Constitution of 1879 designedly altered the situation and power of the two courts, and unless we abdicate our duty, we can not go back to granting the absolute power of final decision over all questions of appeal to the District Court, which it had before 1879.
That Demma had the right to apply to the District Court for writs of mandamus, certiorari and prohibition in the Rocehi case is unquestionable, as was the right of the court to grant the alternative writs which it did, to hear the parties and to decide on the issues presented, for until this was done the District Court was not in position to know what the rights involved in the controversy were; but in passing on the questions it had, so far as the question of its own power was concerned, to decide according to law. Had the question before the court been disputed questions of fact, either as touching what delays had run or not, or of law and fact touching the merits of the cause, it would have required a very exceptional situation to justify us, in our opinion, in interfering, if at all. But where the questions at issue were not of that character, but involved purely and simply questions of law touching the measure of its oivn powers and *544the limit of those of the First City Court, a very different matter is before us.
It is perfectly obvious in ruling as he did the judge of Division D not only disposed of the particular case of Rocchi vs. Demma, but he announced a rule of action which was to govern in the future (so far as the First City Oourt was concerned and all suitors therein, whose affairs might fall by allotment to that particular division) all cases in the First City Court, a rule of action having, under my interpretation of the law, no foundation in law.
When the judge of Division D decided as a matter of law, that where a judgment between two parties is rendered in the First City Oourt in presence of the parties and the defendant being cast moves for a new trial, which is overruled in the absence of the mover, the defendant is entitled to a delay of three days for a suspensive appeal from a notification to him of the action of the court on the motion for a new trial, he decided directly against what I think to be the law, and subjects the First City. Oourt and suitors in the First Oity Oourt to a rule of action and to conditions not fixed and enacted by the law, but by a decision of the judge of Division D of the Civil District Oourt, this “rule of action and conditions,” contrary to the law, the district judge had no right to establish. We are dealing with no question of arbitrary action on his part; it is simply a question of power, as to which he was mistaken. If power was wanting, conscientious and honest convictions can not save the case.
If the judge of Division D could finally fix and determine a rule of action in this matter for his court, the judges of the other divisions of the same court and the judges of the different District Courts of the State would have an equal right to do so, and thus with a single law we would have the rights of citizens of different localities and in different jurisdictions, governed by different rules, according to mere chance and the varying opinions of judges.
One of the principal reasons for granting this court supervisory jurisdiction was to settle questions involving the power and jurisdiction of courts and to bring about uniformity of action among the different judicial tribunals of the State. We can'imagine no more fitting case for the application of our power of control, for, independently of general grounds, a very great injury has been done to the relator personally. The effect of the action of the District Oourt in perpetuating the writs of prohibition and certiorari and making the *545mandamus peremptory will be, if not corrected, to quash immediately and beyond remedy a privilege legally acquired under a writ of fi. fa. legally issued by a court acting within its undoubted jurisdiction. Were the appeal taken up under the action of the court, and the judgment of the court below on that appeal sustained, no issue would or could be raised on that appeal, as to the question of the suspensive character of the appeal, the issue having been one originating and determined subsequent to the judgment appealed from.
If the proposition be granted that the First City Court, under the facts of this case, had an absolute legal right to proceed with the execution of the Rocchi judgment, the unavoidable necessary consequence follows, that the Civil District Court had no legal authority to interfere with it; for to say that one court has absolute jurisdiction for a certain purpose, and that another court has at the same time jurisdiction to interfere with it, is as legally impossible as to say that two bodies can occupy the same space at the same time.
If such interference takes place, there must be wrong somewhere.
The error here is in the District Court in respect to its statutory jurisdiction in a class of cases of which the case at bar is one.
It will rot do for the distriot judge to say that because his court had as to amount appellate jurisdiction over this case, that his power over all matters connected with the appeal is absolute.
The Constitution has provided a judicial system, established different courts — defined the jurisdiction of each, and to a certain extent their mutual relations toward each other — it has also recognized and guaranteed certain rights as to judicial proceedings, and among other rights that of appeal; but on this last subject it has left open for legislative judgment and discretion the time, place, character and effect of the appeals, the laws as to which constitute a jurisdiction in the courts of a subordinate character — a statutory jurisdiction to which* the courts are as bound to conform when the constitution itself is not transcended thereby, as they are to their constitutional jurisdiction.
There is no inconsistency between the right of appeal being open to Demma, and to his right being cut off under certain circumstances of preventing the execution of the judgment pending the appeal. The Legislature had the constitutional right to regulate that matter, and it has done so; it might have still further curtailed his right and that of the District Court over the subject matter had it thought proper to have done so. The Legislature has declared that this right *546could only be exercised at certain times and under certain conditions, and has expressly declared that unless such conditions are complied with, no appeal shall stay the execution. The grant of power to the First City Court to proceed, is the limit of the measure of the Civil District Court to interfere; if that court passes the limit so affixed it exceeds the bounds of its jurisdiction on this particular point, though it may have jurisdiction over the subject matter in other respects, and prohibition lies both under Art. 90 of the Constitution and under Art. 845 of the Code of Practice.
But it is said we should not take action in the matter because the decision of the District Court, if wrong, was simply an “error of judgment.” It was unquestionably an “ error of judgment,” but not one of such a character as that which is referred to in the general use of that term as applied to prohibition, certiorari and mandamus, and as not forming properly matters of correction through those remedies. The error here, is not in respect to the regularity of the proceedings or the facts of the case, but as to the power of the court; an error on that point we think it is our duty to rectify.
If a district judge, having in a case appealable merely as to amount been applied to undei^his supervisory power over the First City Court, to force that court to grant an appeal which it had refused when all parties conceded that fourteen months had elapsed since the signing of the judgment, had made peremptory a mandamus to that effect on the ground that sixteen months and not one year was the legal period under which an appeal would lie, I do not admit that because the case was within the appellate jurisdiction of the District Court merely as to amount that the order of the court would not be reviewable by us under our own supervisory powers. I see no difference in principle between that case and the one at bar, except that instead of a question involving the legal time for a devolutive appeal, the question presented was as to the legal condition under which a judgment could be “suspensively ” appealed from.
If the legal premises on the subject from which the judge acted had been correct, we ought to leave untrammeled in his hands questions of law within and subordinate to those correct legal premises; but if his premises were wrong in point of law, we ought to place him right on that point.
The First City Court had jurisdiction quoad the execution of the Rocchi judgment; the Civil District Court had not. C. P. 846.
*547Under Section 781 of his book on Extraordinary Legal Remedies Mr. High, speaking of prohibition, says: “The province of the writ is not necessarily confined to eases where the subordinate court is absolutely devoid of jurisdiction, but is also extended to cases where such tribunal,' although rightfully exercising jurisdiction of the subject matter m controversy, has exceeded its legitimate powers.”
In a note under that section, Justice Selden is cited as saying: “ It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some cause or proceeding over which it has ho control. But the necessity for the writ is the same where in a matter of which such tribunal has jurisdiction it goes beyond its legitimate powers, and the authorities show that the writ is equally applicable to such a case,” citing as an example the case where after a conviction for felony the court had at a subsequent term granted a new trial upon the merits.
Mr. Jacob is also quoted as saying, in treating of the writ, “ that it may issue to inferior courts of every description whenever they attempt to take cognizance of cases over which they have no jurisdiction, or if in handling of matter within their jurisdiction they transgress the bounds prescribed to them by the laws of England.”
Reference is also made to Lord Kenyon, who, after admitting that for a mere error in giving a judgment which the court had power to render the writ would not lie, said: “Now in this case, with respect to the compelling of a production of the church wardens’ accounts, the spiritual court had exclusive jurisdiction, but there their authority ceases, and everything which they did afterward was an excess of jurisdiction for which a prohibition ought to be granted.”
The author says of these citations: “These cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction no less than when the entire cause is without its jurisdiction.”
In the case of Windsor vs. McVeigh, 93 U. S. 274, the Supreme Court of the United States declared that the doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment, however erroneous, can not be collaterally assailed, was, like all general propositions, subject to many qualifications in its application. That all courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as *548civil or criminal; or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character, such as arise on navigable rivers or relate to the testamentary disposition of estates, or to the use of particular process; that though a court may profess jurisdiction of a cause, of the subject matter and of the parties, it is still limited in its mode of procedure and in the extent and character of its judgments; that it must act judicially on all things and can not then transcend the power conferred by the law. That the doctrine referred to was only correct when the court-proceeds after acquiring jurisdiction of a case according to the established modes governing the class to which it belongs, and does not transcend in the extent or character of the judgment the law which is applicable to it.
I find in the case at bar as a fact that the district judge has interfered, is now interfering, and will continue to interfere with the execution of a judgment in the First City Court over which that court had and has now jurisdiction for that purpose, and the execution of which the Civil District Court had no legal authority to stay by appeal, and that he has illegally, without authority and without remedy to the party aggrieved, quashed a writ of fi.fa. legally issued by the First City Court acting within its fixed jurisdiction for that purpose, and illegally without authority deprived the seizing creditor of a privilege on property seized under the writ. Finding these facts and having the unquestionable legal constitutional power of affording relief, I think in the exercise of our discretion under that power it should be granted. C. P. 846.