Tbe opinion of the court was delivered by
Watkins, J.Alleging that in a criminal case pending in his court,, the respondent granted an order of suspensive appeal in favor of the defendant, returnable to this court within ten days, from a decree disallowing a change of venue; and averring said decree to be-absolutely null and void, the relator prays for certiorari to bring up *788the record from the respondent’s court, to the end that the proceedings may be examined and declared absolutely illegal and void; and Jor mandamus to compel the respondent to proceed with the trial of the aforesaid cause.
The principal question we have to examine and decide is, whether relator is entitled to relief by- certiorari; the mandamus is subsidiary thereto, and can not be made'effectual without the illegality of the proceedings is first ascertained and decided.
In the brief of relator no authority is cited in support of relief by •certiorari; consequently, we must make an examination of authority for ourselves.
The province of certiorari is to bring up to this court “a copy of proceedings in a suit pending (in the court of the respondent) to the end that their validity may be ascertained” (C. P. 855) ; and “ finding that the proceedings are regular, * * * it shall dissolve the order it has issued.” C. P. 865.
In State ex rel. Matranga vs. Judge, 42 An. 1089, this court interpreted the relief that is afforded by this writ thus:
“ Certiorari has never been employed to inquire into the correctness of the judgment rendered where the forms of law have been followed and where the court has jurisdiction, and was, therefore, •competent.
“Hence it has been held that the supervisory jurisdiction of this •court under certiorari must be restricted to an examination into the ■external validity of the proceedings held in the lower court.
“It can not be exercised to review the judgment as to intrinsic •correctness, either on the law or on the facts of the case.
“The supervisory power of this court must not be confounded with its appellate jurisdiction.”
And to the same effect are the following cases: State ex rel. Valeton vs. Skinner, 33 An. 257; State ex rel. Gooch vs. Justice, 38 An. 968.
In State ex rel. Block vs. Judge, 41 An. 179, the court said:
“The remedy (by certiorari'), it has been freqently held, can be invoked only to ascertain the validity of the proceedings before an inferior court on the face of the papers, and never to inquire into the ■correctness of decisions, whether interlocutory or definitive, made in •the case.
“Were it otherwise, all cases which are not not now appealable *789could be reviewed effectually by the superior court as if they were appealable; and so every judgment rendered by justices of the peace and by District Courts, from which no appeal lies, could be taken to this court and reviewed on their merits, and the judgment annulled or affirmed,” etc.
In State ex rel. Chandler vs. Judge, 43 An. 826, we said:
“ The supervisory jurisdiction of this court must not be confounded with its appellate jurisdiction. Proceedings (by certiorari) have for their object to ascertain, not the correctness of a judgment, but the validity of the proceedings in the inferior court, on the face of the. papers.”
In the earlier decisions of this court which were rendered soon after the adoption of the present Constitution, Art. 90 of which confers upon this court “ general supervision over all inferior courts,” are fouud much the same expressions as those we have cited above.
For instance, in State ex rel. Wintz vs. Judge, 32 An. 1225, the court used this language, viz.:
“The Constitution intended that our supervisory jurisdiction should be distinct, in nature as well as in name, from our appellate jurisdiction.
“ The former was intended simply to enable us to compel inferior courts to perform their functions, to prevent them from exceeding the bounds of their jurisdiction, and to enforce observance of that regularity in their proceedings which is essential to fairness in the conduct of contradictory litigation.
“Mere error in the decision of questions properly submitted to their determination, and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.’’'’
That decision was examined and approved in State ex rel. Patton vs. Judge, 40 An. 393.
In State ex rel. Weber vs. Judge, 32 An. 1092, the court said:
“ A certiorari should not be granted when there exists a remedy by appeal.”
In State ex rel. Unbehagen vs. Justice, 35 An. 365, it was held that this court, “ in the exercise of its supervisory powers over inferior courts, will not transform itself into a court of appeal for the revision of the rulings of such courts.”
*790In State ex rel. Insurance Company vs. Judges, 36 An. 316, the court said:
“ For this court (by means of certiorari') to undertake to revise (a) judgment would be to exercise a purely appellate jurisdiction which, :in such matters, we have uniformly declined to do.”
In State ex rel. Race vs. Judges, 37 An. 120, the court said:
“ Certiorari issues only to test the validity of proceedings, and not the correctness of judgments by courts of competent jurisdiction. It serves to pass upon questions of form, and not of substance.” State ex rel. Wood vs. Judge, 38 An. 377.
In State ex rel. Chandler vs. Judge, 44 An. 567, we said:
“ Writs of certiorari can not be allowed in appealable case to reverse interlocutory decrees rendered therein. Such decrees may be revised and corrected on appeal.”
The most recent expressions of opinion by this court are of similar import. State ex rel. Liggins vs. Judge, 47 An. 1022; State ex rel. Bassetti vs. Judge, 44 An. 1093; State ex rel. Morere vs. Judge, 44 An. 1100; State ex rel. Waller vs. Justice, 47 An. 27; State ex rel. Evershed vs. Judges, 47 An. 180; State ex rel. Manning vs. Justice, 47 An. 1085.
A very careful examination of the decisions of the court embracing a period of fiften years, clearly indicates its determination to adhere to the terms of the Oode of Practice which define the scope and province of the writ of certiorari; for it provides that this writ is granted only “in cases where the suit is to. be decided in the last resort, and where there is no appeal by means of which, proceedings .,absolutely void might be set aside.’’ C. P. 857.
Consequently, this court can not exercise a jurisdiction by cer-tiorari over the respondent’s decree, because full relief can be .afforded relator on appeal.
It is of the respondent’s order of appeal of which the relator complains; and, as in the due course of proceedings, the transcript will be on file in this court within ten days thereafter, it will be in order ■for him to lodge a motion to dismiss the appeal upon the grounds ■stated in his petition. Indeed the relator informed this court upon the date of submission that the transcript of appeal had already been prepared by the clerk of court and was in readiness to be filed.
There can not be the least doubt of the rule of practice being, that the regularity and legality of an appeal must be determined by the *791■appellate tribunal acting in the exercise o£ its appellate jurisdiction, and in the cause on appeal.
This is the law and the jurisprudence, as well. This identical question was examined and decided in State ex rel City vs. Judge, 45 An. 950, wherein the respondent made return that he had granted the .appeal (complained of) under and in conformity to the provisions of Art. 571 of the Code of Practice, as he was bound to do.
“ That this court had jurisdiction of the parties and of the subject matter of the suit. That the appeal had been perfected, and that his action is not open to review by certiorari.
“He further shows that certiorari can not be substituted fora motion to dismiss the appeal in question antecedent to the return •day thereof.”
And upon due consideration of the record in which the appeal was taken and the statement of the respondent judge in his return, we •said: “There is no escape from the conclusive force of the reasons assigned by the respondent judge.
“The only purpose of the writ is to test the validity of the proceedings. C. P. 855, 857.
“The case brought up is an appealable one, and the relator’s complaint is that it has been appealed to this court, but improperly.
“The orderly and proper course for relator to have pursued was to await action in this court on the appeal. It has mistaken its ■remedy.”
That opinion forcibly presents the same issues which relator has raised herein. He has offered the writ of certiorari as a substitute for a motion to dismiss an appeal, before the transcript has been filed or the return day has arrived, contradictorily with the judge alone, and in the absence of the appellant.
And in respect to the remedy by appeal we find the controlling principle nowhere more correctly or accurately stated than in State ex rel. Meaux vs. Judge, 47 An. 950, in which Justice Miller, speaking for the court, said: “On a question of the right of appeal, we think the doubt should be resolved in favor of the appeal, especially ■as on the development of the case the court can dismiss the appeal if it is manifest there is no jurisdiction.”
It is manifest that this course can not receive the approval of this •court.
*792Once establish the rule that under a writ of certiorari the legality of an order of appeal is intrinsically examinable, and this court-would heap upon itself a mass of litigation it would be wholly ineap - able of dealing with. To thus hold would be a departure from our well-established jurisprudence, and at variance with the precepts of the Code of Practice.
Some reference has been made to the case of State ex rel. Brouillette vs. Judge, 45 An. 244, as announcing a contrary principle; but this is an erroneous supposition.
The opinion says:
“Ordinarily we exercise such (supervisory) jurisdiction only in-unappealable cases, leaving errors committed hi appealable oases to-be corrected in the ordinary course on appeal.
“ But in the instant case it can not be determined whether they are appealable or not until after trial and sentence.”
Reference is also made to the case of State ex rel. Rocchi vs. Judge, 45 An. 532; but it is sufficient answer to say that the case stated only involved fifty-nine dollars and sixty-five cents, and was not, consequently, appealable to this court; and hence, the only remedy was-by certiorari. State ex rel. DeBuys vs. Judges, 32 An. 1256.
On thorough examination of all the decisions of this court with regard to relief .by certiorari, we are satisfied that relator is entitled to no relief in the present form of action.
It is therefore ordered and decreed that the provisional order herein rendered be set aside, and relator’s demand be rejected at his • cost.