judged, and decreed that the judgment of the district court herein be reversed and avoided, and that the plaintiffs have judgment recognizing them as lawful owners of the property described in the pleadings, and as such entitled to undisturbed and peaceable possession thereof," etc. (Our italics.) In the opinion of the respondent judges, upon an application for a rehearing, they make this statement of their reasons for refusing it, viz.: "Negrotto's exception that plaintiffs' petition disclosed no cause of action, if sustained, (as it was by the judge a quo,) puts an end to the suit, adversely to the plaintiffs. Such an exception is one of the peremptory class, to be tried and determined in limine. If sustained, it terminates the suit; if overruled, the defendant may answer over. Jennings v. Vickers, 31 La. Ann. 679. A decision maintaining an exception of this nature is necessarily a decision upon the merits, inasmuch as it decides that, admitting all the facts alleged to be true, in manner and form as alleged, the case stated in the petition is without merits in law. For the reasons stated in our original opinion, which go the root of the whole matter in holding that no state legislature has the power to enact such a statute as Act No. 82 of 1884 of the state, under the operation of whose provisions, exclusively, Negrotto claims title," etc. From the foregoing it appears that the respondents entertained the same idea of the effect of a plea of no cause of action, on the trial and decision of the case in their court, as they do in their return, to wit, that a joinder of issue upon an exception of no cause of action is, in fact, a joinder of issue between the parties upon all the merits of the case propounded by the plaintiffs, such a plea admitting that the facts alleged are true. But the contention of the relator's counsel is that the respondents' theory, in this respect, is altogether erroneous, and contrary to the established jurisprudence of this court; that the rendition of an absolute and final judgment against the defendant (relator here) on the state of the record as it appeared before the court of the respondents at the time it was decided by them was an absolute refusal to hear the defendant or his witnesses, in the sense of Code Pr. art. 857, the defendant not having filed an answer in the lower court, and no judgment by default having been entered up against him, or, in other words, before issue had been joined upon the merits of the controversy before the court of first instance. Relator's counsel further insists that such a judgment absolutely prohibits the lower court from entertaining any further pleading in the cause, or hearing any evidence therein; that it denies the defendant the right of filing any further plea or proof therein, or of urging any matter of defense whatever; that it arbitrarily takes his property, and turns it over to the plaintiffs, without their having offered any evidence in support of their title, or having had a day in

court; that all of these serious and fatal consequences flow from the fact that the respondents assumed, as matter of law, that a joinder of issue on an exception of no cause of action admitted the truth of all the aver ments of the plaintiffs' petition, and constituted "a joinder of issue between the parties upon all the merits of the case." Counsel for the respondents have furnished us with a large number of authorities touching the authority of this court to examine and determine the question presented for our consideration, and summarize them to the fol lowing effect, viz.: "The above authorities, and numerous others, show that, in a proceeding like the present one, the only questions that can be properly submitted to this court are the validity vel non of the proceedings of the inferior court on the face of the papers; whether or not there has been a usurpation of power, or an arbitrary refusal to hear the party complaining; whether or not he has been denied the substantial right to present to the court his case for its adjudication. The writ of certiorari cannot be made to perform the functions of an appeal. The court having jurisdiction of the case, and an issue within their jurisdiction having arisen, its conclusions upon that issue are final, and cannot be reviewed. There exists no power to weigh its reasoning, or to test the methods by which its judgment was arrived at. The record, in point of form, being complete, the intrinsic correctness of the court's doings within that record have been determined by the highest power known to the law, and are closed against any inquiry by this court. The court of appeals having made its adjudication upon a matter within its power to adjudicate upon pleadings made, its construction of these pleadings, and its conclusions as to what decree is responsive thereto, is inviolate, and is as beyond the supervisory power of any other tribunal as are the decrees of your honors, over which there may exist no appellate jurisdiction."

The foregoing propositions are, in the main, correct, and at the same time not inconsistent with the theory of the relator, which, as we understand it, places before us the invalidity of the proceedings had by the respondents in the suit of Haas v. Negrotto, and which he has had brought up, "to the end that their validity may be ascertained," (Code Pr. art. 855;) and, said proceedings being before us, his theory is further to the ef fect that the proceedings of the respondents are absolutely void in the various particulars enumerated, and should be set aside, because the respondents have, in effect, refused to hear the relator or his witnesses, (Code Pr. art. 857.) Assuming, in praesenti, that the relator's complaint is founded in point of fact, the law is clear, for it says: "If, upon examining the certified record thus sent, it shall appear to the court issuing the mandate that the proceedings are null, and have not been sanctioned by the party complain

ing of them, it shall avoid the proceedings and direct the inferior judge to try the case anew, in conformity with the provisions of the law." Code Pr. art. 864. From the foregoing plain, textual provisions of the Code of Practice, certiorari brings up to the court issuing the mandate all of the proceedings that are complained of as absolutely void, to the end that their validity be ascertained; and the court, finding the proceedings to be absolutely void, is bound to avoid them, and direct the inferior judge to try the case anew. And inasmuch as this court has "control and general supervision over all inferior courts," coupled with the power to issue writs of certiorari and the like, it has, and can exercise, supervision and control over the court of the respondents. Const. art. 90. This has been decided by this court in many cases, and notably in the following, viz.: State ex rel. Cobb v. Judges, 32 La. Ann. 774; State ex rel. Harper v. Judges, 33 La. Ann. 358; State ex rel. Winter v. Judges, Id. 1096; State ex rel. Gilmer v. Judges, Id. 1201; State ex rel. Cupples v. Judges, 34 La. Ann. 1016; State ex rel. Insurance Co. v. Judges, 36 La. Ann. 316; State ex rel. Forman v. Judges, 37 La. Ann. 111; State ex rel. Planting & Manuf'g Co. v. Judges, Id. 582.

Finding that it is the accepted theory of our jurisprudence, under the operation of article 90 of the constitution, that circuit courts of appeal come within its meaning and intendment, as "inferior courts," with respect to the exercise of the supervisory power of this court, we must ascertain what is the uniform and established jurisprudence of this court in regard to the scope and object of the plea of no cause of action,-that is to say, whether such a plea is such an admission of fact as to operate, between the parties, such a joinder of issue on the merits of the cause as to authorize the judge to try and decide the case finally, and without any other or further plea or answer on the part of the defendant. The correct rule is formulated in Conery v. Waterworks Co., 39 La. Ann. 770, 2 South. 555, in the following words, viz.: "It is the province of the appellate court to review the proceedings of the inferior court, and to determine whether its rulings and decrees therein embraced are right or wrong, and not to deal with matters and issues distinctly presented by the pleadings, but not considered or decided by that court. Rawle v. Skipwith, 19 La. 207; Bludworth v. Hunter, 9 Rob. (La.) 256; Hill v. Miller, 7 La. Ann. 622; McAlpin v. Jones, 10 La. Ann. 552; Gilly v. Roumieu, 11 La. Ann. 746; Lea v. Terry, 15 La. Ann. 159. We conclude, therefore, that it is proper to remand the case, that the all-important issue raised by the exception referred to, and not passed on by the court of first instance, may be there tried and determined." In Wood v. Henderson, 2 La. Ann. 220, the court said: "We are of opinion, therefore, that the petition for injunction did exhibit sufficient

ground for relief, and that the exception was properly overruled. But this did not justify the court below in proceeding further, and rendering, upon the exception, a final judgment in favor of the plaintiff in injunction. Upon the dismissal of the motion or exception, the defendants in injunction were entitled to file an answer in the cause, and put at issue the allegation of the plaintiff's petition." In Eulalie v. Long, 9 La. Ann. 11, it was held that an exception that the petition shows no ground of action admits the truth of all the allegations of the petition; but, if the exception be overruled, the defendant will have leave to answer over. In De La Croix v. Gaines, 13 La. Ann. 177, the court, in treating of an exception of no cause of action, said: "The district judge, conceiving that the second exception was well taken, dismissed the suit, and the plaintiff has appealed." In this view this court concurred, and remanded the cause to enable the defendant to answer, and "for further proceedings according to law." Vide Lea v. Terry, 20 La. Ann. 428. But perhaps there is no stronger or clearer case than that of Smith v. Donnelly, 27 La. Ann. 98, in which the court put their opinion in these words, viz.: "But we are unable to dispose of the case, and render a judgment in favor of the plaintiff, as he asks us to do, because no issue has been joined on the demand for the homologation of the award of the amicable compounders, and because the case was not tried, and no evidence offered, on the merits of the demand for judgment on the notes. We have no original jurisdiction of these demands." Keeping in mind the two recognized rules underlying the foregoing decisions: First, that, in case the plea of no cause of action is overruled, the defendant is entitled to file an answer, and offer evidence in his behalf; and, second, that while the plea admits, for the purposes of the trial and decision of same, that the allegations of the plaintiffs' petition are true, yet, when the same is overruled by the court, it does not become seised of jurisdiction of the merits until after answer filed and issue joined,— consequently, if, on appeal from a judgment sustaining a plea of no cause of action same is annulled and reversed, the appellate court cannot deprive the defendant of his right to answer and introduce evidence, nor can it acquire original jurisdiction of the merits; and it is with due respect to the opinion of our learned brothers of the circuit court that we submit that their judgment has done both, if it is to be maintained.

In our opinion, the question here is not one involving the correctness, regularity, or integrity of respondents' judgment, as such, but their right to render any judgment on the merits of the cause, for or against either party to the suit, in the condition of the cause then before them. There is certainly to be found no support for the position of respondents in Jennings v. Vickers, 31 La. Ann.

679. On reason and authority it seems evident that the proceedings in the respondents' court are wholly void, and same should be annulled and reversed and avoided, and respondents should be directed to try the case anew, in conformity with the provisions of the law. It is therefore ordered, adjudged, and decreed that the writ of certiorari be made absolute, and that the proceedings of the respondents be annulled and avoided, and that the respondents be commanded to try the case anew, and in accordance with the provisions of the law.

1. Where a bail bond is forfeited under sec tion 1032, Rev. St., and an appeal is taken from the forfeiture to this court, it is settled that this court has jurisdiction, regardless of the amount of the bail bond, if the same was given in a criminal prosecution within the jurisdictional power of this court; the doctrine being that in such a case the matter of the forfeiture is attracted to the criminal prosecution.

2. But this doctrine does not apply to a hail bond given before a recorder of the parish of Orleans for appearance at a preliminary examination before him, such a bail bond not being within the purview of section 1032, Rev. St., which applies to the forfeiture of bail bonds for appearances before district courts having criminal jurisdiction.

3. A bail bond for the appearance of an accused at a preliminary examination before a recorder of the parish of Orleans creates a lawful and binding obligation, and such a bail bond may be sued upon by a civil action in the civil district court for the parish of Orleans. where the amount of such a bail bond is only $500, this court has no jurisdiction on appeal. (Syllabus by the Court.)

But

Appeal from civil district court, parish of Orleans; Francis A. Monroe, Judge.

Action on a bond by the Louisiana Society for the Prevention of Cruelty to Children against Hugh C. Cage. From a judgment dismissing the action, plaintiff appeals. Appeal dismissed.

F. Rivers Richardson and W. S. Parkerson, for appellant. Clegg & Thorpe, for appellee.

PARLANGE, J. This is an appeal from the judgment of the civil district for the parish of Orleans, dismissing, on the ground of want of jurisdiction ratione materiae, a suit brought by the Louisiana Society for the Prevention of Cruelty to Children against the surety on a bail bond for $500, furnished by a person charged with crime, to insure his appearance for preliminary examination in the second recorder's court for the parish of Orleans. The accused failed to appear, as he had bound himself to do, and the

1 Rehearing refused February 5, 1894.

aforenamed society brought suit on the bond in said civil district court, alleging the right so to do under Act No. 32 of 1892. As to this right, we are not called upon to express an opinion. The defendant excepted in the civil district court that the matter of the suit is criminal, and not civil, and that, therefore, the civil district court had no jurisdiction. The exception was sustained.

In England, recognizances and bail bonds were estreated from the criminal courts, and removed into the exchequer. That the king might also maintain an action of debt, seems to be plain. The right of committing magistrates is clear, in proper cases, and under proper circumstances, to admit to bail, pending preliminary examination, persons charged with crime. It is difficult to conceive of a reason why the state cannot sue for the amount of a bond given in such cases, when the condition of the same has been violated. The act of April 2, 1832, allowed district courts to take certain proceedings with regard to bail bonds and recognizances, which this court held did not decree an absolute forfeiture, but operated similarly "to what is known in the common law under the term estreat,' which signifies extracted from the records of the criminal court, to serve as a foundation against the accused and his surety for a scire facias." State v. Dunbar, 10 La. 102. The act of March 11, 1837, re-enacted in 1855, and now section 1032, Rev. St., allows district courts having criminal jurisdiction to forthwith enter up judgment on a bail bond or recognizance, when the principal, on call made, fails to appear. In a number of cases this court has held that when a judgment is entered up on a bail bond under section 1032, Rev. St., an appeal from that judgment may be taken to this court regardless of the amount of the bond, if the same was given in a criminal prosecution within the jurisdictional powers of this court, because the matter of the bond is attracted to the criminal prosecution. This doctrine is clear, and has been settled by repeated adjudications. But the doctrine does not and cannot apply to a bail bond taken by a recorder of the parish of Orleans for the appearance before himself of a person charged with crime, for the manifest reason that there is no legislation, as in the case of district courts with criminal jurisdiction, conferring upon a recorder the power to enter up judgment on a bail bond. Therefore the law as to bail bonds taken by recorders for appearances before them is exactly what it was as to all the courts possessed of criminal jurisdiction, prior to the legislation which empowered district courts having criminal jurisdiction to deal with bail bonds returnable before them. It surely cannot be contended that prior to such legislation the state was powerless to collect the amounts of bail bonds returnable before committing magistrates, when the conditions of the bonds were violated. If the state could then do so.

did the conferring by the subsequent legislation of power to district courts having criminal jurisdiction to deal with the bail bonds returnable before them destroy or impair the right of the state to enforce bail bonds taken by the criminal courts inferior to the district courts? Clearly not. In the case of State v. Ozer, 5 La. Ann. 744, cited in State v. Recorder, 42 La. Ann. 1094, 8 South. 279, this court held, through Mr. Justice Preston as its organ, that a justice of the peace had the power to admit to bail during the pendency of a preliminary examination, and that an ordinary suit on the bail bond could be maintained. The defendant in that case urged that the justice of the peace had no power to proceed upon the bond in the summary manner provided by the acts of 1835 and 1837, and this court said: "In this they are certainly right, and it was that which rendered the present suit before the district court necessary to enforce the penalty of the bond. But it is further intimated that the summary mode of proceeding prescribed by those acts should have been pursued in this case in the district court. In this they err, because those laws expressly limit that remedy to bonds, recognizances, and other obligations made returnable before the district court, which was not the case with the bond sued upon. It was returnable before the justice himself, and we know of no remedy for the state to enforce its penalty but that which has been pursued by the district attorney by bringing an ordinary suit before a court of general jurisdiction." In the Case of Cassidy, 7 La. Ann. 276, which was a suit on a bail bond for appearance in a criminal case before the first district court of New Orleans, it was urged "that the obligation of the surety was a civil one only, and must be enforced according to the rules prescribed for civil actions." This court said, (also through Mr. Justice Preston:) "The forfeiture of bond by judgment has always been considered as a criminal proceeding, and, whether criminal or civil, was obtained in this in the mode pointed out by the act of 11th March, 1837, passed expressly for that pur pose. (Italics ours.) The two cases just cited, rendered by the same organ, far from being in conflict with one another, show the distinction between bail bonds forfeited under the act of 1837, (section 1032, Rev. St.,) which are attracted to the criminal prosecutions in which they are forfeited, and bail bonds which are not within the purview of the act of 1837. As showing the intrinsic civil nature of a bail bond, we may cite the Case of Norment, 12 La. 511, in which this court held that, notwithstanding the summary proceeding concerning bail bonds provided by the act of 1835, the district attor ney might bring an ordinary action. In Com. v. Green, 12 Mass. 1, it was held that the commonwealth might maintain an action of debt, though scire facias was provided by

the

case

statute. In State v. Hendricks, 40 La. Ann. 722, 5 South. 24, this court, speaking of the forfeiture of a bail bond, said: "Intrinsically, the proceeding may be viewed as civil in character. It is based on a contract under private signature on which a money judgment can be rendered which may be executed on the issuance of a fi. fa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offense." This court added: "In so saying we do not lose sight of the fact that it has been treated as a criminal proceeding in order to determine questions of jurisdiction in cases of appeals from judgments of forfeiture of bail bonds." This refers, of course, to bail bonds forfeited under section 1032, Rev. St., which, as already shown, come to us on appeal by virtue of the appealable character of the criminal prosecution to which they are attracted under that statute. But the bond in the instant case is not of that character, and is not within the purview of that statute. Other decisions of this court as to the civil nature of a bail bond might be cited. We are clear that this suit is a civil one, which the civil district court had jurisdiction to hear and determine; but for that very reason it is evident that this court has no jurisdiction of the appeal, which involves only $500. It is therefore ordered that the appeal herein be, and the same is hereby, dismissed, at appellant's costs.

(46 La. Ann.)

STATE ex rel. VIOLETT et al. v. KING, Judge. (No. 11,321.)

(Supreme Court of Louisiana. Jan. 2, 1894.) NUISANCE INJUNCTION-ACTION BY TENANT. 1. Where an injunction does not order the closing up of defendant's business, but restrains him simply from carrying it on in a manner resulting in an alleged continuing nuisance to the health and comfort of plaintiff and his family, it should not be set aside on bond, as the effect of the dissolution is to authorize and permit the defendant to continue to do the act complained of, and restrained during the pendency of the suit.

2. The law does not limit its protection to parties who are aggrieved in dollars and cents by a continuing nuisance. The fact that the plaintiff in injunction does not own the premises which he occupies, but occupies them as tenant, does not withdraw from him and his family the protection of the law against a nuisance affecting their health and comfort.

3. The failure of the owner of the property, who has joined with the tenant in an application for an injunction, to perfect the injunction by giving bond, does not destroy the right of the tenant, who is before the court standing on his own rights, and not depending upon those of the owner. to the benefit of the injunction, when he has himself given bond.

(Syllabus by the Court.)

Original application, at the relation of Penelope A. Violett and another, for mandamus to Frederick D. King, judge of the civil district court for the parish of Orleans. Granted as to one of relators.

Farrar, Jonas & Kruttschnitt, for relators. Frederick D. King, in pro. per.

NICHOLLS, C. J. The relators are Mrs. Penelope A. Violett, widow of the late William A. Violett, and Atwood Violett. They allege that they instituted suit in the civil district court for the parish of Orleans, in which suit they represented that relator Mrs. Violett was the owner, and relator Atwood Violett the occupant, of certain premises in their petition described, and that F. Johnson & Son, a commercial firm domiciled in the city of New Orleans, and the individual members thereof, had established a livery stable adjoining the property in said petition described, in which livery stable they kept a large number of horses; that from said livery stable arose the most offensive smells, and that the same caused swarms of insects to infest the premises belonging to said Mrs. Violett and occupied by Atwood Violett, and that said smells were so offensive and disgusting as to subject relator Atwood Violett, the occupant of said premises, to the most intolerable annoyance; that in said petition relators further represented that said livery stable, so located in the vicinity of said dwelling house as aforesaid, as also of other dwelling houses, and in a neighborhood of dwelling houses, and the business of conducting said livery stable at said location in the manner in which it was conducted, constituted a nuisance which relators were entitled to have suppressed, and praying for an injunction in the premises; that upon said petition an order was duly entered, ordering an injunction to issue in the premises, as by relators prayed for; that said injunction duly issued; that the defendants therein subsequently took a rule upon relators to show cause why said injunction should not be dissolved upon bond; that said rule was, after hearing, made absolute by the civil district court, and defendants allowed to bond said injunction, all of which, with other necessary particulars, it was averred would more fully appear from the record of said suit now pending in the civil district court, which is referred to as part of their petition, and which, in the original or duly certified copy thereof, would be presented to the supreme court at the hearing; that the injunction prayed for was not against the conducting of said livery stable, provided the same be conducted in such a manner as not to inflict a nuisance upon relators, but merely enjoined said defendants from continuing to conduct said livery stable in the manner and form in which they did conduct the same,-that is to say, in such a manner as to give rise to the most offensive and disgusting smells, rendering the dwelling house of relators untenantable; that, by said order to bond, an irreparable injury was and is inflicted upon relators, and they did seasonably apply to the court for a suspensive appeal from said order; but that the court, through Frederick

D. King, (the judge of division B thereof, sitting in lieu of the Honorable George H. Theard, judge of division E thereof, absent on leave, and to which division E said cause had been allotted,) who tried said rule, and to whom said application for an appeal was made, has wrongfully refused and declined to render an order of appeal in the premises. They prayed for the issuing of an alternative writ of mandamus to the judge of division B, sitting in place of the judge of division E, commanding him to grant relators a suspensive appeal (nunc pro tunc as of date of August 4, 1893,-date when application was made therefor) from the order allowing the dissolution of the injunction on bond. An alternative writ of mandamus having issued, the district judge has filed an answer, in which he declares that, on the trial of the rule to bond the injunction, it appeared that no irreparable injury resulted, or could result, from the act complained of, and that the damage complained of could be made good or repaired by the payment of money; that it appeared said premises of relator were leased, and that the only loss that could result was a loss to the tenant, appreciable in money; that the suit was brought jointly by Mrs. Penelope A. Violett as owner of the property, and Atwood Violett as tenant of the property; that no injunction had been issued on behalf of Mrs. Penelope Violett, the owner of the property, as no bond had been furnished, and the injunction issued was on behalf of the tenant of the property, and the dissolution of the writ was accordingly of the writ issued on behalf of the tenant; that the judgment dissolving the injunction was rendered in the exercise of the discretion vested in the court under article 307 of the Code of Practice. He prayed that the writ of mandamus be refused.

The application to bond contained no reasons for the same. It was a simple motion requesting, "on motion of counsel for defendants, that plaintiff's show cause on the 24th July, 1893, why the injunction should not be dissolved on defendants' furnishing bond conditioned according to law." The district judge, in making the rule absolute, declared that he did so for reasons orally assigned, and considering the law applicable to the case. We presume the reasons referred to were the same as those assigned in the answer or return herein. On the 20th July, 1893, defendants in injunction obtained a rule on plaintiffs to show cause on the 24th July, 1893, (the same day on which the rule on the motion to bond was returnable,) why the injunction issued should not be set aside on the grounds (1) that the court was without jurisdiction ratione materiae; (2) that, even if the court had jurisdiction, the allegations contained in plaintiffs' petition were untrue, and not such as would authorize the issuance of the writ; (3) that the petition on which the injunction issued set forth no cause of action; (4) the hond is not