Fortier v. Gumelsky

A rule to show cause why an injunction obtained by the plaintiff, For-tier, should not be set aside, was made returnable on the 9th of the month.

Counsel for Fortier wrote to the judge, complaining that the time thus fixed was too short — indeed, was in violation of the rules of court, owing to intervening holidays — and asking for a continuance. The judge paid no attention to this letter, but proceeded to try the case at the time fixed, and to render judgment dissolving the injunction. This he did in the absence of Fortier and his attorney, but after they had been duly called at the door of the' courthouse, as customary in the respondent judge’s court.

On the day after the trial and judgment, i. e„ on the 10th, Fortier filed in this court the present application for writs of certiorari, mandamus, and prohibition.

[1, 2] Only in cases calling for the exercise of the extraordinary powers of this court under article 94 of the Constitution are the writs now applied for available for correcting errors below, after trial and judgment. This is not such a case, and could not be even if there had been error; and there was none, since a letter cannot be made to take the place of a regular appearance in court, and since the time fixed for the return was not in violation of any rule of court. This fact, by the way, did not appear when the order nisi herein was made, but does appear from the rules themselves, of which a copy is annexed to the return of the learned respondent judge.

Application dismissed at the cost of applicant

On Rehearing.

[3] In the opinion heretofore handed down 'herein no mention was made of the fact that a motion for a continuance was filed on the day for which the case was fixed for trial, and was overruled. Our overlooking this motion was due to the fact that no mention of it, or reference to it, had been made in the application to this court for the writs in question. For the purpose of affording this court an opportunity to repair said oversight the case was reopened. We have found the motion for continuance to have been without merit, and to have been properly overruled, not only for that reason, but also for the further reason that no counsel was present to urge it.

*771The opinion and. decree heretofore handed down herein are reinstated and made the judgment of this court.