28 La. Ann. 216 | La. | 1876
Lead Opinion
In April, 1874, this case was before this court and the judgment was annulled and reversed, and the case remanded with direction to the district judge to hear tho testimony offered by plaintiff on his mo
No time was fixed within which said submission of the case should be made. The matter was delayed for more than twelve months, and was neglected on account of the ill-health of plaintiffs counsel.
Plaintiff now takes a rule on defendant to show cause why the agreement should not bo carried into effect and tho case submitted on tho old record on file in this court when the case was decided in April, 1874.
When tho decision of 1874 was rendered this court was divested of jurisdiction, and tho case passed as fully under the control of tho district court as if no appeal had been taken. Now, what gives this court jurisdiction ? More than one year has passed and there has been no order of •appeal granted by tho judge, no bond has been filed, and no transcript lias boon filed. Is tho judgment of the court below to stand forever ? Assuming that the agreement of counsel could bo substituted for an order of appeal and bond, no action has been taken thereon within tho time allowed for tho exercise of the right of an appeal.
But the agreement of counsel can not vest this court with jurisdiction of a case in the absence of an order of appeal and an appeal bond. See tho cases of Dupré vs. Mouton, 23 An. 543; Norris vs. Warren, 22 An. 458; Louisiana State Bank vs. Barrow, 24 An. 276; Moore vs. Simms, 21 An. 649.
Tho Code of Practice points out the form to be pursued to transfer jurisdiction from tho inferior court to the Supreme Court.
It is therefore ordered that the rule herein bo discharged at tho costs of the mover.
Dissenting Opinion
dissenting. I am constrained to dissent in this case. When this case was before this court the judgment was annulled and reversed, and tho case was remanded on the ground that the court a qua should have received evidence on the motion for new trial. This court never passed upon tho merits of the case. After- tho case was returned to the lower court the now trial was refused, and thereupon, to save
In Norris vs. Warner, 22 An. 458, it was decided that “ the entry that a motion for appeal was filed, does not show that it was granted.”
In Dupré, etc., vs. Mouton, it was decided that an agreement entered on the minutes of the court, before judgment, giving to either party a devolutive or suspensive appeal from such judgment as might be rendered by the judge who had the case under advisement, was not an appeal. 23 An. 543.
In the case of the State Bank of Louisiana vs. D. N. Barrow et al., 24 An. 276, it was said: “We also find the agreement of counsel that one transcript shall be made for the two appeals taken, in this case,” and it was held that “ as neither of the appeals has been perfected, one for want of an appeal bond, the other for want of an order of appeal,” the appeal had to bo dismissed. It is true, in that case, it was said that consent could not give jurisdiction, but it was an obiter dictum.
The case under consideration is very different from the above cases. From the judgment of the lower court an order for an appeal teas regularly obtained, and the transcript of appeal was duly filed in this court, but the case was remanded on an exception, as already stated. After the appellant had failed to obtain the advantage expected by that exception, the agreement to submit the case on the record filed was entered into. If any valid objection could be urged against the submission under that agreement, it would be that the appeal was premature, as no judgment had been rendered by the court a qua, the former judgment having been annulled and reversed. But I can not appreciate the force of the objections urged against the validity of the agreement of the parties to submit to this court the determination of their disputes on a record which contained a judgment and an order of appeal, even though that judgment had been technically reversed for the purposes stated. It would be a vain thing to require the judge to render anew the same judgment, and take another order of appeal, and file a new transcript of appeal in this court, in order to enable this court to decide the case. Litigants ought not to be required to do a vain thing. But I understand