Lefevre v. Broussard, 2 Mart. 135

Lefevre v. Broussard

2 Mart. 135 | La. | 1812

By the Court.

An appeal surely lies from a judgment of nonsuit, if it was otherwise, the party injured would be without a remedy. For, although he might bring a new suit, the Parish Court would likely give the same judgment.

In ascertaining the value of the matter in dispute, we cannot travel out of the pleadings, and when the defendant has not, in his plea, averred that the value is below that mentioned in the writ or petition, but so small that the Court has no jurisdiction, he will be prevented from availing himself of this objection, which is only to be noticed in a plea in abasement, when it goes to the jurisdiction of the Court.

Likewise, if an appeal be prayed, and the matter in dispute be really of so little value, that an appeal does not lie for it, the appellee must set forth this matter on the record, so that the appellant may take issue on the fact-otherwise the *137Court will take it for granted that the ~ia1ue of the object is fairly stated ,by the original petition, and `will sustain the appeal.

FHI s ,opinion is supported by the argument of the Superior Court of North Carolina, in giving judgment in an anonymous case. 2 Ilayw. 71. County courts there are ousted of jurisdiction in all suits unc4er ~201. The plaintiff had a verdict for less than 201. and the County Court nonsuited him. He appealed, and the jury above found a verdict for upwards of 20l. the interest arising pending the suit having increased his demand. The ckfendant resisted entering the judgments. on the ground that the County Court had no ju-risciictioirof the case, at the inception of the suit, M'Coy, J. and Haywood, J. said-the defendant should have pleaded that the sum, really due to the plaintiff, was under 20l. at the time of the action commenced, and then the jury would have been bound to find the value at the commencement of the action, as well as the value at this day, and the judgment of the court would have been against or in favour of the plea, according with the ver-diet. Such plea would have admitted the execution of the instrument, and questioned only the quantum. 1 Wils. 19, 20. Had the plaintiff taken a writ of error upon the judgment of nonsuit, the Court could examine the record, to see whether *138the County Court had given a proper judgment: but, having appealed, it is to be taken that the complaint against the decision below, regards some mistake of the jury, and then therecan only be a new trial by a jury here. The safest way, therefore, must be to plead to the jurisdiction, and tie up the enquiry to the value of the demand, at the time when the action is commenced.

In the present case, the appellee might have placed the point he insists upon, on the record, which would have enabled the appellant to contradict it, and the Court to pronounce with safety. The objection, not appearing in the pleadings, cannot be noticed.

Appeal sustained.