14 La. Ann. 67 | La. | 1859
Rehearing
Same Case — On a Re-hearing.
The appellant, in his petition for re-hearing, refers us to evidence which was not noted in the transcript, nor indicated in a proper manner either in the written agreement of parties, or in the argument upon the motion to dismiss in this court.
The note of the evidence in the transcript is as follows :
“ Plaintiffs offer in evidence the mortuary proceedings of the estate of Samuel Broom.
“Also, copy of petition in the case of Fonda, executor, v. Broom <& Hennen.”
After appeal granted from the judgment of the District Court, the following agreement was entered into by the counsel of appellant and appellee.
“ It is agreed that the Clerk, in making up the transcript of the record for the appellant, may omit the mortuary proceedings in Samuel Broom’s estate, and the copy of the petition in Fonda, executor, v. Broom, & Hennen, introduced in evidence ; leaving to each party the right to refer, in the Supreme Court, to the transcript of record therein filed, containing said mortuary proceedings and petition.”
In the printed argument of appellant’s counsel, upon which the cause was submitted, the following passage contains the only indication of the record evidence intended by the above extracts from the transcript of appeal in this cause.
In this extract, no reference is made to any record of this court by its title or number, in which the evidence is to be found. Without such particular reference there was nothing before the court on which it could act.
The appellant seems to have supposed that it was the duty of the court to hunt up, among its records, the evidence alluded to, or to tax its recollections of appeals heretofore decided.
The practice of introducing all the mortuaria of a succession in mass, when it is only intended to prove a fact or a date, which may be shown by a particular document, is abusive, inasmuch as it is calculated to create unnecessary costs, and to confuse the issue.
We had occasion to say very lately in the case of Price v. Emerson, that it is not necessary to give in evidence all the mortuaria ; and that decision was only a confirmation of settled principles of practice.
We have thus shown that the opinion delivered in this cause was right in saying that “ the record does not show the amount in dispute between the parties appellant and appellee.” After that decision rendered, the appellant in his petition for re-hearing, informs os that the evidence upon which he relied is to be found in record No. 4698 of the docket of this court at pages 1 and 121. This information eomes too late. It is the settled practice of this court not to notice, in applications for re-hearing, points which were not made in the argument of the cause.
Re-hearing refused.
Lead Opinion
Certain heirs of this estate took a rule upon.the administrar tor, under the Act of 1855, p. 79, jS5, to show cause why he should not furnish new and additional security for his administration, on the ground that the present securities are insufficient.
They have appealed from a judgment discharging the rule.
The appellee now moves to dismiss the appeal, on various grounds, of which one alone requires notice, viz, that the amount in dispute does not exceed three hundred dollars.
The record does not show the amount in dispute; and this hiatus has not been supplied by an affidavit on behalf of appellants.
Appeal dismissed, with costs.
