C. H. Rice & Son v. Payne , 151 La. 949 ( 1922 )

On Motion to Dismiss Proceeding.

O’NIELL, J.

This suit was brought originally in the city court. The defendant, railroad company, filed an exception of no cause of action, which was overruled. The suit was then put at issue and tried on its merits ; and judgment was rendered in favor of plaintiff. On appeal, the exception of no cause of action was reargued and was sustained by the Court of Appeal. On application of plaintiff, a rehearing was granted, and the only question then argued was whether the petition disclosed a cause of action. The court overruled the exception of no cause of action and rendered judgment in favor of plaintiff, affirming the judgment which had been rendered by the city court on the merits of the case. The-case is before us on a writ of review, issued at the instance of the defendant.

[1, 2] Plaintiff has filed a motion to dismiss the proceeding, on the ground that the case was tried de novo in the Court of Appeal and the evidence was not reduced to writing. The rulings in Broderick v. Blunt, 120 La. 1051, 46 South. 20, and Gaiennie Co. v. Bouchereau, 130 La. 446, 58 South. 143, are cited in support of the motion. Our opinion is that the rulings cited do not warrant a dismissal of the proceeding in this case. The ruling in each of the cases cited was, not that this court would never review a case tried de novo in the Court of Appeal, but that this court could not, without the evidence, review a case depending upon a question of fact. In truth it was never contemplated, and is not intended by this court, that any case decided by the Court of Appeal on a question of fact should be brought here for review, even though the evidence be in the record.

In the ease before us, it was and is yet conceded by the relator, railroad company, that the allegations in plaintiff’s petition are true, and that the judgment complained of is correct, if the allegations disclose a cause or right of action. The opinion rendered by the Court of Appeal also shows that the only question presented is a question of law, i. e. whethen the facts alleged in plaintiff’s petition warranted the judgment that was rendered.

The motion to dismiss the proceeding is overruled.

ST. PAUL, J., recused.