New Orleans City Railroad v. Crescent City Railroad , 33 La. Ann. 1273 ( 1881 )

Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellee moves to dismiss the present appeal on the ground that appellant has acquiesced in the judgment appealed from. The appeal is taken from a decree, rendered on plaintiff’s petition, ordering the removal of the cause to the United States Circuit Court.

Appellee charges that appellant has acquiesced in the judgment of removal by voluntarily appearing before the Circuit Court, and filing therein, and arguing by counsel, a motion to dissolve an injunction previously rendered in favor of plaintiff by the Civil District Court. To the motion of dismissal are annexed two documents; one, a certificate of the clerk of the Circuit Court, tending to show the appearance of appellant, and the other, a certified copy of the motion filed by appellant in that court, for the dissolution of the injunction, and of other proceedings had in the cause.

These documents come before us as original evidence, which, as an appellate court, we cannot consider. The question as to the power of this Court to pass upon evidence, outside of the transcript, in support of the charge of appellant’s acquiescence in a judgment appealed from, was at one time involved in some doubt.

But the doubt has been completely dispelled by the more recent decisions of this Court, and we consider the negative of that proposition as firmly settled.

The rule is now that the trial of such a question, requiring the investigation of original evidence, must be remanded to the court a qua; see case of Stinson vs. O’Neal, Opinion Book 52, page 390; 29 An. 576; 28 An. 274.

Appellee’s counsel suggests that we must take judicial cognizance of the matters and facts, recited and contained in the documents annexed to his motion, and supports his views by the following quotation from Greenleaf:

“ Courts take notice of courts of general jurisdiction, their judges, their seals, their rules and maxims in the administration of justice and course of proceeding.” Greenlf. on Evid., vol. , J 6. * * * “In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.” (Id.)

We fully recognize the doctrine thus laid down, which has always been practically followed by this Court.

But the doctrine cannot be extended so as to authorize this Court to take judicial cognizance of the appearance, acts and pleadings or motions of litigants in the Federal courts, or even in our own State courts.

The issue presented by the present motion necessitates a finding or decision on a question of fact, of which we cannot assume original jurisdiction.

It is, therefore, ordered that the question whether appellant has acquiesced in the judgment appealed from, be referred to the court a qua for trial according to law; and that its finding and judgment upon that issue be sent up to this Court in due eourse.