Armstrong Furniture Co. v. L. Lecompte & Co. , 2 McGl. 385 ( 1884 )

On the Merits.

The facts of this case are fully stated in the opinion of this court in the motion to dismiss. Defendants in their brief upon the merits do not attack the finding of the court a quo relative to the nature of the transfer to Fendez. They content themselves with simply demanding the dissolution of the attachment and a denial of the privilege. The language of said brief is as follows; — “the only question which the appellant seeks to bring to the attention of the court is whether or not the attachment, with the privilege attending it, should have been mantained.

We have mentioned the fact that the judgment appealed from does not follow the prayer of plaintiff’s petition by cancelling the transfer only so far as it affected said plaintiff, but that it annulled the same in toto and ordered a general distribution of the property among all the creditors.

Now comes the appellant into this court demanding not that this decree be amended or in any manner altered so as to make it conformable to the prayer of the petition and hence within our jurisdiction, but simply asks for a reversal of a portion that does not relate to or affect jurisdiction.

We confess to being placed in a dilemma by the aspect the case has thus assumed. If the judgment coming up from below is in the main to stand without disturbance, the controversy is one beyond our cognizance, and we have as little authority to affirm the part that maintains the attachment and privilege, as we have to give our sanction to the principal or most important decretal, whereby a transaction touching property worth several thousand dollars is annulled in toto.

Nor can we accord to parties a relief which they do not ask, and amend the judgment of our own motion, so as to reduce it to that over which we have authority.

Rehearing refused June 23, 1882,

We see but one way by which this difficulty may be justly solved. If the litigation has assumed a character different from that which it originally presented it is by reason of the commission or omission of the defendant, appellant. We can view the clause quoted from their brief in no other light than as a partial acquiescence in the judgment appealed from. That acquiescence relates to the very portion which has enlarged the controversy, and it must be allowed an effect similar to that which follows the admission without objection of evidence beyond or contradictory to the pleadings. In the latter case, the petition will be considered as amended by tacit consent of the parties, and then must be held to involve the new issues and not the old ones.

As, upon trial of the motion to dismiss, it was in no manner suggested that the evidence in the case went beyond the pleadings, we did not consider ourselves justified, at that time, in making an examination of such evidence. Neither did we consider ourselves called upon or even authorized to read thé briefs upon the merits or in any other way acquaint ourselves with such merits. State ex rel LeCompe vs. Judge, 1 McGloin 11.

Now, however, we perceive that the finding of the judge a quo upon the merits in the particular respect under consideration has the ratification of all parties and the character of the cause is therefore fixed beyond any power or authority upon our court rightfully to disturb it. The legitimate consequence is that we discover upon our docket a controversy that is beyond our jurisdiction, and we must dismiss the appeal, ex propria motu; Bloss vs. Lindot, No. 128 on docket of this court. State ex rel vs. Judges, 33 La. Ann. 1353; Lobe & Bloom vs. Arent et al, 33 La. Ann. 1086. Appeal dismissed at appellant’s cost.

by Rogers, Judge.