Bayles v. McGuffie , 116 So. 2d 211 ( 1959 )

HARDY, Judge.

This is a possessory action instituted by plaintiff by which he prays to be restored to the possession of a certain described lot of land located in the City of West Monroe, Ouachita Parish, reserving his right to subsequently claim damages resulting from the alleged trespass and disturbance caused by defendant. From judgment in favor of plaintiff the defendant has appealed.

The only issue tendered by this proceeding is that of possession, which, perforce, is dependent upon the resolution of facts established on trial.

Plaintiff acquired the property involved by purchase, as evidenced by act of conveyance dated February 7, 1946, and alleges continuous possession since said acquisition. Defendant admits the act of alleged disturbance caused by bulldozing operations upon the property described, but denied plaintiff’s possession.

Before this court defendant-appellant has filed a motion to remand, supported by exhibits and affidavits as to allegedly pertinent evidence bearing upon the issue of possession. The motion is opposed by plaintiff on the ground that the suggested new evidence would be merely cumulative. Counsel for plaintiff strenuously urges that the record as made up on trial is sufficiently adequate and convincing to support the judgment from which this appeal is taken.

Our careful examination of the record has not served to convince us that the factual issue which we are called upon to determine has been preponderantly established. The testimony of the witnesses for the respective parties litigant is in irreconcilable conflict and so closely balanced that we would not be satisfied with any pronouncement of judgment if, as has been urged on behalf of defendant, there is additional available evidence which would have a pertinent and material effect upon the question of possession.

Under the circumstances, we think the substantial allegations of the motion to remand offer the possibility of clarifying the facts and minimizing the likelihood of injustice. Accordingly, under the authority of Article 906 of the Code of Practice, we deem it advisable to avail ourselves of the remedial action therein provided.

The purpose of this conclusion cannot be served by limiting or restricting the evidential area thus opened to either party or to specific factual circumstances.

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be and it is hereby set aside and annulled and this case is remanded to the Honorable the Fourth Judicial District Court in and for the Parish of Ouachita, State of Louisiana, with instructions that the case be reopened for the reception of additional evidence on behalf of either of the parties, plaintiff or defendant, with reference to the factual issue of possession.

Costs of this appeal are taxed against plaintiff-appellee and the assessment of all other costs shall await final determination hereof.