Herbert v. Travelers Indemnity Co.

In re: Dr. Byron J. Casey, Anesthesia Associates and The Travelers Indemnity Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 193 So.2d 330.

Writ refused. Judgment not final.

McCALEB, J.,

thinks that a writ should be granted to review the order of remand, being substantially in accord with the dissenting views of McBride, J. See 193 So. 2d 339; also Broussard v. State Farm Mutual Automobile Ins. Co., La.App., 188 So. 2d 111. It is his opinion that, since the sole reason given by the Court of Appeal for the remand of the case is to enable the successful litigant before the jury to invoke and have the benefit of the so-called “no manifest error rule” in the event of another appeal and not because the appellate court finds that it is unable to fully dispose of the matter on the record before it, the court has violated the provisions of Article 2164 C.C.P. as its judgment is improper “upon the record on appeal”. The remand unnecessarily prolongs the litigation for no productive purpose and constitutes an abuse of judicial discretion.