Fretz v. Carlile

The judgment of the court (King, J. absent,) was pronounced by Slidell, J. The objection raised aá to the premature signing of the judgment is sufficiently answered by a reference 'to the case of Gardere v. Murray, 5 Mart. N. S. 244. The appellants Baker, Lusk 8f Co. do not pray that the cause be remanded for a new trial; hut simply that the judgment be so amended as to allow them out of the fund in court for distribution $498 62, the whole amount of their claim, instead of $166 21, which was awarded them by the decision of the court below. Can we' give them this relief, upon their own hypothesis that the judgment was rendered without any testimony being adduced? We think not. If there be no testimony before this court, it is the intervenor’s own fault. He was an actor, and should have sustained his claim by evidence. He cannot [562] ask us to render a judgment in his favor, for a claim which he has not proved. Whether, under the circumstances, the appellants could have had the cause remanded it is unnecessary to say; as the point is not made, nor is that relief asked. But while the appellants contend that 'the judgment of the court below was rendered without evidence and by consent of the other parties, the appellants not having appeared at the trial of the cause, they insist that they are entitled to their whole claim, because the written consent in agreeing that they should have judgment for a dividend of 33 per cent on their claim of $498 62, thereby, recognized that as the amount of their claim. But, in our opinion, the appellants have not a right thus to divide the consent of the other litigants, which was intended by them to facilitate the disposition of the fund in court, and which was made in a spirit of compromise. Judgment affirmed.