Lockett v. Toby

Preston, J. The controversy between the parties in this ease is for a square of ground in the city of Lafayette. Mrs. Toby obtained a verdict and judgment, for the property, in the absence of the plaintiff. He applied for a new trial, which was refused, and he has appealed. He applied for a new trial, on the following grounds : 1.That the cause was tried in his absence, without any fault or neglect on. his behalf. 2.Because the verdict was rendered upon illegal evidence, testimony, documents and papers, which should have been rejected by the court. 3.That, on the legal evidence in the cause, verdict and judgment should have714 been rendered for Mr. Lockett, the real plaintiff in the cause; and if not, that there should have been only a nonsuit for his failure to appear and prosecute his claim. The Third Rule of Practice adopted by the court is in the following words : “The calendar of issues shall be called on each Friday, at 10 o’clock A. M., of the term. A list of the ordinary civil cases fixed for trial shall be hung up in the court room, which shall be notice to the parties. Jury causes and court causes shall be called at the discretion of the court, regard being had to the number of causes pending on the respective calendars.” Formerly, it had been the custom of the court to fix jury trials for the first week in the term; but the District Judge says, in refusing the now trial, “ That this custom of the court had been discontinued more than two months preceding the fixing of this cause, and the party must have been informed of it, if present in court on the regular days for the calling of cases.” Be that as it may, the printed Rules of the eourt left it to the discretion of the court when to call and fix jury cases for trial, and when court cases. In pursuance of the rale and this discretion, the court ordered jary cases to be called on the regular day for fixing cases, for the third week in February, and this case was regularly called and fixed for trial on the 17th day of February, 1850, and due notice thereof given to all parties interested, in pursuance of the rule, by posting up a list of the causes thus fixed for trial in a conspicuous part of the court room. The defendant was himself an attorney-at-law, well acquainted with this rule, and the more so as the same rule is adopted and practice' pursued in all the courts of the adjoining city of New Orleans. By reasonable care and diligence, he and his counsel might have known the condition of the cause, and been present at the trial. We must adhere to the decision of this eourt in the case of Riley against the City of Louisville. The great and increasing legal business of New Orleans and the adjoining cities could not be transacted without a rigorous adherence-to the printed Rules of Practice, when demanded and insisted upon by parties to suits. We cannot say that the District Court exercised his discretion illegally in refusing a new trial on the first ground ; and this view of the case disposes of the second ground. For, if the plaintiff should have been present on the trial, the admissibility of the evidence offered against him must be tested by the same rules as though he had been present. Now it has become a principle perfectly settled that this court cannot examine objections to evidence which were not made on the trial, nor the question of the admissibility of testimony, unless regularly presented to us by a bill of exceptions or other legal mode equivalent thereto. We cannot determine whether or not the deposition of McKinney should have been admitted as evidence in the ease, nor, indeed, any of the other evidence on the trial, since none was objected to, and no objections are presented to this court by bills of exception, or otherwise. See Beard v. Pritchard, 9 Rob., 464; West v. His Creditors, 4 An. Rep., 447; Summerville v. Young, 3 An. Rep., 290; Prebel v. Bales, 3 An. Rep., 627; Curtis v. Woodman, 2 An. Rep., 309. The evidence, which has been spread upon the record without objection, fully supports the verdict and the judgment, and renders it unnecessary for us to investigate the question so much discussed in this case, whether trusts can be created in this State by donation, notwithstanding the Article 1507 of the Civil Code, and whether one who claims under an act can, by parol evidence, give it [715] a different effect from that which is expressed in the act, notwithstanding the Articles 2233 and 2256 of the Code. For if, notwithstanding the conclusive effect which the law seems to give to authentic acts in relation to real property, as to all who claim under them, the parties make no objection to the investigation of their effect by other evidence, it is not for the courts to supply those objections in opposition to the probable truth of the case. It is urg-ed that there should have been a judgment of nonsuit, and not a final judgment against the plaintiff. There were two suits consolidated, in which the parties were reciprocally plaintiffs and defendants. The plaintiff sued for the land, the defendant to have her possession quieted against his paper title. She was entitled, in consequence of their consolidation, to have a final judgment in the whole case. It is therefore decreed that the judgment of the District Court be affirmed, with costs. Note. — This final decision in this cane, on a re-hearing, was rendered in January, 1852, and therefore properly belonged to those records which had been disposed of before the present Reporter came into office. On the suggestion of one of the Judges of the Supreme Court it is now printed. — [Rep.