Higgins v. Haley

Wyly, J. In April, 1874, this case was before this court and the judgment was annulled and reversed, and the case remanded with direction to the district judge to hear tho testimony offered by plaintiff on his mo [217] tion for a new trial on tlio ground that tho jury had been improperly influenced. See the case reported in 26 An. 868. This decree divested this court of jurisdiction and placed the case before the court a qua for the purpose of hearing evidence and trying the motion for new trial. This trial was subsequently had, and the mover failed to establish tho .charge that the jury had been improperly influenced, and tho court therefore discharged tho rule for a new trial. Instead of taking an appeal from the final judgment on the merits after the rule for now trial .was discharged, tho counsel for plaintiff and defendant agreed to submit the case on the record on file in this court at tho time the judgment of April, 1874, was rendered. No time was fixed within which said submission of the case should be made. The matter was delayed for more than twelve months, and was neglected on account of the ill-health of plaintiffs counsel. Plaintiff now takes a rule on defendant to show cause why the agreement should not bo carried into effect and tho case submitted on tho old record on file in this court when the case was decided in April, 1874. When tho decision of 1874 was rendered this court was divested of jurisdiction, and tho case passed as fully under the control of tho district court as if no appeal had been taken. Now, what gives this court jurisdiction ? More than one year has passed and there has been no order of •appeal granted by tho judge, no bond has been filed, and no transcript lias boon filed. Is tho judgment of the court below to stand forever ? Assuming that the agreement of counsel could bo substituted for an order of appeal and bond, no action has been taken thereon within tho time allowed for tho exercise of the right of an appeal. But the agreement of counsel can not vest this court with jurisdiction of a case in the absence of an order of appeal and an appeal bond. See tho cases of Dupré vs. Mouton, 23 An. 543; Norris vs. Warren, 22 An. 458; Louisiana State Bank vs. Barrow, 24 An. 276; Moore vs. Simms, 21 An. 649. Tho Code of Practice points out the form to be pursued to transfer jurisdiction from tho inferior court to the Supreme Court. It is therefore ordered that the rule herein bo discharged at tho costs of the mover.