Meyer v. Schurbruck

On Motion to Dismiss The opinion of the Court was delivered by Poems, J. The grounds of the motion are as follows: 1. The insufficiency of the transcript through the fault of appellant because it contains no note of evidence, bill of exception, or statement of facts. 2. The acquiescence of appellant in the judgment appealed from. I. It is true that the transcript contains no note of evidence, bill of exception, or statement of facts, but it contains an assignment of errors, filed in time under the provisions of Article 897 of the Code of Practice. The assignment sets forth an error of law, alleged to appear on the face of the record. The judgment appealed from maintained the exception of no cause of action, filed by the defendant against plaintiff’s petition. The alleged error of the judgment can, therefore, be considered and passed upon by this Court, without reference to any evidence which may have been introduced on tlie trial of the other exceptions, which were interposed by the defendant. Of course the issue presented by the alleged error of the judgment in so far as it maintains the exception of no cause of action, is the only [374] question which can bo entertained on the present appeal. No other issue was disposed of by the judgment of the District' Court, and no other can be presented on appeal. It follows that appellant has brought up, in one of the modes pointed out by law, a ground which vests this Court with jurisdiction, and conveys knowledge of the matters argued or contested below. II. The acquiescence charged to appellant, consists in her paying the costs incurred by her suit, and in her filing another suit in the same court founded on the same causes of action as alleged by her in the suit which gave rise to this appeal. It appears that these acts were embodied by appellee, in a rule before the District Court for the purpose of obtaining there an order setting aside the present appeal, and that the defendant was lodged in this Court on appeal from the judgment of the District Court discharging her rule. Her counsel have suggested the consolidation of the two appeals, and the transcript in the latter case has been handed to us together with that in the first or main appeal. The suggestion involves a proceeding somewhat irregular, but as the mode affords an opportunity’of expediting the administration of justice, we have concluded to overlock the irregularity of the proceeding and to examine into the second transcript. That record does not contain evidence of the acts alleged to operate as an acquiescense- on the part of appellant. But we do not attach thereto the legal effect claimed by appellee. The institution of the second suit might have been amenable to the plea of Us pendens, but it can, under no circumstances, be considered as a waiver or an abandonment of the previous appeal. We see no force in the argument that the act of a party asking of the same court the same relief which had recently been refused him bj' the court, evinces any degree •of satisfaction with the judgment against him, and from which he had taken an appeal. The very reverse is quito apparent to our minds. Buntin vs. Johnson, 27 Ann. 625. The former judgment pending on appeal, could not even’have been pleaded as res adjudicaba, in bar to the second suit, for the plain reason that it was not yet final. C. 0. 3556, No. 31. The district judge was, therefore, correct in discharging appellee’s rule. It is therefore ordered, that the motion to dismiss the appeal taken in No. .9361, be overruled—and that the judgment appealed from in [375] No. 9405, be affirmed. Costs of the latter appeal to be paid by the defendant: other costs to abide the final determination of the controversy.