Gayden v. Louisville, Nashville, New Orleans & Texas Railroad

On Motion to Dismiss. The opinion of the Court was delivered by Bermudez, C. J. The plaintiff claims that this Court has no juris • diction over this controversy, the matter in dispute not exceeding $2,000.' The suit is for $4,000 for the value of certain lands and for damages done to others. After issue joined and evidence adduced, the case was submitted to a jury, who returned a verdict for $500 for the plaintiff. An offer was then made by plaintiff to enter a remittitur for all demands exceeding $2,000. To this the defendants objected as concerned their right of appeal. The court sustained the objection, allowing the motion however, but without prejudice to the right of appeal. There was judgment for five hundred dollars for plaintiff, from which defendants appeal. The plaintiff also appealed, but did not perfect his appeal by giving bond. There are several reasons for which the motion to dismiss ought not to prevail. The motion for a remittitm- was offered too late. It is true that a party plaintiff has the right to discontinue his suit, but that privilege cannot be exercised under all and any circumstances. The law discriminates. Where the suit is before the judge alone, the discontinuance can be allowed only when asked before, never after judgment. C. P. 491. Where the suit is before a jury, it must be asked before the case is submitted to the jury, until the moment when the jury is about to retire. C. P. 532. When there is a ^conventional demand, the plaintiff is not permitted to discontinue, so as to affect that demand. This doctrine has been announced in Applegate vs. Morgan, 5 N. S. 642, and has been applied in several instances. See Chedoteau vs Dominguez, 7 M. 490; Warfield vs. Ludewig, 9 R. 240. In the case of LeBlanc, 16 Ann. 431, the then Court overruled the motion to dismiss. It appears there, that, before the verdict was taken in the lower [271] court, the plaintiff moved to amend his petition by remitting $710 of his demand for $1,000; but on objection of the defendant, the amendment was not allowed, plaintiff excepting, however. The jury returned a verdict for $800, and thereupon plaintiff entered a remittitur for all except $299, for which judgment was rendered against the defendant, who afterwards appealed. The Court held that the appeal was from a Subsisting demand of $1,000, and it took jurisdiction over the controversy. It first remanded the ease with instructions; but, on a rehearing, gave judgment for defendants. In the instant case, although it appears that the lower court allowed the remittitur to be entered, the fact is, that the remittitur was permitted, expressly, without prejudice to the defendant’s right of appeal. A remittitur is in the nature of a discontinuance and is governed by the same rules. The record shows, besides, that after the defendant company had appealed, the plaintiff himself appealed. It is true that he did not perfect Ms appeal; but the fact remains that He considered the case as appealable, otherwise lie would not have appealed. We therefore conclude that the remittitur entered in this case could not and did not prejudice the right of defendant to appeal. The motion to dismiss is overruled. On Exceptions. The plaintiff sued for $6,000 damages, claimed on five different grounds: 1st. Value of right of way; 2d. Value of twenty acres of land rendered useless; 3d. Damages to plantation rendered less valuable; 4th. Damages by failure to complete road within eighteen months; 5th. Losses incurred and profits missed in certain operations. The defendant excepted to the jurisdiction of the Court as to claims 4 and 5, which are for the passive breach of a contract and which can be enforced only at the domicile of the corporation in New Orleans. The defendant likewise excepted to claims 1, 2 and 8, but on account of vagueness. The Court sustained the exception to the jurisdiction, overruled the others; requiring plaintiff, however, to amend the allegation touching the second claim, which was done. Defendant excepted again on the gronnd of no cause of action, and [272] asked the dismissal of the suit; but the Court overruled these objections. The only claims now in dispute are those set forth as 1,2 and 3. We are therefore dispensed from passing on the ruling as to the question of jurisdiction; the more so as no amendment of the judgment is asked by the appellee.