Borzone v. Burke

His Honor, Judge Frank McGloin delivered the opinion and decree of the court in the words and figures following, to wit; Plaintiff sues for damages for an alleged illegal seizure of a horse, and baker’s wagon. The amount claimed being less than $500.00 we have no authority to pass upon the facts of the case. There is no statement of such facts, nor assignment of errors, but defendant has reserved two bills of exception to rulings of the court, in the admission of evidence. The first of these recites that, on the trial of the cause, plaintiff offered proof as to the value of her attorney’s fees, which was objected to on the ground that, “as to the attorney’s fees there was no cause of action, that if there was any cause of [255] action, it was merely in passe, and not in esse, and that such a cause of action could only spring into actual existence by the termination of this suit.” The other declares that, upon cross-examination, relative to her title, plaintiff has testified as follows: “About six years ago, I raised a mortgage on my property, for $500.00, gave the $500.00 to my husband and he gave that property as security for the money;” and, on re-direct, her counsel offered an act of dation en paiment, which was objected to; First, because the petition did not allege separation of property by judgment, and, not having been alleged, it could not be proven, and as there was no judgment coram judice, and could be none, no dation en paiment in total or partial satisfaction thereof could be proven; Second, that the act disclosed a title different from that already disclosed by the testimony as recited. With reference to the first bill, it is vague and uncertain, not defining the services of counsel to which the proof was directed, whether those rendered in this present suit, or in previous notices and proceedings, to release the property. Neither, are the reasons of the judge, in making the rulings given, and all that we can learn from the bill, or even from the petition, they might have related to consultation, notices, and other proceedings, which usually precede a suit in cases such as that before the court, in which event, they would not be open to the particular objection urged. The bill does not bring up to us, the testimony itself, or any satisfactory description of its character, nor are we shown, in any of the methods known to the law, whether the court a quo allowed anything, or if so, how much, for attorney’s fees. The rule, relative to cases coming up, upon assignment of error, is that the appellate court will not reverse a judgment where it is possible, that the evidence actually offered, but not submitted to the higher court, may have rectified the error, or in any way justified the findings, Caldwell vs. Townsend, 6 Mart. (N.S.) 638; Krautler vs. Bank of U.S., 12 Rob. 456; Dutler vs. Destalier, 12 Mart. 304; Daunoy vs. Clyma, 11 Mart. 557; Hill vs. Tuzzini, 1 Mart. (N.S.) 599; Freeland vs. Lausear, 2 N.S. 265; Tiedras [256] vs. Milne, 2 Mart. (N.S.) 537; Mitchell vs. White, 2 Mart (N.S.) 409; Flower vs. Hagan, 2 La. 225; Love vs. Banks, 3 La. 480; Miller vs. Whittier, 6 La. 71; Cox vs. Bethamy, 10 La. 152; Harris vs. Brown, 11 La. 90; Nott vs. Brander, 14 La. 368; Thayer vs. Reider, 14 La. 383; Harris vs. Alexander, 1 Rob. 30; Madde vs. Duncan, 8 La. Ann. 125; Succession of Bailey, 25 La. Ann. 580; Albert vs. Davis, 12 Mart. 305; Logan vs. Wunder, 10 La. Ann. 253. So, when all the evidence is not brought up, the appellate court, will presume that the judgment or proceedings were properly rendered or conducted. Flower vs. Hagan, 2 La. 225; Miller vs. Whittier, 6 La. 70; Minor vs. Labelle, 9 La. 325; Allen vs. Peytadin, 10 La. 40; Cox vs. Bettany, 10 La. 154; Fowler vs. Smith, 1 Rob. 448. The principle which underlies these numerous authorities is as applicable when questions of law, are preserved by bills of exceptions, as when they are presented by assignment of errors; and they have been so applied. Trenchard vs. Elderkin, 3 La. 298; Thomas vs. Kean, 10 Rob. 80. As to the second bill, the petition, while it does not recite that plaintiff is separate in property by virtue of a judicial decree, does declare explicitly that the property in question, was her separate paraphernal property and that it did not belong to defendant, against whom the writ of Burke and Thompson was directed. Defendant in this suit did not call upon her, to be more specific, or require her to furnish the details of her acquisition. Under the circumstances, she was entitled to prove her title, whatever it was, provided it established the allegation that it was her separate paraphernal property. Nor, do we think, that, in one portion of her testimony, she misdescribed with any apparent wrongful purpose, the character of her acquisition, which is by authentic act, that she is forever debarred from rectifying the error. The adoption of such a rule, would impose penalties upon ignorance, or inadvertence, which is sanctioned by no law, and justified by no principle of equity. On the contrary, its effect would be, without motive or advantage, to shut out the truth from courts of justice. We are asked to take and consider [257] the facts, as stated in the opinion of the judge a quo, filed by him, upon rendering his judgment, refusing a new trial, and review his application of the law to such facts. "We believe, that this court, has the power, under the constitution, and the Code of Practice, articles 602, 603 as well as our own rules in cases like this, to review the general deductions of law, drawn by the judge a quo from the facts of the case. In order to enable us, however, to do this, all such facts must be brought up, in the manner provided by law. This method would be, by securing a statement of facts, as provided for in the Code of Practice, article 602 and 603. As, by these provisions, the judge is to prepare the statement, only if the successful party has been called upon, and refuses to draw up the same, jointly with the party contemplating an appeal and declarations, found in his reasons for judgment, never intended by him as a statement of facts, such as is contemplated by the láw, not prepared upon demand, or after refusal of one of the parties to join in the preparation of such a paper, cannot be held to be a compliance with said article. Judgment • affirmed.