Louisiana Ice Manufacturing Co. v. City of New Orleans

43 La. Ann. 217

• Court: Supreme Court of Louisiana
• Decided: February 15, 1891
• Docket: NO. 10,720
• Status: Published

Opinions

On Motion to Remand.

The opinion of the court was delivered by

Fenner, J.

The defendant appellants, in advance- of fixing or hearing on the merits, present this motion to remand the cause to the court a qua for the purpose of receiving and considering certain additional evidence which has been discovered since the date of the decision below, and which is alleged to have a material bearing om the issues.

We have maturely considered the points and authorities adduced in support of the motion, but can not avoid the conclusion that the, motion at this time is premature.

Our authority for such action is found in Article 906 of the Code-of Practice, which provides: “But if the court shall think it, not-possible to pronounce definitively on the cause, in the state in which' it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refused to receive it or otherwise, it may, according to circumstances, remand the cause to-the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.”

We consider it a condition precedent to the exercise of such authority that we should first determine that it is “ not possible to pronounce definitively on the cause, in the state in which it is,” meaning of course, by “ definitively,” a judgment according to conscience and the requirements of justice. It is plain that we can not determine this question without first examining into the merits of the cause, a necessity illustrated by the fact that a considerable portion of the argument on this motion was quite inaptly devoted to the merits.

It is not pretended that the evidence now produced raises any new issue or eliminates any existing issue in the cause. It is admitted to be merely additional and cumulative to evidence already submitted.

It might well be that we may conclude, on examining the merits» that the evidence already submitted was sufficient, or that the evidence now suggested, even if admitted, could not affect our conclusion, or that, for some other reason, we could decide the cause to our satisfaction, “in the state in which it is.” In such case, of course the remanding would be unnecessary and improper. The. most pertinent precedents cited by movers are the following: Culliver vs. Garric, 13 La. 137; Millaudon vs. Mun., 71 An. 215; Schneider vs. Ins. Co., 30 An. 1198.

In the first two cases the remanding order was made under submission on the merits and after examination thereof. While this, does not so clearly appear in the last case, it is inferable from the facts that the court reviews the merits and reverses the judgment-appealed from before remanding.

It would be necessary for us to pursue the same course, if we should grant the order prayed for, and it would be most irregular for us to reverse a judgment appealed from, on a motion like this, before the case has been set for trial, and when the merits of the judgment have never been submitted for our decision.

It is therefore ordered that the motion be, at the present time, denied, and that the subject matter thereof be referred to the merits of the cause, to be considered and determined when the latter shall foe tried and submitted.