Nichols v. Alsop

Supreme Court of Louisiana

Nichols v. Alsop

10 La. 407

Supreme Court of Louisiana·Decided October 15, 1836·Published·Cited by 1 cases

Opinion

Martin, J.,

delivered-the opinion of the court.

The plaintiff is appellant from a judgment rendered against her, in a redhibitory action, on the sale of a slave, afflicted [409]*409with epilepsy. The statement of facts made by the counsel of the parties, shows the existence of the disease at the time of the sale. That the plaintiff was at great cost and expense in attempting to cure the slave, and in other respects suffered great damages by his protracted illness. We do not recollect a stronger case on the merits presented for our consideration.

Where the J¿seC<is strongly ™ .ia™f of,the owing to a de-fngs^here'is^a 7?rdict, a£ainst him, the court might, in the fiisoiStion^grant ^ ^ correct the er-ney, by amend-in§ tlle Petltl0n- Court3ivíTre-trial'when ^is can he done with propriety, and is required in order that the ends of justice be attained,

The defendant had a verdict in consequence of the judge instructing the jury, that the plaintiff could not recover, because she had not prayed for a rescission of the sale in her petition. It also appears from the statement of facts, that the defendant reserved his objections to the competency of the testimony, because no tender of the slave had been made. J 7 A new trial was prayed for and refused.

The justice of the case is so strongly in favor of the appellant, that it appears to us, the district judge might have, ex-officio, granted a new trial, in order to afford the plaintiff an opportunity of amending her petition; and to prevent her from being the victim of an oversight of her attorney. We do not remember a case in which, with greater propriety this court may exercise the powers conferred on it, to remand, when this is required, in order that . . . . , justice be attained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; the verdict set aside, and the case remanded for new proceedings, according to law; the defendant and appellee paying the costs of the appeal..

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Martin, J.,

delivered-the opinion of the court.

The plaintiff is appellant from a judgment rendered against her, in a redhibitory action, on the sale of a slave, afflicted [409]*409with epilepsy. The statement of facts made by the counsel of the parties, shows the existence of the disease at the time of the sale. That the plaintiff was at great cost and expense in attempting to cure the slave, and in other respects suffered great damages by his protracted illness. We do not recollect a stronger case on the merits presented for our consideration.

Where the J¿seC<is strongly ™ .ia™f of,the owing to a de-fngs^here'is^a 7?rdict, a£ainst him, the court might, in the fiisoiStion^grant ^ ^ correct the er-ney, by amend-in§ tlle Petltl0n- Court3ivíTre-trial'when ^is can he done with propriety, and is required in order that the ends of justice be attained,

The defendant had a verdict in consequence of the judge instructing the jury, that the plaintiff could not recover, because she had not prayed for a rescission of the sale in her petition. It also appears from the statement of facts, that the defendant reserved his objections to the competency of the testimony, because no tender of the slave had been made. J 7 A new trial was prayed for and refused.

The justice of the case is so strongly in favor of the appellant, that it appears to us, the district judge might have, ex-officio, granted a new trial, in order to afford the plaintiff an opportunity of amending her petition; and to prevent her from being the victim of an oversight of her attorney. We do not remember a case in which, with greater propriety this court may exercise the powers conferred on it, to remand, when this is required, in order that . . . . , justice be attained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; the verdict set aside, and the case remanded for new proceedings, according to law; the defendant and appellee paying the costs of the appeal..

Nichols v. Alsop, 10 La. 407 (La. 1836).

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