Avendano v. Gay

ERROR to the Circuit Court of Louisiana.

Avendano brought suit in the court below against Gay; and, in the course of the trial, offered certain evidence, which was objected to by the defendant, but which was admitted, notwithstanding, by the court. The defendant excepted, and a bill of exceptions was sealed. A verdict was given against the plaintiffs, who brought the case here on error. The writ of error was allowed on the 9th of July, 1867. The citation was issued on the 10th, and served on the 11th. On the 16th of July, a 'statement of facts,' by the judge who heard the case, was filed, and the cause in this state was here.

Mr. Durant, for the plaintiff in error, referring to the action of the court below in admitting the evidence, contended, that upon the case, as found by the court below, the judgment ought to be reversed.

Mr. Janin, contra, observing that the admission of the evidence was on the plaintiff's own offer, relied on Generes v. Bonnemer, as disposing of the case; quoting the following passage: 'To permit the judge to make a statement of facts, on which the case shall be heard here, after the case is removed to this court by the service of the writ of error, or even after it is issued, would place the rights of parties, who have judgments of record, entirely in the power of the judge, without hearing and without remedy. The statement of facts, filed without consent of the parties, must be treated as a nullity; and, as there is nothing of which error of the court below can be predicated, the judgment must be affirmed.'

Mr. Justice MILLER delivered the opinion of the court.