No. 39352. Precedential Denied Processed

Savin v. Savin

Louisiana Supreme Court · Filed November 7, 1949 · 43 So. 2d 221

Cited by

LaSalle Pump & Supply Co., Inc. v. LOUISIANA MIDLAND R. 433 So. 2d 745 La. Ct. App. 3d Cir. 1983
Guilott v. Guilott 326 So. 2d 551 La. Ct. App. 3d Cir. 1976
KOHLMEYER & COMPANY v. Sobert 286 So. 2d 342 La. 1973
Mid-City Investment Co. v. Batiste 248 So. 2d 88 La. Ct. App. 1st Cir. 1971
Herbert v. Travelers Indemnity Co. 232 So. 2d 463 La. 1970
Butler v. American Insurance Co. 128 So. 2d 907 La. Ct. App. 1st Cir. 1961
Johnson v. Harper 93 So. 2d 671 La. 1957
Savin v. Savin 51 So. 2d 41 La. 1951

Authorities cited

Identified automatically; this list may not be exhaustive.

9 So. 21 not in our corpus
L. A. Frey & Sons, Inc. v. Town of Slidell 173 La. 397
Mayer v. Barrow 182 La. 983
Alexander v. Jackson 195 La. 446
9 So. 22 not in our corpus

Opinion text

HAWTHORNE, Justice. Plaintiff-appellant, Dennis Savin, prior to the fixing or hearing of this case on its merits in this court, filed a motion to remand on the ground of newly discovered evidence which he alleges is material to the issues of ■the suit. Under the law and the well established jurisprudence of this state, the motion at this time is premature. Code of Practice, Article 906; Louisiana Ice Manufacturing Co. v. City of New Orleans et al., 1891, 43 La.Ann. 217 , 9 So. 21 ; L. A. Frey & Sons, Inc., v. Town of Slidell et ah, 1927, 173 La. 397 , 137 So. 193 ; Mayer v. Barrow et al., 1935, 182 La. 983 , 162 So. 748 ; Alexander v. Jackson, 1940, 195 La. 446 , 197 So. 137 . Article 906 of the Code of Practice provides that we may remand a cause to the lower court if we are of the opinion that it is 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. Prior to the submission of this case on its merits, we cannot determine whether it is possible to pronounce definitively on the cause in the state in which it is. In the early case of Louisiana Ice Manufacturing Co. v. City of New Orleans et al., supra [ 43 La.Ann. 217 , 9 So. 22 ], this court in considering a. motion to remand under the *73 authority of Article 906 of the Code of Practice said: “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 cannot determine this question without first examining into the merits of the cause ■%. iK This principle of law has been recognized in each of the other' cases cited above. For the reasons assigned, it is ordered that the application to remand be, at the present time, denied, and that the subject matter be referred to the merits of the cause, to be considered and determined when the case is heard and submitted on the merits.