DeGrilleau v. Boehm

Citations

• 106 La. 472

Syllabus

<p>Syllabus.</p> <p>1. This court Is a court of record, and, sitting as an appellate tribunal, exercises jurisdiction only of matters which appear from the record to have been presented to, and considered by, the court of first instance.</p> <p>2. Where a defendant in rule pleads thereto in the District Court, in writing, whether the pleading be called an exception or answer, and, thereafter, and without further pleading, participates in the trial of the rule upon its merits, and there is nothing in the record to show the contrary, this court must presume that the only defense offered in the District Court was that presented by the pleading filed, and hence, that the only issues to be determined on the appeal are those which are so presented.</p> <p>3. In this case, the sheriff having taken a rule on the seizing creditor, the trustee in bankruptcy of the defendant, the city of New Orleans and the State of Louisiana, to show cause why certain funds, realized by him under execution, should not be distributed, the trustee objected and excepted to the proceeding upon two distinct grounds, and in writing, and, the objection being overruled, participated in the trial on the merits without further pleading. Held, that, on the appeal, taken by such trustee, from the judgment rendered, this court can take cognizance only of the issues raised by the pleadings filed, and that if the objections presented by such pleadings are abandoned the judgment will be affirmed.</p>