
    NO. 8056.
    NEW ORLEANS & NORTH EASTERN R. R. CO VS JONATHAN K. LEWIS.
    COURT OF APPEAL STATE OF LOUISIANA PARISH OF ORLEANS
   OPIJÍIOIÍ.

By his Honor John St. Paul.

Plaintiff Brought this suit Upon a causa of action arising in the yeae 1917, as shown hy the exhibits annexed to and made part of the petition; that is to say before the Federal Government had assumed control of the nation’s railroads as a war measure.

Phis petition however was filed only in 1919 and whilst plaintiff's physical property was in the control of the Federal Authorities, where it had been since Deo. 31st 1917; and contained some irrelevant allegations about Federal Control, as we11 as certain clerical errors showing dates in 1918. By reason whereof, it would seem that court and counsel must $### all have been misled into the belief that the cause of action arose during Federal control. For the defendant promptly filed and the judge promptly sustained an exception that the cause of action belonged not to plaintiff but to the Federal Director General of Rail Roads; whilst the latter, acting by the same oounsel, promptly filed a new-suit upon the same cause of action. Thereafter plaintiff perceived the mistake and took this appeal.

I.

It is said that oounsel for plaintiff admitted below in open court that the judgment was correct fas well and hence plaintiff cannot appeal. But this court cannot tate oognizance of alleged occurrences in the oourt Below which do not appear in the record, By which alone an appellate court is guided. 0. P. 601; 894. What is not in the record we cannot consider. De non apparentlBus et non exlstentlBus eadem est ratio.

Moreover mere verbal approval of a judgment, unless followed By "voluntary execution" ( i.e. some affirmative action) is not suoh acquiescence therein as to preclude a right of appeal. C. P. 567. Dor can a mere verbal approval of a judgment after rendition amount to a ### confession of judgment, which of course should Be in writing, and generally should precede the judgment and be the Basis thereof.

Again it is clearly no part of counsel's duty to approve or disapprove of judgments for or against a client; and hence any admission By counsel that a judgment is correct is only an individual expression of opinion which does not Bind the client or preclude Jiis right of appeal. Nor can counsel directly or indirectly waive a client's right of appeal unless specially authorized to do so. See Smith vs DurBridge, 28 Da Ann, not reported; cited in Douque’s Digest p. 69. And finally the right of appeal is absoluta on complying with, the requisites of law and does not aepena on the inoorreotness of the ¿Judgment nor on the opinion entertained thereof hy the court or counsel. Security Bank vs Hibernia Bank, 13 Orleans Appeals 423; State vs Recorder, 45 An 1209; Lee vs Foley, 113 La 663.

May 30th, 1921.

Hor can the fact that the Director General thereafter filed suit on the same cause of action, even by the same counsel, amount to a voluntary execution of the judgment by plaintiff. Ihat was wholly the act of a third person and not the aot of plaintiff, and cannot prejudice plaintiff. Res inter alios acta alteri nocere non debet.

XI.

As to the main issue, there is no pretense now that the judgment appealed from is correct; and hence that judgment must be reversed and the oase remanded for trial; but we think that the error in the judgment below was due to the fault of plaintiff, and So we will tax plaintiff with the oosts of this appeal. Act 229 of 1910.

Ihe judgment appealed from is therefore reversed and it is now ordered that defendant's exceptions be overruled and the aase remanded to the court a qua for tbial in due course; plaintiff to pay the oosts of this appeal, and all# other costs to await final Judgment.

Hew Orleans la,  