
    Henry Kean v. Wm. L. Brandon et al.
    Where evidence was received without objection by way of reconvention, it will be sustained as if a formal plea to that effect had been filed.
    from the Sixth District Court of New Orleans, Howell, J.
    
      Durant & Hornor for plaintiff and appellant. Benjamin, Bradford & Finney for defendants,
   Jones, J.

This case was originally before this court and remanded. See 12 An. p. 20. After this case was sent back to the lower court for further proceedings under the mandate of this court, auditors were appointed to render an account between the contending parties.

They found a balance of five thousand seven hundred and sixty-nine dollars and seven cents in favor of defendants, as on reconventional demand.

From a judgment rendered against the plaintiff in favor of defendants, predicated on the report of the auditors, the plaintiff has taken this appeal.

We have examined the record of the first appeal, and the record of this appeal, and find that the defendants have plead no reconventional demand, but the present record before us discloses the fact that defendants offered evidence before the auditors, and introduced proof to like effect on the trial of the cause, to support a reconventional demand without objections on behalf of plaintiff, and also moved to homologate the report of the auditors. We therefore feel authorized under our well settled jurisprudence to decide this case on the evidence adduced, without objection, in the same way had the same been received under a formal pleading of a reconventional demand. 4 An. 193, Eastran v. Harris; 5 An. 184, Ames v. The People's Telegraph; 9 An. 255, Gayrre v. Tennard.

The report of the auditors having been received in evidence without objection, and the oral evidence of the auditors on the trial of the case fully supporting their report, we feel justified in confirming the original judgment. ■

Therefore, for these reasons, it is ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.

HowEnn, J., recused.

InsiiEY, J., absent,  