
    No. 8587.
    State of Louisiana ex rel. Orleans Railroad Company et al. vs. Henry L. Lazarus, Judge.
    The appealable or unappealable character of a controversy is announced, by the pleadings, but is fixed by the judgment. Hence a mandamus lies to compel the granting of a suspensive appeal, when at the time the judgment was rendered the case was appealable. A remittitur subsequently entered, cannot deprive the party cast, of his constitutional right of appeal.
    Application for Mandamus.
    
      Chas. Tjouque, for the Relator.
    
      A. J. Murphy and F. W. Baker, for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a. mandamus. The Orleans Railroad Company was sued for ten .thousand dollars damages. After issue joined and trial, the jury rendered a verdict for two thousand dollars. A motion for a new trial having been taken, the plaintiff in the case entered a remütíüir, reducing the claim, verdict and judgment to one thousand dollars. The judgment having been signed, the Company, tendering a bond for three thousand dollars, seasonably applied for a suspensive appeal, which was- refused. lienee^ this proceeding.

The verdict was rendered on the 15th of February; judgment was rendered upon it on the 23d following; the remittitur took place on the 4th of April, 1882.

The appealable or unappealable, character of a suit is announced by the pleadings, but is fixed by the judgment.

It is settled beyond the possibility of a doubt that, although in an appealable case the plaintiff may render the case unappealable by making a remittitur before judgment, still lie cannot do so after judgment. This is no now question. 14 An. 114; 16 An. 430; 21 An. 723 ; 2 How. 73, and authorities in 21 An.

The Relator is entitled to the relief sought.

It is, therefore, ordered, that a peremptory mandamus issue herein, directing the District Judge to grant the suspensive appeal prayed for by the Relator.

Levy, J., absent.  