
    
      HERMANN vs. SMITH.
    
    Appeal from the court of the first district
    Whero one not a party to a suit appeals, to do so ⅛ §en»ed in the -l|i,remc; court, the ⅛ is ue slpet' ed he tried in eooít ®.f ori* giua)juriadift* tl0n-
   Porter, J.

delivered the opinion of the 1 court. This case has been brought up under o * the 571st article of the code of practice, by which the right of appeal is given to persons not ⅜ parties to the cause, when they allege J D J have been aggrieved by the judgment.

The fact of the appellant being aggrieved by the judgment, and his right to appeal, are put at issue by the answer.

Consequently this fact must be tried, before the merits can be investigated; and it is conceded, that we have no power to hear the witnesses, and decide on matters that were not passed on in the court below. To do so, would be an exercise of original, not appellate jurisdiction.

But the parties differ widely as to the consequences which should follow from this want of power. The appellee urges, that as he has denied the right of the appellant, the appeal ough t to be dismissed. The latter contends the cause should be remanded for proof, and judgment in the court of the first instance.

And of the latter opinion is this court. The particle of the code of practice already cited, contains no provision by which the appellee can be brought into the court below, and the fact tried. The only way in which issue can be formed is by the answer on the appeal. The powers with which this court is vested, forbidding the exercise of original jurisdiction, it cannot try the issue so formed. It can therefore do only one of two thing®, remand the cause, or dismiss the appeal. We think it is our duty -o remand. By this course we give the law effect. By the other we would make it a dead letter, for the denial of right by the appellee would in every case defeat the appellant. Such was the opinion we expressed in the case of the Corporation of New-Orleans vs. Paulding, vol. 4, n. s. 614.

Penis for the plaintiff, Morphy for the de» fendant.

It is therefore ordered, adjudged and decreed, that this case be remanded, with directions to the parish court, to try the issue joined between the appellant, and appellee, as to the right of the former to appeal.  