d-mmtmg. After closing his evidence, and before the defendants had commenced adducing their proofs, the plaintiff moved, in the court below, to discontinue his demand, so as to reduce the amount claimed to the sum of ©290.
On the defendants’ objection, the District Judge overruled the motion. The plaintiff thereupon took a bill of exception, to which he appended his amended petition.
The general rule is, that a party may, at every stage of the proceedings previous to the rendition of judgment, discontinue the suit. In jury trials, this motion may be made until the moment when the jury is about to withdraw. After the withdrawal of the jury, the plaintiff is no more at liberty to dismiss his demand; and the verdict, whatever it be, is binding upon all the partios. C. P. 491, 532.
There was error, consequently, in the refusal to allow the plaintiff to file his amended pietition. This error has been recognized in our former opiinion; and, indeed, it is yet conceded.
But one course of two can be pursued: to give effect, in this Court, to the plaintiff's motion; 'or remand the cause to enable him to exercise his legal right in that respect.
If effect be given to the plaintiffs demand, without remanding the cause, by treating the amended pietition as filed at the time it was offered, then the pleadings show a case which does not involve an amount exceeding three hundred dollars. Hence, a dismissal of the appeal.
If the case be remanded to save the amended pietition formally filed in the court below, once this is done, the pleadings will again show on their face that the case is not apipiealable.
Under both hypiotheses, whatever the evidence, the Court could not, without ignoring the bill of exceptions, render judgment in favor of the plaintiff for more than ©290, even were there conclusive proof for a larger amount.
I conclude, that we have no jurisdiction in the premises, and that this appeal ought to be dismissed. 14 An. 114; 2 An. 136.
Dueeeu, J., concurs in the above opiinion.