dissenting. I am constrained to dissent in this case. When this case was before this court the judgment was annulled and reversed, and tho case was remanded on the ground that the court a qua should have received evidence on the motion for new trial. This court never passed upon tho merits of the case. After- tho case was returned to the lower court the now trial was refused, and thereupon, to save *218time, trouble, and expense, it was agreed that, without any further action on the part of the district court, the caso might be submitted to this court on the record already filed in this court. I can not imagine why this agreement is not valid. ■ Ali agreements may be made which are not prohibited. I know of no law forbidding- such an agreement. Certainly no article of the Code of Practice forbids it. Nor has this court ever decided that parties could not make an agreement like the one in question. The cases cited are not in point. In Moore et al. vs. Simms, 21 An. 649, it was decided that an affidavit of a district judge that an order of appeal had been granted was not sufficient to maintain the appeal— that not being the way to prove such fact.
In Norris vs. Warner, 22 An. 458, it was decided that “ the entry that a motion for appeal was filed, does not show that it was granted.”
In Dupré, etc., vs. Mouton, it was decided that an agreement entered on the minutes of the court, before judgment, giving to either party a devolutive or suspensive appeal from such judgment as might be rendered by the judge who had the case under advisement, was not an appeal. 23 An. 543.
In the case of the State Bank of Louisiana vs. D. N. Barrow et al., 24 An. 276, it was said: “We also find the agreement of counsel that one transcript shall be made for the two appeals taken, in this case,” and it was held that “ as neither of the appeals has been perfected, one for want of an appeal bond, the other for want of an order of appeal,” the appeal had to bo dismissed. It is true, in that case, it was said that consent could not give jurisdiction, but it was an obiter dictum.
The case under consideration is very different from the above cases. From the judgment of the lower court an order for an appeal teas regularly obtained, and the transcript of appeal was duly filed in this court, but the case was remanded on an exception, as already stated. After the appellant had failed to obtain the advantage expected by that exception, the agreement to submit the case on the record filed was entered into. If any valid objection could be urged against the submission under that agreement, it would be that the appeal was premature, as no judgment had been rendered by the court a qua, the former judgment having been annulled and reversed. But I can not appreciate the force of the objections urged against the validity of the agreement of the parties to submit to this court the determination of their disputes on a record which contained a judgment and an order of appeal, even though that judgment had been technically reversed for the purposes stated. It would be a vain thing to require the judge to render anew the same judgment, and take another order of appeal, and file a new transcript of appeal in this court, in order to enable this court to decide the case. Litigants ought not to be required to do a vain thing. But I understand *219the only objection urged by counsel for appellee is that the case was not submitted in time. No time is specified within which the case was to bo submitted, but if the delay were unreasonably long, the appellee was at least as much in fault as the appellant. Nothing prevented him from submitting the case if he had chosen to do so. Besides, the illness of the appellant’s counsel was an an excuse for his delay in submitting it, I think that justice requires that the case should be submitted under the ■aforesaid agreement.
MORGAN, J. I concur in this opinion.