A motion is made to dismiss tliis appeal on the ground that the police jury, who are the only appellants, have voluntarily executed tlio judgment oí the lower court. The counsel for the appellants answer that this court can not take cognizance of the documents annexed to the motion and which appear now for the first time and as originals. They cite the case of Nunez vs. Winston, 21 An. 666, to support their position.
In the case of Campbell vs. Orillion, 3 An. 115, a similar motion was made, and the court said: “ In support of his motion he has produced a certified copy of the fieri facias which first issued (on behalf of the appellants) with the return thereon and the certificate of the clerk that an alias fieri, facias is now in the hands of the sheriff. As these documents form no part of the record brought up the facts which they discover could, in the absence of the consent of parties, only have been considered with a view to remanding the cause for the purpose of trying the no V issue now presented. In .-order to obviate the delay consequent upon remanding the cause, counsel have consented that the. documents produced by the defendants (appellants) may be considered as regularly' before us.” f
In the case of James vs. Fellowes & Co., Hernandez, appellant, 23 An. 37, the same ground was made in the motion to dismiss, and the court said: “ Having, however, no original jurisdiction, we must remand the cause to try the issue raised by the motion.”
Those rulings sustain the enunciation in the case cited by appellees from the twenty-first Annual to the same effect, which, though it may not be considered essential to the decision, recognizes the doctrine that this court can not receive new evidence. In all the cases which we have been able to find upon this subject and in which the appeals were dismissed, the evidence produced was expressly or impliedly admitted by the opposite party'.
The case of White vs. Ramsey, 14 An. 329, may be, to some extent, an exception, but there the appellee was plaintiff in a money judgment, and the court considered the sworn allegation of payment a judicial admission of the fact in this court, and therefore the fact was sufficiently' shown in the record.
Chief Justice Merrick dissented, on the ground that this court has no original jurisdiction and the case ought to be remanded.
As there is no consent, express or implied, for us to consider the evidence, we must adhere to what we believe to be the jurisprudence as we believe it to be established.
We have jurisdiction of the cause as tried, but not of facts not passed on in the lower court, and we can receive no new evidence. See articles 894 and 895, Code of Practice. The first of these articles says: “ The *274Supreme Court shall receive no new evidence, even though it may have boon discovered since the judgment below, except in the cases hereafter expressed.” This is not one oí the cases expressed.
■ Consent can not give jurisdiction, but, having jurisdiction oí a cause, this court may, it seems, consider facts presented by consent. This lias not been done in'this instance.
It is therefore ordered that this ease be remanded to the lower court with instructions to the district judge to hear evidence and try the question of acquiescence in or execution of the judgment by appellants and send up the record thereof according to law.
Rehearing refused.