On Rehearing.
Bermudez, C. J.Plaintiff and appellee seeks to dismiss this appeal on the ground, that the defendant has acquiesced in the judgment appealed from, by voluntarily executing it.
The facts advanced, as constituting acquiescence, are admitted by the defendant company, which simply denies “ the conclusion sought to be drawn ” from them.
The appearance of defendant, we deem to be, in the nature of an exception of no cause of action.
This action has for its object, the recognition of the plaintiff, as lawful owner of certain railroad franchises represented as about to be invaded by the defendant; an injunction was asked and obtained in limine, the perpetuation of which is prayed for in the petition.
The suit was brought on the 14th of December, 1880. Shortly after, viz: on the 20th, the plaintiff prayed for its removal to the United States Circuit Court for the District of Louisiana, and the order was made. On the 31st of the same month, the transcript was filed in that Court. On the 5th of January following, 1881, the defendant moved there, to dissolve the injunction. The motion was tried on the 7th following, and was dismissed on the ground of prematurity, the return day not having arrived. On the 11th of January, 1881, the defendant appeared in the District Court, moved for and obtained an appeal from the order of removal, returnable to this Court on the 3d Monday of January ult., when the transcript was filed here.
The motion to dismiss should prevail.
The theory upon which the defendant predicates its resistance to the dismissal of the appeal, is radically fallacious. The erroneous assumption underlying it consists in taking for granted that no judgment can be acquiesced in, unless it be one on the merits of a case, susceptible of execution; while the true and sound doctrine is, that any order, decree, judgment, or judicial determination whatever, whether interlocutory, final or definitive, appealable or hot, executory or not, can be acquiesced in, submitted to, or ratified, so as for ever to set at rest the matter adjudicated upon. Innumerable instances could be easily furnished in verification. See 6 M. 723; 10 An. 455; 27 An. 625. Acts of acquiescence or ratification of judgments, in all cases constitute in*1277superable impediments, prohibitive of all and any further discussion, touching the correctnss of the adjudication acquiesced in or ratified. Litigants are not permitted, for reasons of public order, to play fast and loose, in judicial proceedings, particularly when they are of such solemn character.
It is true that the judgment appealed from is not one on the merits of the case, but it is a judgment which can cause no irreparable injury, and from which a devolutive appeal undoubtedly lies. 2 M. 177; 6 N. S. 712; 5 L. 378; 9 An. 241; 29 An. 372; 21 An. 233; 23 An. 29; 30 An. 474; 2 Woods, 120. Otherwise, why has the defendant asked for an appeal; why was one allowed; why does the defendant resist the motion to dismiss, and does it insist upon our reviewing the order of removal ? It is a decree from which the defendant could have abstained from appealing, — one the correctness of which it could have formally acknowledged. That which it could have done expressly, it could do and has done impliedly.
The decree appealed from is.not now before us for review. We cannot, on a motion to dismiss, inquire into its correctness. All that wa are now called upon to do is to decide whether the acts of the defendant, which consist in taking up the record and moving, iri the United States Circuit Court, for the dissolution of the injunction, are acts of acquiescence in the judgment appealed from, which debar the right of having it revised on appeal. C. P. 567. By thus acting, it is clear that the defendant has virtually acknowledged the correctness of the order of removal, and admitted that the Circuit Court had jurisdiction over the case removed. If this be not so, why did the defendant ask of that court the exercise of its powers to dissolve the injunction ?
In consequence of the acts of the defendant, we have nothing to de presently with the order of removal or with the question of jurisdiction of the United States Circuit Court over the removed controversy. The order complained of may be perfectly incorrect, and the Federal court may have no jurisdiction at all over the case; but, however that may be. the defendant, — by formally admitting the correctness of the decree of removal, which it has itself executed, and the jurisdiction which it has endeavored to set in motion, — has debarred itself from a hearing on its appeal in this Court. •
In the very case of Buntin vs. Johnson, 27 An. 625, quoted by appellant, the doctrine which we advance was clearly intimated. The Court said:
" The acquiescence which prohibits an appeal, or which destroys an appeal, when taken, is the acquiescence in a decree which commands-something to be done or given. If the thing commanded to be done or given, is done or given, the judgment is acquiesced in. It is a confes*1278sion that the judgment is correct, and one cannot admit that a judgment is correct and then appeal from it.”
In the case before us, the order of the District Court directed the removal of the suit to the U. S.'Circuit Court. It was a decree susceptible of execution. By taking up the record of the suit ordered to be removed to the U. S. Circuit Court, and invoking the powers of that court, the defendant has executed the judgment and has acquiesced in it. It has also admitted the jurisdiction of that court and has no right to be heard here.
The question of jurisdiction does not appear to have been, at all, raised in the Circuit Court. That jurisdiction is statutory. It can be conferred neither by acquiescence nor formal consent. If that court have no jurisdiction, the defendant may still ask it so to declare; but, under the present aspect of things, we have no authority to say whether the case is one that could be removed, whether the Circuit Court has jurisdiction, whether the District Court properly removed the suit. We must pass upon the motion to dismiss.
We, therefore, decide that the defendant has acquiesced in the decree of removal, which is the judgment appealed from, and that, after doing so, it could not appeal from it. 4 R. 85; 18 An. 62; 28 An. 274, 744; 18 An. 264; 4 An. 150; 14 La. 523; 14 An. 328; 23 An. 38; 29 An. 576.
For the purpose of demonstrating consistency in the two rulings previously made in this case on the application before us, we deem it proper to state, that, when the motion to dismiss was first submitted, it raised an issue of fact, which, under the jurisprudence, we referred to the District Court, and that it is only after the decree of reference was made, that it was claimed that we had misconstrued the attitude of the appellant, who, far from disputing, had admitted the facts. Unwilling that any misconception on our part should effect the rights of either party, we recalled our first ruling and reinstated the previous order of things which we have just considered.
While on this subject, we think proper to say, that the jurisprudence of this Court, in matters of this description, is: that, on a motion to dismiss on the ground of acquiescence by the appellant, the issue of fact, if in the least disputed or doubtful, must be referred to the lower court for inquiry and adjudication, subject to review by this Court. The reference is necessary as this Court has no original jurisdiction in such cases. 28 An. 272; 23 An. 37; 29 An. 576; 20 An. 574; 21 An. 666; 22 An. 31; 32 An. 665.
Nevertheless, where the facts averred in the motion are not controverted, but are admitted, and the Court is not called upon to realize them by an examination of documents, it would be a vain thing to refer to the lower court a matter involving a pure question of law affecting the *1279appellate jurisdiction of this Court, which this Court can and should determine, whenever it is legally possible to do so.
While so holding, we keep in view and reiterate the ruling in 32 An. 665, in which we were pressed upon to deal with a mass of original documents, not found in the transcript, but filed in this Court, and submitted to enable us to ascertain whether a corporation was “ going ” or defunct. It was a fact upon which there was no positive admission in the ably guarded statement of facts signed by counsel.
In conclusion, we distinctly announce, that, as a rule, we will not consider issues of fact raised by motions to dismiss, and that we will pass upon th'e merits of such motions only where the facts are clearly averred by the mover and admitted by the appellant, or appear clearly in the transmitted record.
The motion to dismiss is sustained, and the appeal is dismissed at appellant’s costs.