ON APPLICATION TO REMAND
PORTER, J.In this case, the District Court rejected plaintiff’s demands. On appeal, this Court affirmed that judgment. An application for a rehearing was granted, and the case is pending on that order. The contention of the plaintiff is that as a result of an accident — the falling of a piece of iron upon his head — his skull was fractured, and that he was totally permanently disabled to do any work of a reasonable character, and he prayed for compensation at the rate of $18.00 per week for four hundred weeks.
The contention of the defendant Company was that plaintiff had recovered from the effects of the accident, and that the illness from which he complained, and which occurred several months after the accident, had no connection with it.
The rehearing was granted in June, 1923.
In the brief in support of the application, plaintiff’s counsel says:
“We have seen this poor plaintiff, destitute and helpless, making every effort possible to secure some kind of employment which would require no kind' of exertion. His utter physical capacity is not disputed.”
*72Since the order granting a rehearing was issued, the defendant Company has filed in this Court a motion to remand the case for the purpose of taking additional testimony on the question of plaintiff’s ability to do work of a reasonable character.
The motion, which is duly verified, alleges that the facts upon which it is based have come to the knowledge of defendant since the rehearing was granted, and there is attached to the motion an affidavit by one J. Curtis Parker, which is to the following effect:
That he is employed by the Woodley Petroleum Company, as time keeper; that he has knowledge of the duties and character of employment of all of the employees of said Copany, and of the wages or salaries paid them; that he knows E. Maleby has been in the employment of said Company since the 17th day of July, 1923, as pusher of a roustabout gang in the Arkansas oil fields, during which time he has been' paid a salary of $180.00 per month, which is in excess of the wages generally paid roustabouts by other Companies, and that during said time of employment, no amount has been deducted from the monthly salary of said Maleby on account of loss of time from illness or other physical incapacity.
One of the allegations of the motion is that from information received from reliable persons, the plaintiff began work in the Arkansas oil fields soon after the trial of this case in the District Court, and has been working- there regularly ever since, at wages equal to or in excess of the wages he received from the defendant at the time he was injured.
We think that, under the showing made, the case ought to be remanded in justice to both parties — the plaintiff and the defendant.
It is therefore ordered and decreed that this case be, and it is hereby, remanded to the Honorable the First Judicial District Court, for the Parish of Caddo, Louisiana, with directions to re-open the note of eviience for the taking of such legal testimony on the question of plaintiff’s ability to perform work of a reasonable character, since the trial of the cause in said Court, as both parties shall desire to offer, after which the entire record will be returned to this Court.
ON MOTION TO SET ASIDE ORDER REMANDING THE CASE TO THE DISTRICT COURT. ,
The motion is denied. This Court will, however, on its own motion, recast its order as follows:
It is ordered that the former judgment of this Court} affirming the judgment of granting a rehearing in the case, be, and they are hereby set aside.
It is now ordered and decreed that this case be, and it is hereby remanded to the District Court of the First Judicial District, in and for the Parish of Caddo, with instructions to re-open the note of evidence for the reception of legal evidence work of reasonable character, as counsel for both parties shall see fit to offer, and that the case there be further proceeded with according to law.
The Court will hereafter' file written reasons for denying the motion to set aside its order remanding the case.
ON APPLICATION TO SET ASIDE MOTION TO REMAND.
After considering the arguments and briefs of counsel for -both parties on the motion to set aside our order remanding *73the case to the lower Court for the purpose therein stated, we are convinced that we pursued the proper course in granting said order.
The District Court, after hearing the evidence in the case, rejected plaintiff’s demand. This Court, in an opinion handed down on June 2nd, 1923, affirmed that judgment. It subsequently granted, on the application of plaintiff’s counsel, a rehearing. Defendant’s counsel then filed a motion to remand the case to the District Court for the purpose of taking additional testimony on the question of plaintiff’s abil ity to do work of a reasonable character and, attached to the motion, is an affidavit which purports to’ be signed by J. Curtis' Parker, time keeper of the Woodley Petroleum Company, to the effect that the plain tiff has been in the employ of said Company since the' 17th .of July, 1923, (the affidavit is dated Nov, 13, 1923) as a pusher of a roustabout gang in the Arkansas oil fields, during which time he has been paid a salary of $180.00 per month. (The same wages that plaintiff was earning at the time of the injury.)
This Court thereupon issued its order, remanding the case to the lower Court for the purpose above stated.
Subsequently, plaintiff’s counsel filed a motion to set aside the remanding order, upon two grounds, viz: (1) That the Court was without authority to issue said order and cited in support of that contention the case of Deniels vs. Shreveport Producing & Refining Co., 151 La. 800, 92 South 341; (2) That he had never been notified of the application to remand by defendant’s counsel or the affidavit aforesaid, and he annexed to his motion an affidavit of J. R. Porten, Secretary & Treasurer of the Woodley Petroleum Co., to the effect that the plaintiff had been employed by said Company, “for a short time”, but after reasonable trial; was found unable to do the work to which he was assigned with proper efficiency, and was therefore discharged.
1. The position taken by plaintiff’s counsel that we were without legal right to remand the case is grounded upon the decision by the Supreme Court in the case of Daniels vs. Refining Co., above referred to. In our opinion, that decision has no application to the question here presented, for these reasons: In that case, the plaintiff had recovered a judgment in the District Court awarding him compensation for certain injuries, and the defendant Company appealed. Pending the appeal, the defendant filed a motion, supported by affidavit, to have the case remanded “for the purpose of showing that plaintiff’s wage earning capacity had increased since the trial”. The Court denied the motion on the ground that about eleven months had elapsed since the judgment of the lower Court was rendered, and that defendant would, within another month, have the right, under the Compensation law, to a revision on the judgment. And it found that the record was such as to enable it to render a final judgment in the case. We do not feel, for the reasons not necessary to mention, that we could, consciously, render a final judgment in this case.
But more than this; the opinion under discussion was based upon Section 20 of the Compensation Act, and that Section provides, in substance, “that a judgment of compensation may be modified”, by agreement between the parties, with the approval of the Court, or “said judgment of Compensation” may be reviewed on the. application of either party, within a year after its rendition, and that the amount oi compensation allowed may be increased or decreased, according as the facts warrant.
*74There is no “judgment of Compensation” in this - case. On the contrary, the District Court rejected plaintiff’s demand entirely, and, hence, there is no judgment to be reviewed in accordance with .the section referred to.
We note, in passing, however, that the Supreme Court in two cases—Bourgeois vs. Construction Co., 149 La. 669, 90 South. 17 and Pye vs. Electric Co., 147 La. 537, 85 South 232, did just what we have done in this case, except that in both of those cases the plaintiffs had recovered judg ments in the District Court.
2. The second contention of plaintiff’s counsel need not be discussed, because even if there was error in our first order, for the reason that counsel was not notified, that error has been cured by the opportunity given counsel to argue the motion, both orally and by briefs, of which opportunity he has fully availed himself.
The motion to set aside our motion remanding the case is therefore denied. See decree;