Huff v. Fitzsimmons

ON APPLICATION FOR REHEARING

LeBLANC, J.

On application for rehearing, the plaintiff, in whose favor judgment was rendered, 130 So. 142, complains of our action in denying attorney’s fees in the sum of 10 per cent of the amount recovered, which had not been demanded in .the prayer of her petition.

*444It is said that the matter was not urged by the defendants either in this court or in the lower court, and the impression is sought to be given that we went out of our way to raise the question ex industria.

It is the business of an appellate court to correct any error that may appear to it in the judgment o'f the court a qua. It matters not whether the error arose from a misconception of the law or facts, or both, or through oversight of some point in the case.

In this case the judgment of the lower court awarded the plaintiff a sum for attorneys’ fees which had not been demanded in the petition. It was a judgment in excess of the amount'prayed for. It was no concern of ours whether the error was one of oversight or of misconception: we considered it our duty, on perceiving it, to correct it.

We did not think it necessary to cite authority to the effect that a plaintiff cannot recover in a judgment more than is demanded in his petition. The Code of Practice so provides, articles 156, 157. Article 553, Code Prac. further provides that “interest shall not be allowed by the judgment, unless the same have been expressly claimed. * * *” In her application before us, plaintiff attempts to draw a distinction between a demand for interest and one for attorneys’ fees, which we cannot appreciate as existing in relation to the question here presented. As further authority may be cited the cases of Merchants’ & Farmers’ Bank & Trust Co. v. Hammond Motors Co., 164 La. 57, 113 So. 763; Roussel v. Railways Realty Co., 165 La. 545, 115 So. 742; Gallagher v. Louque et al., 169 La. 362, 125 So. 272, and Sandifer v. Stephens, 8 La. App. 546.