Ardry v. Ardry

| La. | Oct 15, 1840

Martin, J.,

delivered the opinion of the court.

This is a suit for a separation of property. Certain creditors of the husband intervened, who opposed the original parties proceeding to trial, until the citations of the intervewore had been served, and the legal delay allowed to answer in had expired. The court directed the trial to go on, being of opinion that under the provisions of the Louisiana Code, and the Code of Practice, the intervenors could not retard 7 the progress of the cause. Louisiana Code, 2408 ; Code of Practice, 391. The counsel of the intervenors took their bill of exception. The cause proceeded, judgment was given, and the intervenors appealed.

The appellants show that they alleged fraud and collusion ; that the original parties hurried on the case with unusual rapidity ; the husband giving every aid in his power to the plaintiff.

The petition was filed on the 7th May, 1840, the very day the wife was authorized to bring suit, and on thesame.day the husband acknowledged service of the petition and waived citation. On the next day he confessed judgment; acknowledging that all the allegations in the petition were true. On the 11th and 13th of the same month, the creditors of the husband intervened, and citations were issued returnable in 13 days, being the legal delay. The plaintiff amended her petition and propounded interrogatories to some of the intervenors, on the nature and extent of their claims against her husband. On the 22d May, nine days after filing of the last intervention, the plaintiff proceeded to trial against her husband, which the intervenors and appellants attempted to prevent by application to the court to continue the cause; the rejection of which, is the grounds of the present appeal.

The Code of Practice, article 391, provides that, “the intervention may be filed either before or after issue joined ; provided, the intervention do not retard the principal suit.” The appellants’ counsel show that the article 393, requires the “ petition of intervention to be served on the party against whom it is directed, in order that he may answer to the same, in the same delay given in ordinary suits.” The Louisiana Code, 2408, authorises “the creditors of the husband to become parlies to the suit of the wife for a separation of 'property and be heard against it.”

The letter of the regarded ^wUh the honest intenits” spu-ue\vhen sunfcoVciusion" and the judge is from the letter atnla reasonable conclusion. The article 39t of the Code of Practice, provides that <‘one either befoVíor after issue join-intervention do principa*' suit"; allowed "to^iie the party against rected, the same or^*respóndate interrogatories, given, as mordínary suits. So where the piaintiffhastreated the intervening parties as courtT'he must usual delays*to bring intimannecessary* paríies-

The appellees’ counsel has urged that the Code of Practice expressly requires, that the creditors be not allowed to retard the progress of the suit. That this provision of the Code is clear and unambiguous, and that, therefore, the letter of the jaw ought not to be disregarded under thepretext of pursuing its spirit.” Louisiana Code, 13. The negative of this article is pregnant with an affirmative, to wit, that even when a law is oleal' and unambiguous, thelettermay be disregarded with the honest intention of seeking its spirit. When, therefore, the letter of the law leads to an absurd conclusion, the judge is bound to recede from it, until he arrives at a reasonable conelusion. The construction which the inferior judge has given to the article 391 of the Code of Practice, is Lord Coke’s male-dicta interpretatio quest corrodit viscera texti. The law has expressly provided that the creditors of the husband may intervene ; that their petition of intervention must be served on (_he wife, and that she be cited within the legal delay, ’ ° J ’ which cannot be less than ten days, in order that she may answer. It has, by the strongest implication, provided (hat crechi0rs may join issue on the. answer, and proceed to trial thereon. The decision of the judge a quo, if it be a correct one, blots out that pail of the Louisiana Code, which allows lbe 'nlerveniion of the creditors, because it retards the proCeedings of the wife against her husband; and in no case can the petition of intervention be filed, a copy of it served on the wife, with a citation to answer within the legal delay, her answer put. in, issue joined thereon, and trial take place, . , , ,. . without occasioning some delay or retarding the progress of the original suit.

In the present case, the wife appears to have waived the faculty of opposing the intervention on the ground that it ve(nrdecl the proceedings against her husband. She has treat 1 o o ted the intervening parlies as properly in court, by propound-big interrogatories to some of them, thus admitting that ''ley aie le§nlly en,'lled to the lime within which a party is bound to answer interrogatories. The suit was brought in the parish of Rapides, and the party interrogated resides in New-Orleans ; it was, therefore, impossible, on the 22d May, when the motion to delay the trial of the cause was made, that the interrogatories could have been answered ; only nine days having elapsed since the filing of the petition of intervention, and but fifteen days from the institution of the original suit.

It is, therefore, ordered, adjudged and dreceed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded with directions not to proceed in the trial of the original cause, until the intervenors and appellants shall have the opportunity, and the legal delay necessary to bring the parties in the original suit properly before the court; the plaintiff and appellee paying the costs of the appeal.