39 La. Ann. 105 | La. | 1887
The opinion of the Court was delivered by
This is a suit instituted by plaintiff, claiming to be a judgment creditor of the defendant Joseph II. Ashby, to annul a mortgage executed by him in favor of his children — co-defendants—which is charged to be fraudulent and intended to secure an unjust claim against him in their favor to the prejudice of the plaintiff’s rights. The defendant excepted on the ground that the petition disclosed no cause of action.
Following a vicious practice that prevails to some extent throughout the State, this exception, though determinable on the face of the papers, was referred to the merits.
The answer is in part, substantially, explanatory of the exception of no cause of action, giving specifically the facts- or reasons why the plaintiff cannot maintain the suit.
Prom a judgment in favor of the plaintiff annulling the mortgage assailed, the defendants have taken this appeal.
It appears from the pleadings and record :
That the plaintiff has no moneyed judgment against the defendant Joseph II. Ashbey, on the faith of which she seeks the annullment of the mortgage. This judgment, which is referred to in the petition, is not a judgment in favor of the plaintiff, but one in favor of her children, to whom she was at one time tutrix.
It further appears that, when this suit of nullity was instituted, these children had attained their majority, and one of them had married, had children and died.
It is not alleged or proved that the plaintiff ever acquired from her children this judgment or any right thereto, and the parties owning the judgment are not parties to the suit, or in any manner represented therein, but the plaintiff sues alone and in her personal capacity.
It follows, therefore, that plaintiff has instituted and prosecuted a suit in which she has no personal interest whatever, and in which she does not represent the real parties in interest.
An action can only be brought by one having a real and actual interest which he pursues. C. P., Art. 15; Corral & Co. vs. Towboat Co., 37 Ann. 803.
Tt is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed that the suit be dismissed at plaintiff’s costs in both courts.