38 La. Ann. 667 | La. | 1886
The opinion of the Court was delivered by
This is a petitory action, to which the defendant and warrantor interposed in Imdne certain peremptory exceptions.
The judge of the court having recused himself, called Allen Barks-■dale, Esq., as judge ad hoc who, having duly qualified, heard the said exceptions at the November, 1885, term of the court, and rendered .judgment overruling them.
Thereafter the cause went to issue on the merits by answers filed by ■defendant and warrantor.
The case was continued at two succeeding terms and at the April term of 1886, Mr. Barksdale, being unable to attend, proffered his resignation as judge ad hoc and J. B. Holstead, Esq., was appointed and qualified in his stead, who thereupon entered his order fixing the case for trial on April 13.
On that day the case was regularly called and taken up for trial, and ■all the pleadings in the case were read, when the special judge, ex •oficio and of his own motion, entered his order setting aside the former .judgment which had been rendered on the exceptions and granted a now trial of said exceptions and, proceeding forthwith to trial thereof, he rendered his judgment sustaining the same and dismissing plaintiffs’ suit.
To these proceedings of the judge, counsel for plaintiffs excepted •and took a bill of exceptions which is brought up in the record.
The question which meets us at the threshold is as to correctness of tiie judge’s proceeding. We can discover no warrant of law or authority to sustain it.
By the effect of the former judgment overruling them, the exceptions ■as such were out of the case ; and the judge had no more right to rein.state and try them as exceptions, after the case had been opened on- the merits, than he would have had to interpose such exceptions of his own .motion, had the parties never filed them.
It is equally true that, so far as the overruling of an exception is. concerned, the judgment is not res judicata on the subject matter thereof, and does not preclude the court from reversing its ruling when the same matter is brought up anew in proper form, as by answer to the merits. Levy vs. Wise, 15 Ann. 38.
But this does not authorize the court to revive a defunct exception, after a case is on trial on the merits, to try it separately, and thus to-defeat the trial on the merits.
If the subject matters of the exceptions were involved in the issues on the merits the judge, after hearing the merits and in rendering-judgment, might have well ruled on such matters according to his discretion without being bound by the former ruling.
But he erred in depriving plaintiff of his trial on the merits and of the opportunity of bringing his whole case before this tribunal.
It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that the case be remanded to the lower court, to be there proceeded with according to law and the views herein ex- - pressed.