Derouen v. Derouen

502 So. 2d 105 | La. | 1987

In re Derouen, Betty; applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 85-1136; Parish of Calcasieu, 14th Judicial District Court, Div. “H”, No. 85-2245.

Prior report: La.App., 496 So.2d 1341.

Writ granted. Judgment of the court of appeal is reversed. The case is remanded to the district court for a new trial. The petition prayed for a “judicial partition of community property as set forth in paragraph I of the sworn detailed descriptive list of community property attached hereto and made a part hereof and labelled Exhibit P-1 for identification.” La.Code of Civil Procedure article 1703, which dictates the scope of a dafault judgment, is applicable here either directly or by analogy. Article 1703 provides as follows: “A judgment by default shall not be different in kind from or exceed in amount that demanded in the petition.” La.Code Civ.Proc.Ann. art. 1703 (West 1961). On remand the court should proceed in accordance with R.S. 9:2801.