44 La. Ann. 745 | La. | 1892
Lead Opinion
The opinion of the court was delivered by
This is a suit for a partition of the property inherited by plaintiff and defendant from a common ancestor, and held in indivisión by them.
The defendant excepted to the petition on the ground that it did not disclose the place of residence of the plaintiff, the place where the property is situated, and the value of the property to be partitioned.
With leave of the court, before the exception was tried, an’amended petition was filed,.which cured these defects.
The amended petition did not alter the substance or character of the demand; and only cured the defects or errors in general allegations and was therefore permissible.
The amended petition gave vitality to the original one as though it was perfect when filed.
The amended petition was excepted to on the ground that gave rise to the first exception, the idea being that for want of proper jurisdictional allegations in the first petition the court could do no act, except to dismiss the suit. As above stated the amended petition cured the defects in the original.
The second, third, fourth and fifth grounds in the exception, that the court, because of the alleged want of jurisdiction could not issue a writ of sequestration prayed for by the defendant in the amended petition, are therefore without merit.
. A supplemental petition was filed by the administrator of the plaintiff, who had died pending the suit, alleging the nullity of certain tax sales of properties which were adjudicated to the defendant.
It will not be necessary to notice the exception filed' by the defendant, as he states in his testimony that he let the. property go to tax sale and purchased it, thinking that in this way he could reduce the amount owing for taxes.
He was the agent for plaintiff and held the property, and he says his purchase was for their joint benefit.
The judgment appealed from is in conformity to the evidence, and based upon the facts mainly furnished by the defendant.
Judgment affirmed.
Rehearing
On Application for a Rehearing.
The application for a rehearing in this case presents only one point which it is necessary to consider.
The District Judge fixed the terms of sale of the immovable property without the advice of a family meeting. There were minors interested, and this was essential, as they were plaintiffs in the suit. Civil Code, 1341; 12 An. 153; 15 An. 250.
It is therefore ordered that our former decree herein be amended so as to strike from the judgment appealed from that part of the same which fixes the terms of the sale of the immovable property. In other respects it will remain undisturbed.
It is further ordered that the case be remanded to be proceeded with according to law and the views herein expressed.
