| La. | Sep 15, 1840
delivered the opinion of the court.
This is a possessory action, to which defendant excepted, on the ground that plaintiffs had heretofore brought a petitory action for the same property, which they had discontinued. This exception having prevailed, the plaintiffs appealed.
Our only inquiry must be, as to the nature of the first suit. If it was a petitory one, the exception was properly sustained. Code of Practice, article 54.
On examining the first record, we cannot view it in any other light than that of a possessory action. After setting forth all the material circumstances required by the Code of Practice in possessory actions, the petition concludes with a prayer that defendant be decreed to deliver up, to plaintiffs, the possession of their slave, &c. In her answer, the defendant sets up title. We have been at a loss to discover what circumstance could have induced ihe judge below to consider the first suit as a petitory action, unless it be an allegation of ownership, to be found in the body of the petition. But this allegation was a proper one in a possessory action. It was
It is, therefore, ordered, that the judgment of the court below be annulled, avoided and reversed, and it is further ordered, that the exception to plaintiffs’ action be overruled, and the case remanded to be proceeded in according to law, the defendant and appellee paying costs in both courts.