Kemper's Heirs v. Hulick, 16 La. 44

Kemper's Heirs v. Hulick

16 La. 44 | La. | 1840

Morphy, J.,

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 *46necessary to state in what capacity plaintiffs had been in possession of the slave, when disturbed. Code of Practice, article 47. The prayer of the petitioner, which determines the character of the action, shows this one to have been exclusively possessory; and the defendant, by setting up title, could not change it into a petitory one. Had the suit proceeded to trial, all evidence of title would have been excluded; because, in mere actions, recuperando possessionis, the fact of possession alone, is at issue.

Where the prayer of the petition shows it to be exclusively a possessory action, the defendant by setting up title, cannot turn it into a petitory one.

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.