70 So. 501 | La. | 1915
This is a suit to have a sale of real estate by the plaintiff to the defendant decreed null, on the ground that the price stated in the deed was not paid and that no other consideration was paid or given, and, in the alternative, to annul the sale for lesion beyond moiety, on the allegation that the price, if any was paid, was less than half the value of the property. The plaintiff alleges that the transfer was a mere simulation, which the defendant and her husband induced him to sign by the false and fraudulent representations that he, plaintiff, was wasting, mismanaging, losing, and jeopardizing his property and that it was to his interest that he should transfer the title to the defendant (his aunt), to be reconveyed to him when the rents would have paid the debts secured by certain mortgages and a pavement lien. The plaintiff alleges that tbie defendant has arbitrarily refused to carry out a verbal promise to reconvey the property to him.
The suit was met by a plea of res judicata, founded upon a judgment rendered by the same court in which the present suit was filed, dismissing a former suit between the same parties, on the samé cause of action and for the same primary and alternative relief that is demanded in this suit. The plea of res judicata was overruled. The defendant reserved a bill of exceptions to the ruling, and then filed a demurrer or an exception of no cause or right of action, which was sustained.
The plaintiff has appealed and in answer to the appeal, the defendant prays that the plea of res judicata be sustained, and, in thealternative,. that the judgment sustaining the. exception of no cause or . right of action be affirmed.
The exception of no cause or right of action was filed in the first suit on the 10th of Feb-
ruary, 1915; and, under date the 24th of that month appears the minute entry:
“On motion of counsel for plaintiff, this suit is dismissed at plaintiff’s cost.”
The appellee takes the position that the judgment dismissing the first suit had the effect of maintaining her exception of no cause or right of action, and is a bar to this suit on the same cause of action. The appellant, on the other hand, contends that a judgment sustaining an exception of no cause of action cannot be the basis of a plea of res judicata.
A judgment sustaining an exception of no cause of action, because of the plaintiff’s omission of a necessary allegation is not a bar to another suit on sufficient allegations. See Hart v. Bowie, 34 La. Ann. 326; Succession of Herber, 119 La. 1064, 44 South. 888; New York Mercantile Co. v. W. M. Cady Lumber Co., 133 La. 729, 63 South. 304; Carolina Portland Cement Co. v. Southern Wood Distillates & Fiber Co., 137 La. 469, 68 South. 831. But a judgment sustaining an exception of no right of action, aimed at the merits of the plaintiff’s demand, and assuming the case to be stated completely in the petition, is a basis for the plea of res judicata, the same as if the judgment had been rendered on evidence in the case. See Northern Pacific Ry. Co. v. Slaght, 205 U. S. 128-133, 27 Sup. Ct. 442, 51 L. Ed. 738, and authorities there cited; Oglesby v. Turner, 124 La. 1084, 50 South. 859, and 127 La. 1094, 1095, 54 South. 400. Res judicata, in the cases last cited, was said to result from the-doctrine of the following cases, that it matters not in what form of proceeding the question is presented, whether by answer or exception to the petition, when once decided, it is res judicata between the parties to that proceeding, and is a complete bar to-another demand for the same thing on the same cause of action, viz.: Plicque & LeBlanc v. Perret (Peain, Intervener), 19 La. 318; Heroman v. Institute, 34 La. Ann. 805;. Broussard v. Broussard, 43 La. Ann. 921, 9 South. 910; Tutorship of the Scarborough Minors, 44 La. Ann. 288, 10 South. 858; McNeely v. Hyde, 46 La. Ann. 1084, 15 South. 167.
As the exception of no cause or right of action was aimed at the merits of the first suit, and as the petition in the case before us contains substantially the same allegations that were made in the former suit, we would hold • that the plea of res judicata should have prevailed in this case if the judgment in the first suit had disposed of the question of the plaintiff’s cause or right of action. But the minutes of the trial court do not show that the ease was submitted for decision- on the exception of no cause or right of action. The judgment dismissing the first suit was rendered on motion of plaintiff’s counsel, and its force and effect must be determined without regard to the demurrer or exception that had been filed.
Article 491 of the Code of Practice provides:
“The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.”
And article 492 provides:
“After discontinuing the suit, the plaintiff may bring the action anew; provided he has paid the costs of the first suit.”
The courts of other jurisdictions agree that there is no difference in the effect of a •discontinuance and a dismissal of a suit on the plaintiff’s motion before issue is joined or the case submitted for decision on a demurrer. In Thurman v. James, 48 Mo. 235, and in English v. Dickey, 128 Ind. 174, 27 N. E. 495, 13 L. R. A. 40, it was held that “dis•continuance” and “dismissal” are synonymous terms. In Dowling v. Polack, 18 Gal. 625 (quoted with approval in Lewis v. Smith, 21 R. I. 324, 43 Atl. 542), it was said that, in ■effect, a dismissal is a final judgment in favor of the defendant in the action in which it was rendered, but does not preclude the plaintiff from bringing another suit on the same •cause of action. To the same effect was the decision of the Court of Appeals of Texas, in Brackenridge v. State, 27 Tex. App. 513, 11 S. W. 630, 4 L. R. A. 360. In Haldeman v. United States, 91 U. S. 584, 23 L. Ed. 433, it was held that a judgment, reading, “that the suit is not prosecuted and be dismissed,” was .a judgment of nonsuit, although, as the court observed, the customary technical language was not used; and it was said that the judgment of dismissal did not imply that the plaintiff had no cause of action, or that he had renounced whatever cause of action he had, or that the matter was adjudged. In Taft v. Northern Transp. Co., 56 N. H. 414, and in Greely v. Winsor, 3 S. D. 138, 52 N. W. 674, it was said that the term “dismissed" .had acquired a technical meaning in suits at law, signifying, not a final judgment of the controversy, but an end of that proceeding. And, in Brown v. Brown, 37 N. H. 536, 75 Am. Dec. 154, it was held that a dismissal entered on plaintiff’s motion was distinguishable from an order of dismissal granted by the court after a full hearing on the merits of the suit, in this: That the former is only a judgment of nonsuit, but the latter disposes of the controversy finally.
In the case of Pink v. Martin, 5 La. Ann. 104, and in Hoggatt v. Thomas, 35 La. Ann. 299, it was held that, where a plea was ignored in the judgment because it was not appropriate and was therefore untenable in the proceeding in which it was filed, the judgment was not a bar to the same issue being presented in a subsequent suit in which it was appropriate. And this doctrine, that an issue not decided in the judgment is not res judicata, was affirmed in Buck & Beauchamp v. Blair & Buck, 36 La. Ann. 20; Penouilh v. Abraham, 43 La. Ann. 216, 9 South. 36; and Laroussini v. Werlein, 50 La. Ann. 640, 23 South. 467. On the other hand, it was held, in Granger v. Singleton, 32 La. Ann. 898 ; Bledsoe v. Erwin, 33 La. Ann. 619; Glaude v. Peat, 43 La. Ann. 165, 8 South. 884; Flagg v. Parish of St. Charles, 48 La. Ann. 765, 19 South. 944; and Chadwick v. Gulf States Land & Imp. Co., 49 La. Ann. 757, 22 South. 237, that a judgment dismissing a suit after trial of the issues presented had the same effect as if the judgment had expressly rejected the plaintiff’s demand. Hence it appears that the force and effect of a decree, as res judicata, depends, not upon whether the word “dismissed” or the word “rejected” was used in the decree, but upon the issues considered and the stage of the proceedings at which the order or decree was rendered.
Discontinuance at common law resulted from a failure of the plaintiff to continue the cause from day to day or from term to term from the commencement of the suit un
Notwithstanding the expression in our Code of Practice is that the plaintiff may “discontinue” his suit at any time before final judgment and thereafter bring the suit anew, our opinion is that, if the plaintiff desires a discontinuance at a stage of the proceedings when no other judgment than one of nonsuit, or dismissal without prejudice, could be rendered, it makes no difference -in the effect of the judgment whether the plaintiff moves that the suit be “discontinued,” or that it be “dismissed,” although we are not prepared to say that the judgment would not be final and conclusive of the issues presented if the suit were dismissed on plaintiff’s motion, without any reservation, at a stage in the proceedings when a final judgment might be rendered in favor of the defendant, rejecting the plaintiff’s demand. This was the substance of the decision in Dennistoun v. Rist, 9 La. Ann. 465, viz.:
“Although the distinction between a voluntary and involuntary nonsuit, as it exists at common law, is not, with us, established in direct terms; yet it may be fairly inferred, and has been frequently recognized by the court; and we are unable to see any essential difference between a discontinuance as known in our practice and a voluntary nonsuit.”
In the decision last quoted, the following entry on the minutes was held to be a discontinuance, viz.:
“On motion of * * * counsel for plaintiffs, it is ordered that judgment be rendered against the plaintiffs, as in case of nonsuit.”
In article 3519 of our Civil Code, treating of the interruption of prescription by citation, the terms “discontinue” and “abandon” are used, perhaps as equivalents, viz.:
“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.”
Our conclusion is that the judgment, dismissing the plaintiff’s first suit on his own motion, before any issue was submitted to the court for decision, had no more force or effect than if the plaintiff had discontinued his first suit. Hence we conclude that the district judge ruled correctly, in overruling the plea of res judicata and in considering and deciding the exception of no cause or right of action, which he had not decided in the first suit.
The only allegation of fraud or misrepresentation made in the petition is that the defendant and her husband “fraudulently represented to petitioner that he was wasting, mismanaging, and jeopardizing his estate.” This complaint cannot, in our opinion, justify the annulment of the sale. The plaintiff was of full age of majority, possessed of his faculties, and could not have
“As to the alleged lesion, if this cause of nullity ever existed, it was barred by the prescription of four years. R. C. C. art. 1876.”
The vendor in a sale for less than half the value of the property conveyed has not an absolute right, even within the four years from the date of the contract, to annul it for lesion. The purchaser may elect, within a period to be fixed in an interlocutory decree determining the true value and the terms on which the payment is to be made, either to rescind the sale and take back what has been paid, or to pay the difference in value and have the sale confirmed. Rev.
The plaintiff ratified the contract of sale when he permitted the purchaser to pay the credit portion of the purchase price stated in the deed, more than four years after the sale was made. In an action of nullity for lesion, and for other alleged causes, in Ross v. Ross, 3 La. Ann. 536, it was said:
“It is a rule that admits of no exception that, every man who has the right to attack an onerous contract which the law declares null for his private benefit, makes it valid and obligatory upon him by his ratification, express or implied.”
Our conclusion is that the judgment sustaining the exception of no cause or right of action is correct.
For the reasons assigned, the judgment appealed from is affirmed at the cost of the appellant.