Mack Trucks, Inc. v. Dixon, 142 So. 2d 609

142 So. 2d 609 | La. Ct. App. | 1962

McBRIDE, Judge.

This is one of the seven consolidated cases mentioned in Mack Trucks, Inc. v. Dixon and James F. Toups, d/b/a T & D Contracting Company, 142 So.2d 605, in which an opinion and decree has been handed down by us this day.

In the instant suit (decided below after the advent of the LSA-Code of Civil Procedure), in addition to maintaining the exception to the court’s jurisdiction ratione materiae, the trial judge sustained an exception of no cause or right of action although no such .exception had been interposed by the defendants. However, the trial judge had the right to dismiss the suit. LSA-C.C.P. art. 927 recites that the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit may be noticed by either the trial or appellate court of its own motion.

For the reasons stated in the above-mentioned opinion and decree, the judgment appealed from is annulled by striking therefrom and setting aside that portion thereof which maintained the exception to the lower court’s jurisdiction rati one mate-riae, and as thus amended, and in all other respects, the judgment is affirmed.

Plaintiff is to pay the costs of this appeal.

Reversed in part; affirmed in part.